Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Purchaser, as of the date of execution and delivery hereof, that: (1) The Seller is duly organized as a national banking association and is validly existing under the laws of the United States of America and is duly authorized and qualified to transact any and all business contemplated by this Agreement to be conducted by the Seller in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such state, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to perform any of its other obligations under this Agreement in accordance with the terms thereof. (2) The Seller has the requisite power and authority to sell each Mortgage Loan, and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary action on the part of the Seller the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties thereto, constitutes a legal, valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally or of creditors of depository institutions, the accounts of which are insured by the FDIC, and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (3) The execution and delivery of this Agreement by the Seller, the sale of the Mortgage Loans by the Seller under this Agreement, the consummation of any other of the transactions contemplated by this Agreement, and the fulfillment of or compliance with the terms thereof are in the ordinary course of business of the Seller and will not (a) result in a material breach of any term or provision of the charter or by-laws of the Seller or (b) materially conflict with, result in a material breach, violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Seller is a party or by which it may be bound, or (c) constitute a material violation of any statute, order or regulation applicable to the Seller of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Seller, other than such conflicts, breaches, violations, accelerations or defaults which, individually or on a cumulative basis, would not have a material adverse effect on the Seller and its subsidiaries, taken as a whole, or the consummation of the transactions contemplated by this Agreement; and the Seller is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Seller's ability to perform or meet any of its obligations under this Agreement. (4) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller that would prohibit the execution or delivery of, or performance under, this Agreement by the Seller. (b) The Seller hereby assigns, transfers and conveys to the Purchaser all of its rights with respect to the Mortgage Loans including, without limitation, the representations and warranties of FHHLC made pursuant to MLPA I, together with all rights of the Seller to require FHHLC to cure any breach thereof or to repurchase or substitute for any affected Mortgage Loan in accordance with MLPA I. It is understood and agreed that the obligation under MLPA I of FHHLC to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy, which may be enforced solely against FHHLC and not the Seller, respecting such breach available to the Purchaser on its behalf. The representations and warranties contained in this Agreement shall not be construed as a warranty or guaranty by the Seller as to the future payments by any Mortgagor. It is understood and agreed that the representations and warranties set forth in this Section 4.1 shall survive the sale of the Mortgage Loans to the Purchaser hereunder.
Appears in 14 contracts
Samples: Mortgage Loan Purchase Agreement (First Horizon Asset Securities Inc), Mortgage Loan Purchase Agreement (First Horizon Asset Securities Inc), Mortgage Loan Purchase Agreement (First Horizon Asset Securities Inc)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Purchaser, Depositor that as of the date of execution and delivery hereof, thatClosing Date:
(1i) The Seller is a corporation duly organized as a national banking association and is organized, validly existing and in good standing under the laws of the United States of America governing its creation and is duly authorized existence and qualified to transact any and all business contemplated by this Agreement to be conducted by the Seller in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such state, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to perform any of its other obligations under this Agreement in accordance with the terms thereof.
(2) The Seller has the requisite full corporate power and authority to sell each Mortgage Loanown its property, and to execute, deliver and performcarry on its business as presently conducted, and to enter into and consummate perform its obligations under this Agreement and the Assignment and Assumption Agreement;
(ii) The execution and delivery by the Seller of this Agreement and the Assignment and Assumption Agreement have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and delivery of this Agreement or the Assignment and Assumption Agreement, nor the consummation of the transactions herein or therein contemplated, nor compliance with the provisions hereof or thereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) The execution, delivery and performance by the Seller of this Agreement and the Assignment and Assumption Agreement and the consummation of the transactions contemplated hereby and thereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each of this Agreement and the Assignment and Assumption Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or the Assignment and has duly authorized by all necessary action on Assumption Agreement or (B) with respect to any other matter which in the part judgment of the Seller the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties thereto, constitutes a legal, valid and binding obligation of the Seller, enforceable against will be determined adversely to the Seller in accordance with and will if determined adversely to the Seller materially and adversely affect it or its termsbusiness, except that (a) assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement or the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership Assignment and other similar laws relating to creditors' rights generally or of creditors of depository institutions, the accounts of which are insured by the FDIC, and Assumption Agreement.
(b) the remedy The representations and warranties of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and each Transferor with respect to the discretion Transferred Mortgage Loans in the applicable Transfer Agreement were made as of the court before which date of such Transfer Agreement. To the extent that any proceeding therefor may be brought.
fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (3i) The execution a representation or warranty of a Transferor under the applicable Transfer Agreement and delivery (ii) a representation or warranty of this Agreement by the Seller, the sale of the Mortgage Loans by the Seller under this Agreement, the consummation of any other sole right or remedy of the transactions contemplated Depositor with respect to a breach by this Agreementthe Seller of such representation and warranty (other than a breach by the Seller of the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) shall be the fulfillment right to enforce the obligations of such Transferor under any applicable representation or compliance with warranty made by it. The representations made by the terms thereof are in Seller pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx) shall be direct obligations of the ordinary course of business Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than the representations and will warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) result in a material breach of any term or provision of with the charter or by-laws of applicable Purchase Price for the Seller affected Mortgage Loan or (b) materially conflict withwithin the two-year period following the Closing Date, result with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Date, as to each, that:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in a all material breach, violation respects at the date or acceleration of, or result dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in a material default under, payment) in complying with the terms of any other material agreement or instrument to which Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be insured by a generally acceptable insurer against loss by fire, hazards of extended coverage and such other hazards as are customary in the area where the related Mortgaged Property is a party or by which it may be bound, or (c) constitute a material violation of any statute, order or regulation applicable located pursuant to insurance policies conforming to the Seller requirements of any courtthe guidelines of FNMA or FHLMC. If upon origination of a Transferred Mortgage Loan, regulatory bodythe Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related Mortgagor thereunder to maintain the hazard insurance policy at the Mortgagor’s cost and expense, administrative agency or governmental body having jurisdiction over the Seller, other than such conflicts, breaches, violations, accelerations or defaults which, individually or on a cumulative basis, would not have a material adverse effect and on the Seller Mortgagor’s failure to do so, authorizes the holder of the Mortgage to obtain and its subsidiariesmaintain such insurance at such Mortgagor’s cost and expense, taken as and to seek reimbursement therefor from the Mortgagor. Where required by state law or regulation, each Mortgagor has been given an opportunity to choose the carrier of the required hazard insurance, provided the policy is not a whole“master” or “blanket” hazard insurance policy covering the common facilities of a planned unit development. The hazard insurance policy is the valid and binding obligation of the insurer, or is in full force and effect, and will be in full force and effect and inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement; ;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable Transferred Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller is not had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in breach or violation paragraph (v) above, of any material indenture encumbrance, equity, participation interest, lien, pledge, charge, claim or security interest, and has full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign each Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Title Insurance Policy or other material agreement generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or instrumentomission, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially anything that would impair the Seller's ability to perform or meet any coverage of its obligations under this Agreement.such mortgagee Title Insurance Policy;
(4viii) No litigation is pending or, to To the best of the Seller's ’s knowledge, no foreclosure action is being threatened against the Seller that would prohibit the execution or delivery of, or performance under, this Agreement by the Sellercommenced with respect to any Transferred Mortgage Loan.
(bix) The Seller hereby assignsThere is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, transfers in the case of any Cooperative Loan, the related cooperative unit) and conveys each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the Purchaser value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(x) There are no mechanics’ or similar liens or claims which have been filed for work, labor or material (and no rights are outstanding that under the law could give rise to such liens) affecting the related Mortgaged Property which are or may be liens prior to, or equal or coordinate with, the lien of the related Mortgage;
(xi) Each Transferred Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, insurance company or similar institution that is supervised and examined by a Federal or State authority, or by a mortgagee approved by the Secretary of Housing and Urban Development pursuant to Sections 203 and 211 of the National Housing Act;
(xii) Each Transferred Mortgage Loan at the time it was made complied in all material respects with applicable local, state, and federal laws including, but not limited to, all applicable predatory and abusive lending laws;
(xiii) As of its rights the Closing Date, each Transferred Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 (determined without regard to Treas. Reg. §1.860G-2(f) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period);
(xiv) As of the Closing Date, other than with respect to Retained Interest, no Transferred Mortgage Loan provides for interest other than at either (i) a single fixed rate in effect throughout the term of the Transferred Mortgage Loans includingLoan or (ii) a single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term of the Transferred Mortgage Loan;
(xv) As of the Closing Date, without limitationno Transferred Mortgage Loan is the subject of pending or final foreclosure proceedings;
(xvi) As of the Closing Date, based on delinquencies in payment on the Transferred Mortgage Loans, the representations and warranties of FHHLC made pursuant Seller would not initiate foreclosure proceedings with respect to MLPA I, together with all rights of the Seller to require FHHLC to cure any breach thereof or to repurchase or substitute for any affected Transferred Mortgage Loan in accordance with MLPA I. It is understood and agreed that prior to the obligation under MLPA I of FHHLC to cure, repurchase or replace any next scheduled payment date on such Transferred Mortgage Loan;
(xvii) No Transferred Mortgage Loan as to which is a breach has occurred and “high-cost,” “high-cost home,” “covered,” “high-risk home” or “predatory” loan under any applicable federal, state or local predatory or abusive lending law (or a similarly classified loan using different terminology under a law imposing heightened regulatory scrutiny or additional legal liability for residential mortgage loans having high interest rates, points and/or fees); no Transferred Mortgage Loan originated on or after November 27, 2003 is continuing shall constitute the sole remedy, which may be enforced solely against FHHLC and not the Seller, respecting such breach available a “High-Cost Home Loan” subject to the Purchaser on its behalf. The representations and warranties contained in this Agreement shall not be construed as New Jersey Home Ownership Security Act of 2003 (N.J.S.A. 46:10B-22 et seq.); no Transferred Mortgage Loan is a warranty or guaranty by the Seller as “High-Cost Home Loan” subject to the future payments by any Mortgagor. It is understood and agreed that the representations and warranties set forth in this Section 4.1 shall survive the sale of the Mortgage Loans to the Purchaser hereunder.New Mexico Home Loan Protection Act (N.M.
Appears in 11 contracts
Samples: Mortgage Loan Sale and Assignment Agreement (Structured Adjustable Rate Mortgage Loan Trust Series 2006-7), Mortgage Loan Sale and Assignment Agreement (Structured Adjustable Rate Mortgage Loan Trust Series 2007-1), Mortgage Loan Sale and Assignment Agreement (Structured Adjustable Rate Mortgage Loan Trust Series 2007-3)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Purchaser, as of the date of execution and delivery hereof, that:
(1) The Seller is duly organized as a national banking association Kansas corporation and is validly existing and in good standing under the laws of the United States State of America Kansas and is duly authorized and qualified to transact any and all business contemplated by this Agreement to be conducted by the Seller in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such state, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to perform any of its other obligations under this Agreement in accordance with the terms thereof.
(2) The Seller has the requisite full corporate power and authority to sell each Mortgage Loan, and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary corporate action on the part of the Seller the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties thereto, constitutes a legal, valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors' ’ rights generally or of creditors of depository institutions, the accounts of which are insured by the FDIC, and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
(3) The execution and delivery of this Agreement by the Seller, the sale of the Mortgage Loans by the Seller under this Agreement, the consummation of any other of the transactions contemplated by this Agreement, and the fulfillment of or compliance with the terms thereof are in the ordinary course of business of the Seller and will not (a) result in a material breach of any term or provision of the charter or by-laws of the Seller or (b) materially conflict with, result in a material breach, violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Seller is a party or by which it may be bound, or (c) constitute a material violation of any statute, order or regulation applicable to the Seller of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Seller, other than such conflicts, breaches, violations, accelerations or defaults which, individually or on a cumulative basis, would not have a material adverse effect on the Seller and its subsidiaries, taken as a whole, or the consummation of the transactions contemplated by this Agreement; and the Seller is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Seller's ’s ability to perform or meet any of its obligations under this Agreement.
(4) No litigation is pending or, to the best of the Seller's ’s knowledge, threatened against the Seller that would prohibit the execution or delivery of, or performance under, this Agreement by the Seller.
(5) The Seller is a member of MERS in good standing, and will comply in all material respects with the rules and procedures of MERS in connection with the servicing of the MERS Mortgage Loans for as long as such Mortgage Loans are registered with MERS.
(b) The Seller hereby assigns, transfers makes the representations and conveys warranties set forth in Schedule B hereto to the Purchaser, as of the Closing Date, or if so specified therein, as of the Cut-off Date.
(c) Upon discovery by either of the parties hereto of a breach of a representation or warranty made pursuant to Schedule B hereto that materially and adversely affects the interests of the Purchaser all in any Mortgage Loan, the party discovering such breach shall give prompt notice thereof to the other party. The Seller hereby covenants that within 90 days of the earlier of its rights discovery or its receipt of written notice from the Purchaser of a breach of any representation or warranty made pursuant to Schedule B hereto which materially and adversely affects the interests of the Purchaser in any Mortgage Loan, it shall cure such breach in all material respects, and if such breach is not so cured, shall, (i) if such 90-day period expires prior to the second anniversary of the Closing Date, remove such Mortgage Loan (a “Deleted Mortgage Loan”) from the pool of mortgages listed on Schedule B hereto and substitute in its place a Substitute Mortgage Loan, in the manner and subject to the conditions set forth in this Section; or (ii) repurchase the affected Mortgage Loan or Mortgage Loans from the Purchaser at the Mortgage Loan Purchase Price in the manner set forth below. With respect to the representations and warranties described in this Section which are made to the best of the Seller’s knowledge, if it is discovered by either the Seller or the Purchaser that the substance of such representation and warranty is inaccurate and such inaccuracy materially and adversely affects the value of the related Mortgage Loan or the interests of the Purchaser therein, notwithstanding the Seller’s lack of knowledge with respect to the substance of such representation or warranty, such inaccuracy shall be deemed a breach of the applicable representation or warranty. With respect to any Substitute Mortgage Loan or Loans, the Seller shall deliver to the Trustee or to the Custodian on its behalf the Mortgage Note, the Mortgage, the related assignment of the Mortgage, and such other documents and agreements as are required by Section 3.1, with the Mortgage Note endorsed and the Mortgage assigned as required by Section 3.1. No substitution is permitted to be made in any calendar month after the Determination Date for such month. Scheduled Payments due with respect to Substitute Mortgage Loans includingin the month of substitution will be retained by the Seller. Upon such substitution, without limitationthe Substitute Mortgage Loan or Loans shall be subject to the terms of this Agreement in all respects, and the Seller shall be deemed to have made with respect to such Substitute Mortgage Loan or Loans, as of the date of substitution, the representations and warranties of FHHLC made pursuant to MLPA I, together Schedule B hereto with all rights of the Seller respect to require FHHLC to cure any breach thereof or to repurchase or substitute for any affected such Mortgage Loan in accordance with MLPA I. Loan. It is understood and agreed that the obligation under MLPA I this Agreement of FHHLC the Seller to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy, which may be enforced solely remedy against FHHLC and not the Seller, Seller respecting such breach available to the Purchaser on its behalf. The representations and warranties contained in this Agreement shall not be construed as a warranty or guaranty by the Seller as to the future payments by any Mortgagor. It is understood and agreed that the representations and warranties set forth in this Section 4.1 shall survive the sale of the Mortgage Loans to the Purchaser hereunder.
Appears in 10 contracts
Samples: Mortgage Loan Purchase Agreement (First Horizon Asset Sec Mort Pass THR Certs Ser 2006-Fa7), Mortgage Loan Purchase Agreement (First Horizon Asset Sec Mort Pass THR Certs Ser 2007-Fa3), Mortgage Loan Purchase Agreement (First Horizon Asset Sec Mort Pass THR Certs Ser 2006-Aa3)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Purchaser, as of the date of execution and delivery hereof, Owner Trustee that:
(1a) The Seller has been duly organized and is validly existing as a corporation in good standing under the laws of the State of Delaware, with power and authority to own its properties and to conduct its business as such properties are presently owned and such business is presently conducted and had at all relevant times, and now has, power, authority and legal right to acquire and own the Receivables.
(b) The Seller is duly organized qualified to do business as a national banking association foreign corporation in good standing, and is validly existing under the laws of the United States of America has obtained all necessary licenses and is duly authorized and qualified to transact any and approvals in all business contemplated by this Agreement to be conducted by the Seller in any state jurisdictions in which a Mortgaged Property is located the ownership or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with lease of property or the doing business laws of any such state, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to perform any conduct of its other obligations under this Agreement in accordance with the terms thereofbusiness requires such qualifications.
(2c) The Seller has the requisite power and authority to execute and deliver this Agreement and to carry out its terms, the Seller has full power and authority to sell each Mortgage Loan, and assign the property to execute, deliver be sold and perform, assigned to and to enter into deposited with the Issuer as part of the Trust and consummate the transactions contemplated by this Agreement and Seller has duly authorized such sale and assignment to the Issuer by all necessary action on the part of the Seller corporate action; and the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof Agreement have been duly authorized by the other parties thereto, constitutes a legal, valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally or of creditors of depository institutions, the accounts of which are insured by the FDIC, and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be broughtall necessary corporate action.
(3d) The execution and delivery of this Agreement by the Seller, the sale of the Mortgage Loans by the Seller under this Agreement, the consummation of any other of the transactions contemplated by this Agreement, Agreement and the fulfillment of or compliance with the terms thereof are in the ordinary course of business of the Seller and will this Agreement do not (a) conflict with, result in a material any breach of any term or provision of the charter terms and provisions of or constitute (with or without notice or lapse of time) a default under, the certificate of incorporation or by-laws of the Seller or (b) materially conflict with, result in a material breach, violation or acceleration ofSeller, or result in a material default underany indenture, the terms of any other material agreement or other instrument to which the Seller is a party or by which it may be is bound, or (c) constitute a material violation result in the creation or imposition of any statuteLien upon any of its properties pursuant to the terms of any such indenture, order agreement or other instrument (other than pursuant to the Basic Documents), or violate any law or, to the Seller's knowledge, any order, rule or regulation applicable to the Seller of any court or of any federal or state regulatory body, administrative agency or other governmental instrumentality having jurisdiction over the Seller or any of its properties.
(e) This Agreement, when duly executed and delivered, shall constitute a legal, valid and binding obligation of the Seller enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights in general and by general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law.
(f) There are no proceedings or, to the Seller's knowledge, investigations pending or, to the Seller's knowledge, threatened before any court, regulatory body, administrative agency or other tribunal or governmental body instrumentality having jurisdiction over the SellerSeller or its properties (i) asserting the invalidity of this Agreement or any Certificates issued pursuant hereto or, other than (ii) seeking to prevent the issuance of such conflicts, breaches, violations, accelerations or defaults which, individually or on a cumulative basis, would not have a material adverse effect on the Seller and its subsidiaries, taken as a whole, Certificates or the consummation of any of the transactions contemplated by this Agreement; Agreement or (iii) seeking any determination or ruling that might materially and adversely affect the performance by the Seller is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Seller's ability to perform or meet any of its obligations under under, or the validity or enforceability of, such Certificates or this Agreement.
(4) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller that would prohibit the execution or delivery of, or performance under, this Agreement by the Seller.
(b) The Seller hereby assigns, transfers and conveys to the Purchaser all of its rights with respect to the Mortgage Loans including, without limitation, the representations and warranties of FHHLC made pursuant to MLPA I, together with all rights of the Seller to require FHHLC to cure any breach thereof or to repurchase or substitute for any affected Mortgage Loan in accordance with MLPA I. It is understood and agreed that the obligation under MLPA I of FHHLC to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy, which may be enforced solely against FHHLC and not the Seller, respecting such breach available to the Purchaser on its behalf. The representations and warranties contained in this Agreement shall not be construed as a warranty or guaranty by the Seller as to the future payments by any Mortgagor. It is understood and agreed that the representations and warranties set forth in this Section 4.1 shall survive the sale of the Mortgage Loans to the Purchaser hereunder.
Appears in 7 contracts
Samples: Trust Agreement (Navistar Financial Retail Receivables Corporation), Trust Agreement (Navistar Financial Retail Receivables Corporation), Trust Agreement (Navistar Financial Retail Receivables Corporation)
Representations and Warranties of the Seller. The Seller represents, warrants and covenants to the Purchaser that as of each Closing Date or as of such date specifically provided herein:
(a) The Seller hereby represents and warrants to the Purchaseris a corporation duly organized, as of the date of execution and delivery hereof, that:
(1) The Seller is duly organized as a national banking association and is validly existing and in good standing under the laws of the United States jurisdiction of America its incorporation and has all licenses necessary to carry out its business as now being conducted, and is duly authorized licensed and qualified to transact any business in and all business contemplated by this Agreement to be conducted by is in good standing under the Seller in any laws of each state in which a 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 andand no demand for such licensing or qualification has been made upon the Seller by any such state, and in any event, event the Seller is in compliance with the doing business laws of any such state, state to the extent necessary to ensure its ability to enforce the enforceability of each Mortgage Loan and to perform any the servicing of its other obligations under this Agreement the Mortgage Loans in accordance with the terms thereof.of this Agreement;
(2b) The Seller has the requisite full power and authority and legal right to hold, transfer and convey each Mortgage Loan, to sell each Mortgage Loan, Loan and to execute, deliver and perform, and to enter into and consummate the all transactions contemplated by this Agreement Agreement, the related Purchase Price and Terms Letter and the related Assignment and Conveyance and to conduct its business as presently conducted; the Seller has duly authorized by all necessary action on the part of the Seller the execution, delivery and performance of this Agreement and any agreements contemplated hereby, has duly executed and delivered this Agreement; , the related Purchase Price and Terms Letter and the related Assignment and Conveyance, and any agreements contemplated hereby, and this Agreement, assuming the due authorizationrelated Purchase Price and Terms Letter, execution the related Assignment and delivery thereof by Conveyance and each Assignment of Mortgage to the other parties theretoPurchaser and any agreements contemplated hereby, constitutes a constitute the legal, valid and binding obligation obligations of the Seller, enforceable against the Seller it in accordance with its their respective terms, except that (a) the as such enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership reorganization and other similar laws relating laws, and by equitable principles affecting the enforceability of the rights of creditors; and all requisite corporate action has been taken by the Seller to creditors' rights generally or of creditors of depository institutionsmake this Agreement, the accounts of which are insured by related Purchase Price and Terms Letter, the FDIC, related Assignment and Conveyance and all agreements contemplated hereby valid and binding upon the Seller in accordance with their respective terms;
(bc) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion None of the court before which any proceeding therefor may be brought.
(3) The execution and delivery of this Agreement by Agreement, the Sellerrelated Purchase Price and Terms Letter, the related Assignment and Conveyance, the sale of the Mortgage Loans by to the Seller under Purchaser, the consummation of the transactions contemplated hereby, or the fulfillment of or compliance with the terms and conditions of this Agreement, the consummation related Purchase Price and Terms Letter or the related Assignment and Conveyance will conflict with any of the terms, conditions or provisions of the Seller’s charter or by-laws or materially conflict with or result in a material breach of any other of the terms, conditions or provisions of any legal restriction or any material agreement or instrument to which the Seller is now a party or by which it is bound, or constitute a default or result in an acceleration under any of the foregoing, or result in the material violation of any law, rule, regulation, order, judgment or decree to which the Seller or its property is subject;
(d) There is no litigation, suit, proceeding or investigation pending or, to the Seller’s knowledge, threatened, or any order or decree outstanding, which is reasonably likely to have a material adverse effect on the sale of the Mortgage Loans, the execution, delivery, performance or enforceability of this Agreement, the related Purchase Price and Terms Letter or the related Assignment and Conveyance, or which is reasonably likely to have a material adverse effect on the financial condition of the Seller;
(e) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Seller of or compliance by the Seller with this Agreement, the related Purchase Price and Terms Letter and the related Assignment and Conveyance, except for consents, approvals, authorizations and orders which have been obtained;
(f) The consummation of the transactions contemplated by this Agreement, the related Purchase Price and Terms Letter and the fulfillment of or compliance with the terms thereof related Assignment and Conveyance are in the ordinary course of business of the Seller Seller, and will not (a) result in a material breach of any term or provision the transfer, assignment and conveyance of the charter or by-laws of Mortgage Notes and the Mortgages by the Seller or (b) materially conflict with, result in a material breach, violation or acceleration of, or result in a material default underpursuant to this Agreement, the terms of any other material agreement or instrument to which the Seller is a party or by which it may be bound, or (c) constitute a material violation of any statute, order or regulation applicable to the Seller of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Seller, other than such conflicts, breaches, violations, accelerations or defaults which, individually or on a cumulative basis, would not have a material adverse effect on the Seller related Purchase Price and its subsidiaries, taken as a whole, or the consummation of the transactions contemplated by this Agreement; Terms Letter and the Seller is related Assignment and Conveyance are not subject to bulk transfer or any similar statutory provisions in breach or violation of effect in any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Seller's ability to perform or meet any of its obligations under this Agreement.applicable jurisdiction;
(4) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller that would prohibit the execution or delivery of, or performance under, this Agreement by the Seller.
(bg) The Seller hereby assigns, transfers and conveys to the Purchaser all of its rights with respect to has not used selection procedures that identified the Mortgage Loans including, without limitation, the representations and warranties of FHHLC made pursuant to MLPA I, together with all rights of the Seller to require FHHLC to cure any breach thereof as being less desirable or to repurchase or substitute for any affected Mortgage Loan valuable than other comparable mortgage loans in accordance with MLPA I. It is understood and agreed that the obligation under MLPA I of FHHLC to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy, which may be enforced solely against FHHLC and not the Seller, respecting such breach available to ’s portfolio at the Purchaser on its behalf. Cut-off Date;
(h) The representations and warranties contained in this Agreement shall not be construed as a warranty or guaranty by the Seller as to the future payments by any Mortgagor. It is understood and agreed that the representations and warranties set forth in this Section 4.1 shall survive will treat the sale of the Mortgage Loans to the Purchaser hereunderas a sale for reporting and accounting purposes and, to the extent appropriate, for federal income tax purposes;
(i) The Seller 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 Seller 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 Seller unable to comply with eligibility requirements or which would require notification to either Xxxxxx Mae or Xxxxxxx Mac;
(j) The Seller 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. 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;
(k) Neither this Agreement nor any information, statement, tape, diskette, form, report, or other document furnished or to be furnished pursuant to this Agreement or any Reconstitution Agreement or in connection with the transactions contemplated hereby (including any Securitization Transfer or Whole Loan Transfer) contains or will contain any untrue statement of fact or omits or will omit to state a fact necessary to make the statements contained herein or therein not misleading;
(l) The Seller acknowledges and agrees that the Servicing Fee represents reasonable compensation for performing such services and that the entire Servicing Fee shall be treated by the Seller, for accounting and tax purposes, as compensation for the servicing and administration of the Mortgage Loans pursuant to this Agreement;
(m) The Seller has delivered to the Purchaser financial statements as to its last two complete fiscal years for which financial statements are available. All such financial statements fairly present the pertinent results of operations and changes in financial position for each of such periods and the financial position at the end of each such period of the Seller and its subsidiaries and have been prepared in accordance with GAAP consistently applied throughout the periods involved, except as set forth in the notes thereto. There has been no change in the business, operations, financial condition, properties or assets of the Seller since the date of the Seller’s financial statements that would have a material adverse effect on its ability to perform its obligations under this Agreement, the related Purchase Price and Terms Letter or the related Assignment and Conveyance;
(n) The Seller 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 sale of the Mortgage Loans; and
(o) The Seller is a member of MERS in good standing, and will comply in all material respects with the rules and procedures of MERS in connection with the servicing of the MERS Mortgage Loans for as long as such Mortgage Loans are registered with MERS.
Appears in 7 contracts
Samples: Seller’s Purchase, Warranties and Servicing Agreement (Morgan Stanley Mortgage Loan Trust 2007-10xs), Seller’s Purchase, Warranties and Servicing Agreement (Morgan Stanley Mortgage Loan Trust 2007-11ar), Seller’s Purchase, Warranties and Servicing Agreement (Morgan Stanley Mortgage Loan Trust 2007-12)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Purchaser, as of the date of execution and delivery hereof, Owner Trustee that:
(1a) The Seller has been duly organized and is validly existing as a corporation in good standing under the laws of the State of Delaware, with power and authority to own its properties and to conduct its business as such properties are presently owned and such business is presently conducted and had at all relevant times, and now has, power, authority and legal right to acquire and own the Receivables.
(b) The Seller is duly organized qualified to do business as a national banking association foreign corporation in good standing, and is validly existing under the laws of the United States of America has obtained all necessary licenses and is duly authorized and qualified to transact any and approvals in all business contemplated by this Agreement to be conducted by the Seller in any state jurisdictions in which a Mortgaged Property is located the ownership or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with lease of property or the doing business laws of any such state, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to perform any conduct of its other obligations under this Agreement in accordance with the terms thereofbusiness requires such qualifications.
(2c) The Seller has the requisite power and authority to execute and deliver this Agreement and to carry out its terms, the Seller has full power and authority to sell each Mortgage Loanand assign the property to be sold and assigned to and deposited with the Trust, and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and Seller has duly authorized such sale and assignment to the Trust by all necessary action on the part of the Seller corporate action, and the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof Agreement have been duly authorized by the other parties thereto, constitutes a legal, valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally or of creditors of depository institutions, the accounts of which are insured by the FDIC, and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be broughtall necessary corporate action.
(3d) The execution and delivery of this Agreement by the Seller, the sale of the Mortgage Loans by the Seller under this Agreement, the consummation of any other of the transactions contemplated by this Agreement, Agreement and the fulfillment of or compliance with the terms thereof are in the ordinary course of business of the Seller and will this Agreement do not (a) conflict with, result in a material any breach of any term or provision of the charter terms and provisions of or constitute (with or without notice or lapse of time) a default under, the certificate of incorporation or by-laws of the Seller or (b) materially conflict with, result in a material breach, violation or acceleration ofSeller, or result in a material default underany indenture, the terms of any other material agreement or other instrument to which the Seller is a party or by which it may be is bound, or (c) constitute a material violation result in the creation or imposition of any statuteLien upon any of its properties pursuant to the terms of any such indenture, order agreement or other instrument (other than pursuant to the Basic Documents), or violate any law or, to the Seller’s knowledge, any order, rule or regulation applicable to the Seller of any court or of any federal or state regulatory body, administrative agency or other governmental instrumentality having jurisdiction over the Seller or any of its properties.
(e) This Agreement, when duly executed and delivered, shall constitute a legal, valid and binding obligation of the Seller enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors’ rights in general and by general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law.
(f) There are no proceedings or, to the Seller’s knowledge, investigations pending or, to the Seller’s knowledge, threatened before any court, regulatory body, administrative agency or other tribunal or governmental body instrumentality having jurisdiction over the SellerSeller or its properties (i) asserting the invalidity of this Agreement or any Certificates issued pursuant hereto or, other than (ii) seeking to prevent the issuance of such conflicts, breaches, violations, accelerations or defaults which, individually or on a cumulative basis, would not have a material adverse effect on the Seller and its subsidiaries, taken as a whole, Certificates or the consummation of any of the transactions contemplated by this Agreement; Agreement or (iii) seeking any determination or ruling that might materially and adversely affect the performance by the Seller is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Seller's ability to perform or meet any of its obligations under under, or the validity or enforceability of, such Certificates or this Agreement.
(4) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller that would prohibit the execution or delivery of, or performance under, this Agreement by the Seller.
(b) The Seller hereby assigns, transfers and conveys to the Purchaser all of its rights with respect to the Mortgage Loans including, without limitation, the representations and warranties of FHHLC made pursuant to MLPA I, together with all rights of the Seller to require FHHLC to cure any breach thereof or to repurchase or substitute for any affected Mortgage Loan in accordance with MLPA I. It is understood and agreed that the obligation under MLPA I of FHHLC to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy, which may be enforced solely against FHHLC and not the Seller, respecting such breach available to the Purchaser on its behalf. The representations and warranties contained in this Agreement shall not be construed as a warranty or guaranty by the Seller as to the future payments by any Mortgagor. It is understood and agreed that the representations and warranties set forth in this Section 4.1 shall survive the sale of the Mortgage Loans to the Purchaser hereunder.
Appears in 7 contracts
Samples: Trust Agreement (Navistar Financial Corp), Trust Agreement (Navistar Financial Retail Rec Corp Navistar Fin 04 a Own Tr), Trust Agreement (Navistar Financial Corp)
Representations and Warranties of the Seller. The Seller represents, warrants and covenants to the Purchaser that as of each Closing Date or as of such date specifically provided herein:
(a) The Seller hereby represents and warrants to the Purchaser, as of the date of execution and delivery hereof, that:
(1) The Seller is duly organized as a national banking association and is organized, validly existing and in good standing under the laws of the United States state of America its formation and has all licenses necessary to carry out its business as now being conducted, and is duly authorized licensed and qualified to transact any business in and all business contemplated by this Agreement to be conducted by is in good standing under the Seller in any laws of each state in which a 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 andand no demand for such licensing or qualification has been made upon such Seller by any such state, and in any event, event such Seller is in compliance with the doing business laws of any such state, state to the extent necessary to ensure its ability to enforce the enforceability of each Mortgage Loan and to perform any the servicing of its other obligations under this Agreement the Mortgage Loans in accordance with the terms thereof.of this Agreement;
(2b) The Seller has the requisite full power and authority and legal right to hold, transfer and convey each Mortgage Loan, to sell each Mortgage Loan, Loan and to execute, deliver and perform, and to enter into and consummate the all transactions contemplated by this Agreement and to conduct its business as presently conducted, has duly authorized by all necessary action on the part of the Seller the execution, delivery and performance of this Agreement; Agreement and any agreements contemplated hereby, has duly executed and delivered this Agreement, assuming and any agreements contemplated hereby, and this Agreement and each Assignment to the due authorization, execution Purchaser and delivery thereof by the other parties theretoany agreement contemplated hereby, constitutes a legal, valid and binding obligation of the Seller, enforceable against the Seller it in accordance with its terms, except that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally or of creditors of depository institutions, the accounts of which are insured all requisite corporate action has been taken by the FDIC, Seller to make this Agreement and all agreements contemplated hereby valid and binding upon the Seller in accordance with their terms;
(bc) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion None of the court before which any proceeding therefor may be brought.
(3) The execution and delivery of this Agreement Agreement, the origination of the Mortgage Loans by the Seller, the sale of the Mortgage Loans by to the Seller under this AgreementPurchaser, the consummation of any other of the transactions contemplated by this Agreementhereby, and or the fulfillment of or compliance with the terms thereof are and conditions of this Agreement will conflict with any of the terms, conditions or provisions of the Seller’s charter or by laws or materially conflict with or result in a material breach of any of the terms, conditions or provisions of any legal restriction or any agreement or instrument to which the Seller is now a party or by which it is bound, or constitute a default or result in an acceleration under any of the foregoing, or result in the material violation of any law, rule, regulation, order, judgment or decree to which the Seller or its property is subject;
(d) There is no litigation, suit, proceeding or investigation pending or, to the Seller’s knowledge, threatened, or any order or decree outstanding, with respect to the Seller which is reasonably likely to have a material adverse effect on the sale of the Mortgage Loans, the execution, delivery, performance or enforceability of this Agreement, or which is reasonably likely to have a material adverse effect on the financial condition of the Seller;
(e) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Seller of or compliance by the Seller with this Agreement, except for consents, approvals, authorizations and orders which have been obtained;
(f) The consummation of the transactions contemplated by this Agreement is in the ordinary course of business of the Seller Seller, and will not (a) result in a material breach of any term or provision the transfer, assignment and conveyance of the charter or by-laws of Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to bulk transfer or (b) materially conflict with, result any similar statutory provisions in a material breach, violation or acceleration of, or result effect in a material default under, the terms of any other material agreement or instrument to which the Seller is a party or by which it may be bound, or (c) constitute a material violation of any statute, order or regulation applicable to the Seller of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Seller, other than such conflicts, breaches, violations, accelerations or defaults which, individually or on a cumulative basis, would not have a material adverse effect on the Seller and its subsidiaries, taken as a whole, or the consummation of the transactions contemplated by this Agreement; and the Seller is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Seller's ability to perform or meet any of its obligations under this Agreement.jurisdiction;
(4) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller that would prohibit the execution or delivery of, or performance under, this Agreement by the Seller.
(bg) The Seller hereby assigns, transfers and conveys to the Purchaser all of its rights with respect to the Mortgage Loans including, without limitation, the representations and warranties of FHHLC made pursuant to MLPA I, together with all rights of the Seller to require FHHLC to cure any breach thereof or to repurchase or substitute for any affected Mortgage Loan in accordance with MLPA I. It is understood and agreed that the obligation under MLPA I of FHHLC to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy, which may be enforced solely against FHHLC and not the Seller, respecting such breach available to the Purchaser on its behalf. The representations and warranties contained in this Agreement shall not be construed as a warranty or guaranty by the Seller as to the future payments by any Mortgagor. It is understood and agreed that the representations and warranties set forth in this Section 4.1 shall survive will treat the sale of the Mortgage Loans to the Purchaser hereunderas a sale for reporting and accounting purposes and, to the extent appropriate, for federal income tax purposes;
(h) Seller is an approved seller/servicer of residential fixed and adjustable rate mortgage loans for FNMAandFHLMC and is a HUD approved mortgage pursuant to Section 203 of the National Housing Act, with such facilities, procedures and personnel necessary for the sound servicing of mortgage loans of the same type as the Mortgage Loans. The Seller is duly qualified, licensed, registered and otherwise authorized under all applicable federal, state and local laws, and regulations, if applicable, meets the minimum capital requirements set forth by the OCC, and is in good standing to sell mortgage loans to and service mortgage loans for FNMAand FHLMC and no event has occurred which would make Seller unable to comply with eligibility requirements or which would require notification to either FNMA or FHLMC;
(i) The Seller 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. 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;
(j) No statement, tape, diskette, form, report or other document prepared by, or on behalf of, Seller pursuant to this Agreement or in connection with the transactions contemplated hereby, contains or will contain any statement that is or will be inaccurate or misleading in any material respect;
(k) The Seller acknowledges and agrees that the Servicing Fee represents reasonable compensation for performing such services and that the entire Servicing Fee shall be treated by the Seller, for accounting and tax purposes, as compensation for the servicing and administration of the Mortgage Loans pursuant to this Agreement and the consideration received by the Seller upon the sale of the Mortgage Loans hereunder constitutes fair consideration and reasonably equivalent value for the Mortgage Loans;
(l) The Seller has delivered to the Purchaser financial statements as to its last two complete fiscal years. All such financial statements fairly present the pertinent results of operations and changes in financial position for each of such periods and the financial position at the end of each such period of the Seller and its subsidiaries and have been prepared in accordance with GAAP consistently applied throughout the periods involved, except as set forth in the notes thereto. There has been no change in the business, operations, financial condition, properties or assets of the Seller since the date of the Seller’s financial statements that would have a material adverse effect on its ability to perform its obligations under this Agreement;
(m) Except as disclosed in this Agreement, the Seller 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 sale of the Mortgage Loans pursuant to this Agreement. Seller will pay any commission or compensation to any broker, investment banker, agent or other person who may be entitled thereto in connection with the sale of the Mortgage Loans pursuant to this Agreement. Nothing in this Section 3.01(m) shall prohibit or limit Seller’s use of a mortgage loan broker in connection with the origination of any Mortgage Loan, and Seller has paid any commission or compensation to any mortgage loan broker and/or correspondent lenders who may be entitled thereto in connection with the origination of any Mortgage Loan.
Appears in 5 contracts
Samples: Purchase Agreement (STARM Mortgage Loan Trust 2007-3), Purchase Agreement (Starm Mortgage Loan Trust 2007-2), Purchase Agreement (MASTR Asset Securitization Trust 2006-1)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Purchaser, as of the date of execution and delivery hereof, that:
(1) The Seller is duly organized as a national banking association and is validly existing and in good standing under the laws of the United States of America and is duly authorized and qualified to transact any and all business contemplated by this Agreement to be conducted by the Seller in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such state, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to perform any of its other obligations under this Agreement in accordance with the terms thereof.
(2) The Seller has the requisite power and authority to sell each Mortgage Loan, and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary action on the part of the Seller the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties thereto, constitutes a legal, valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors' ’ rights generally or of creditors of depository institutions, the accounts of which are insured by the FDIC, and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
(3) The execution and delivery of this Agreement by the Seller, the sale of the Mortgage Loans by the Seller under this Agreement, the consummation of any other of the transactions contemplated by this Agreement, and the fulfillment of or compliance with the terms thereof are in the ordinary course of business of the Seller and will not (a) result in a material breach of any term or provision of the charter or by-laws of the Seller or (b) materially conflict with, result in a material breach, violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Seller is a party or by which it may be bound, or (c) constitute a material violation of any statute, order or regulation applicable to the Seller of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Seller, other than such conflicts, breaches, violations, accelerations or defaults which, individually or on a cumulative basis, would not have a material adverse effect on the Seller and its subsidiaries, taken as a whole, or the consummation of the transactions contemplated by this Agreement; and the Seller is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Seller's ’s ability to perform or meet any of its obligations under this Agreement.
(4) No litigation is pending or, to the best of the Seller's ’s knowledge, threatened against the Seller that would prohibit the execution or delivery of, or performance under, this Agreement by the Seller.
(5) The Seller is a member of MERS in good standing, and will comply in all material respects with the rules and procedures of MERS in connection with the servicing of the MERS Mortgage Loans for as long as such Mortgage Loans are registered with MERS.
(b) The Seller hereby assigns, transfers makes the representations and conveys warranties set forth in Schedule B hereto to the Purchaser, as of the Closing Date, or if so specified therein, as of the Cut-off Date.
(c) Upon discovery by either of the parties hereto of a breach of a representation or warranty made pursuant to Schedule B hereto that materially and adversely affects the interests of the Purchaser all in any Mortgage Loan, the party discovering such breach shall give prompt notice thereof to the other party. The Seller hereby covenants that within 90 days of the earlier of its rights discovery or its receipt of written notice from the Purchaser of a breach of any representation or warranty made pursuant to Schedule B hereto which materially and adversely affects the interests of the Purchaser in any Mortgage Loan, it shall cure such breach in all material respects, and if such breach is not so cured, shall, (i) if such 90-day period expires prior to the second anniversary of the Closing Date, remove such Mortgage Loan (a “Deleted Mortgage Loan”) from the pools of mortgages listed on Schedule B hereto and substitute in its place a Substitute Mortgage Loan, in the manner and subject to the conditions set forth in this Section; or (ii) repurchase the affected Mortgage Loan or Mortgage Loans from the Purchaser at the Mortgage Loan Purchase Price in the manner set forth below. With respect to the representations and warranties described in this Section which are made to the best of the Seller’s knowledge, if it is discovered by either the Seller or the Purchaser that the substance of such representation and warranty is inaccurate and such inaccuracy materially and adversely affects the value of the related Mortgage Loan or the interests of the Purchaser therein, notwithstanding the Seller’s lack of knowledge with respect to the substance of such representation or warranty, such inaccuracy shall be deemed a breach of the applicable representation or warranty. With respect to any Substitute Mortgage Loan or Loans, the Seller shall deliver to the Trustee or to the Custodian on its behalf the Mortgage Note, the Mortgage, the related assignment of the Mortgage, and such other documents and agreements as are required by Section 3.1, with the Mortgage Note endorsed and the Mortgage assigned as required by Section 3.1. No substitution is permitted to be made in any calendar month after the Determination Date for such month. Scheduled Payments due with respect to Substitute Mortgage Loans includingin the month of substitution will be retained by the Seller. Upon such substitution, without limitationthe Substitute Mortgage Loan or Loans shall be subject to the terms of this Agreement in all respects, and the Seller shall be deemed to have made with respect to such Substitute Mortgage Loan or Loans, as of the date of substitution, the representations and warranties of FHHLC made pursuant to MLPA I, together Schedule B hereto with all rights of the Seller respect to require FHHLC to cure any breach thereof or to repurchase or substitute for any affected such Mortgage Loan in accordance with MLPA I. Loan. It is understood and agreed that the obligation under MLPA I this Agreement of FHHLC the Seller to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy, which may be enforced solely remedy against FHHLC and not the Seller, Seller respecting such breach available to the Purchaser on its behalf. The representations and warranties contained in this Agreement shall not be construed as a warranty or guaranty by the Seller as to the future payments by any Mortgagor. It is understood and agreed that the representations and warranties set forth in this Section 4.1 shall survive the sale of the Mortgage Loans to the Purchaser hereunder.
Appears in 4 contracts
Samples: Mortgage Loan Purchase Agreement (First Horizon Asset Sec Mort Pass THR Certs Ser 2007-Fa4), Mortgage Loan Purchase Agreement (First Horizon Asset Sec Mort Pass THR Certs Ser 2007-Ar2), Mortgage Loan Purchase Agreement (First Horizon Asset Sec Mort Pass THR Certs Ser 2007-Aa2)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Purchaser, as of the date of execution and delivery hereof, that:
(1) The Seller is duly organized as a national banking association Kansas corporation and is validly existing and in good standing under the laws of the United States State of America Kansas and is duly authorized and qualified to transact any and all business contemplated by this Agreement to be conducted by the Seller in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such state, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to perform any of its other obligations under this Agreement in accordance with the terms thereof.
(2) The Seller has the requisite full corporate power and authority to sell each Mortgage Loan, and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary corporate action on the part of the Seller the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties thereto, constitutes a legal, valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors' ’ rights generally or of creditors of depository institutions, the accounts of which are insured by the FDIC, and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
(3) The execution and delivery of this Agreement by the Seller, the sale of the Mortgage Loans by the Seller under this Agreement, the consummation of any other of the transactions contemplated by this Agreement, and the fulfillment of or compliance with the terms thereof are in the ordinary course of business of the Seller and will not (a) result in a material breach of any term or provision of the charter or by-laws of the Seller or (b) materially conflict with, result in a material breach, violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Seller is a party or by which it may be bound, or (c) constitute a material violation of any statute, order or regulation applicable to the Seller of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Seller, other than such conflicts, breaches, violations, accelerations or defaults which, individually or on a cumulative basis, would not have a material adverse effect on the Seller and its subsidiaries, taken as a whole, or the consummation of the transactions contemplated by this Agreement; and the Seller is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Seller's ’s ability to perform or meet any of its obligations under this Agreement.
(4) No litigation is pending or, to the best of the Seller's ’s knowledge, threatened against the Seller that would prohibit the execution or delivery of, or performance under, this Agreement by the Seller.
(b) The Seller hereby assigns, transfers makes the representations and conveys warranties set forth in Schedule B hereto to the Purchaser, as of the Closing Date, or if so specified therein, as of the Cut-off Date.
(c) Upon discovery by either of the parties hereto of a breach of a representation or warranty made pursuant to Schedule B hereto that materially and adversely affects the interests of the Purchaser all in any Mortgage Loan, the party discovering such breach shall give prompt notice thereof to the other party. The Seller hereby covenants that within 90 days of the earlier of its rights discovery or its receipt of written notice from the Purchaser of a breach of any representation or warranty made pursuant to Schedule B hereto which materially and adversely affects the interests of the Purchaser in any Mortgage Loan, it shall cure such breach in all material respects, and if such breach is not so cured, shall, (i) if such 90-day period expires prior to the second anniversary of the Closing Date, remove such Mortgage Loan (a “Deleted Mortgage Loan”) from the pool of mortgages listed on Schedule B hereto and substitute in its place a Substitute Mortgage Loan, in the manner and subject to the conditions set forth in this Section; or (ii) repurchase the affected Mortgage Loan or Mortgage Loans from the Purchaser at the Mortgage Loan Purchase Price in the manner set forth below. With respect to the representations and warranties described in this Section which are made to the best of the Seller’s knowledge, if it is discovered by either the Seller or the Purchaser that the substance of such representation and warranty is inaccurate and such inaccuracy materially and adversely affects the value of the related Mortgage Loan or the interests of the Purchaser therein, notwithstanding the Seller’s lack of knowledge with respect to the substance of such representation or warranty, such inaccuracy shall be deemed a breach of the applicable representation or warranty. With respect to any Substitute Mortgage Loan or Loans, the Seller shall deliver to the Trustee or to the Custodian on its behalf the Mortgage Note, the Mortgage, the related assignment of the Mortgage, and such other documents and agreements as are required by Section 3.1, with the Mortgage Note endorsed and the Mortgage assigned as required by Section 3.1. No substitution is permitted to be made in any calendar month after the Determination Date for such month. Scheduled Payments due with respect to Substitute Mortgage Loans includingin the month of substitution will be retained by the Seller. Upon such substitution, without limitationthe Substitute Mortgage Loan or Loans shall be subject to the terms of this Agreement in all respects, and the Seller shall be deemed to have made with respect to such Substitute Mortgage Loan or Loans, as of the date of substitution, the representations and warranties of FHHLC made pursuant to MLPA I, together Schedule B hereto with all rights of the Seller respect to require FHHLC to cure any breach thereof or to repurchase or substitute for any affected such Mortgage Loan in accordance with MLPA I. Loan. It is understood and agreed that the obligation under MLPA I this Agreement of FHHLC the Seller to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy, which may be enforced solely remedy against FHHLC and not the Seller, Seller respecting such breach available to the Purchaser on its behalf. The representations and warranties contained in this Agreement shall not be construed as a warranty or guaranty by the Seller as to the future payments by any Mortgagor. It is understood and agreed that the representations and warranties set forth in this Section 4.1 shall survive the sale of the Mortgage Loans to the Purchaser hereunder.
Appears in 4 contracts
Samples: Mortgage Loan Purchase Agreement (First Horizon Asset Securities Inc), Mortgage Loan Purchase Agreement (First Horizon Asset Securities Inc), Mortgage Loan Purchase Agreement (First Horizon Asset Securities Inc)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Purchaser, as of the date of execution and delivery hereof, that:
(1) The Seller is duly organized as a national banking association and is validly existing under the laws of the United States of America and is duly authorized and qualified to transact any and all business contemplated by this Agreement to be conducted by the Seller in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such state, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to perform any of its other obligations under this Agreement in accordance with the terms thereof.
(2) The Seller has the requisite power and authority to sell each Mortgage Loan, and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary action on the part of the Seller the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties thereto, constitutes a legal, valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors' ’ rights generally or of creditors of depository institutions, the accounts of which are insured by the FDIC, and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
(3) The execution and delivery of this Agreement by the Seller, the sale of the Mortgage Loans by the Seller under this Agreement, the consummation of any other of the transactions contemplated by this Agreement, and the fulfillment of or compliance with the terms thereof are in the ordinary course of business of the Seller and will not (a) result in a material breach of any term or provision of the charter or by-laws of the Seller or (b) materially conflict with, result in a material breach, violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Seller is a party or by which it may be bound, or (c) constitute a material violation of any statute, order or regulation applicable to the Seller of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Seller, other than such conflicts, breaches, violations, accelerations or defaults which, individually or on a cumulative basis, would not have a material adverse effect on the Seller and its subsidiaries, taken as a whole, or the consummation of the transactions contemplated by this Agreement; and the Seller is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Seller's ’s ability to perform or meet any of its obligations under this Agreement.
(4) No litigation is pending or, to the best of the Seller's ’s knowledge, threatened against the Seller that would prohibit the execution or delivery of, or performance under, this Agreement by the Seller.
(b) The Seller hereby assigns, transfers and conveys to the Purchaser all of its rights with respect to the Mortgage Loans including, without limitation, the representations and warranties of FHHLC made pursuant to MLPA I, together with all rights of the Seller to require FHHLC to cure any breach thereof or to repurchase or substitute for any affected Mortgage Loan in accordance with MLPA I. It is understood and agreed that the obligation under MLPA I of FHHLC to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy, which may be enforced solely against FHHLC and not the Seller, respecting such breach available to the Purchaser on its behalf. The representations and warranties contained in this Agreement shall not be construed as a warranty or guaranty by the Seller as to the future payments by any Mortgagor. It is understood and agreed that the representations and warranties set forth in this Section 4.1 shall survive the sale of the Mortgage Loans to the Purchaser hereunder.
Appears in 3 contracts
Samples: Mortgage Loan Purchase Agreement (First Horizon Asset Sec Mort Pass THR Certs Ser 2006-Aa5), Mortgage Loan Purchase Agreement (First Horizon Asset Sec Mort Pass THR Certs Ser 2006-1), Mortgage Loan Purchase Agreement (First Horizon Asset Sec Mort Pass THR Certs Ser 2006-Ar1)
Representations and Warranties of the Seller. The Seller represents, warrants and covenants to the Purchaser that as of each Closing Date or as of such date specifically provided herein:
(a) The Seller hereby represents and warrants to the Purchaseris a corporation duly organized, as of the date of execution and delivery hereof, that:
(1) The Seller is duly organized as a national banking association and is validly existing and in good standing under the laws of the United States jurisdiction of America its incorporation and has all licenses necessary to carry out its business as now being conducted, and is duly authorized licensed and qualified to transact any business in and all business contemplated by this Agreement to be conducted by is in good standing under the Seller in any laws of each state in which a 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 andand no demand for such licensing or qualification has been made upon the Seller by any such state, and in any event, event the Seller is in compliance with the doing business laws of any such state, state to the extent necessary to ensure its ability to enforce the enforceability of each Mortgage Loan and to perform any the servicing of its other obligations under this Agreement the Mortgage Loans in accordance with the terms thereof.of this Agreement;
(2b) The Seller has the requisite full power and authority and legal right to hold, transfer and convey each Mortgage Loan, to sell each Mortgage Loan, Loan and to execute, deliver and perform, and to enter into and consummate the all transactions contemplated by this Agreement Agreement, the related Purchase Price and Terms Letter and the related Assignment and Conveyance and to conduct its business as presently conducted; the Seller has duly authorized by all necessary action on the part of the Seller the execution, delivery and performance of this Agreement and any agreements contemplated hereby, has duly executed and delivered this Agreement; , the related Purchase Price and Terms Letter and the related Assignment and Conveyance, and any agreements contemplated hereby, and this Agreement, assuming the due authorizationrelated Purchase Price and Terms Letter, execution the related Assignment and delivery thereof by Conveyance and each Assignment of Mortgage to the other parties theretoPurchaser and any agreements contemplated hereby, constitutes a constitute the legal, valid and binding obligation obligations of the Seller, enforceable against the Seller it in accordance with its their respective terms, except that (a) the as such enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership reorganization and other similar laws relating laws, and by equitable principles affecting the enforceability of the rights of creditors; and all requisite corporate action has been taken by the Seller to creditors' rights generally or of creditors of depository institutionsmake this Agreement, the accounts of which are insured by related Purchase Price and Terms Letter, the FDIC, related Assignment and Conveyance and all agreements contemplated hereby valid and binding upon the Seller in accordance with their respective terms;
(bc) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion None of the court before which any proceeding therefor may be brought.
(3) The execution and delivery of this Agreement by Agreement, the Sellerrelated Purchase Price and Terms Letter, the related Assignment and Conveyance, the sale of the Mortgage Loans by to the Seller under Purchaser, the consummation of the transactions contemplated hereby, or the fulfillment of or compliance with the terms and conditions of this Agreement, the consummation related Purchase Price and Terms Letter or the related Assignment and Conveyance will conflict with any of the terms, conditions or provisions of the Seller's charter or by-laws or materially conflict with or result in a material breach of any other of the terms, conditions or provisions of any legal restriction or any material agreement or instrument to which the Seller is now a party or by which it is bound, or constitute a default or result in an acceleration under any of the foregoing, or result in the material violation of any law, rule, regulation, order, judgment or decree to which the Seller or its property is subject;
(d) There is no litigation, suit, proceeding or investigation pending or, to the Seller's knowledge, threatened, or any order or decree outstanding, which is reasonably likely to have a material adverse effect on the sale of the Mortgage Loans, the execution, delivery, performance or enforceability of this Agreement, the related Purchase Price and Terms Letter or the related Assignment and Conveyance, or which is reasonably likely to have a material adverse effect on the financial condition of the Seller;
(e) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Seller of or compliance by the Seller with this Agreement, the related Purchase Price and Terms Letter and the related Assignment and Conveyance, except for consents, approvals, authorizations and orders which have been obtained;
(f) The consummation of the transactions contemplated by this Agreement, the related Purchase Price and Terms Letter and the fulfillment of or compliance with the terms thereof related Assignment and Conveyance are in the ordinary course of business of the Seller Seller, and will not (a) result in a material breach of any term or provision the transfer, assignment and conveyance of the charter or by-laws of Mortgage Notes and the Mortgages by the Seller or (b) materially conflict with, result in a material breach, violation or acceleration of, or result in a material default underpursuant to this Agreement, the terms of any other material agreement or instrument to which the Seller is a party or by which it may be bound, or (c) constitute a material violation of any statute, order or regulation applicable to the Seller of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Seller, other than such conflicts, breaches, violations, accelerations or defaults which, individually or on a cumulative basis, would not have a material adverse effect on the Seller related Purchase Price and its subsidiaries, taken as a whole, or the consummation of the transactions contemplated by this Agreement; Terms Letter and the related Assignment and Conveyance are not subject to bulk transfer or any similar statutory provisions in effect in any applicable jurisdiction;
(g) The Seller is has not used selection procedures that identified the Mortgage Loans as being less desirable or valuable than other comparable mortgage loans in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Seller's ability to perform or meet any of its obligations under this Agreement.portfolio at the Cut-off Date;
(4) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller that would prohibit the execution or delivery of, or performance under, this Agreement by the Seller.
(bh) The Seller hereby assigns, transfers and conveys to the Purchaser all of its rights with respect to the Mortgage Loans including, without limitation, the representations and warranties of FHHLC made pursuant to MLPA I, together with all rights of the Seller to require FHHLC to cure any breach thereof or to repurchase or substitute for any affected Mortgage Loan in accordance with MLPA I. It is understood and agreed that the obligation under MLPA I of FHHLC to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy, which may be enforced solely against FHHLC and not the Seller, respecting such breach available to the Purchaser on its behalf. The representations and warranties contained in this Agreement shall not be construed as a warranty or guaranty by the Seller as to the future payments by any Mortgagor. It is understood and agreed that the representations and warranties set forth in this Section 4.1 shall survive will treat the sale of the Mortgage Loans to the Purchaser hereunderas a sale for reporting and accounting purposes and, to the extent appropriate, for federal income tax purposes;
(i) The Seller is an approved seller/servicer of residential mortgage loans for Fannie Mae or Freddie Mac and HUD, with such facilities, procexxxxx axx persxxxxx xecessary for the sound servicing of such mortgage loans. The Seller 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 event has occurred which woulx xxxx the Selxxx xxxble to comply with eligibility requirements or which would require notification to either Fannie Mae or Freddie Mac;
(j) The Seller does nox xxxxeve, nor xxxx xt 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. 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;
(k) Neither this Agreement nor any information, statement, tape, diskette, form, report, or other document furnished or to be furnished pursuant to this Agreement or any Reconstitution Agreement or in connection with the transactions contemplated hereby (including any Securitization Transfer or Whole Loan Transfer) contains or will contain any untrue statement of fact or omits or will omit to state a fact necessary to make the statements contained herein or therein not misleading;
(l) The Seller acknowledges and agrees that the Servicing Fee represents reasonable compensation for performing such services and that the entire Servicing Fee shall be treated by the Seller, for accounting and tax purposes, as compensation for the servicing and administration of the Mortgage Loans pursuant to this Agreement;
(m) The Seller has delivered to the Purchaser financial statements as to its last two complete fiscal years for which financial statements are available. All such financial statements fairly present the pertinent results of operations and changes in financial position for each of such periods and the financial position at the end of each such period of the Seller and its subsidiaries and have been prepared in accordance with GAAP consistently applied throughout the periods involved, except as set forth in the notes thereto. There has been no change in the business, operations, financial condition, properties or assets of the Seller since the date of the Seller's financial statements that would have a material adverse effect on its ability to perform its obligations under this Agreement, the related Purchase Price and Terms Letter or the related Assignment and Conveyance;
(n) The Seller 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 sale of the Mortgage Loans; and
(o) The Seller is a member of MERS in good standing, and will comply in all material respects with the rules and procedures of MERS in connection with the servicing of the MERS Mortgage Loans for as long as such Mortgage Loans are registered with MERS.
Appears in 3 contracts
Samples: Seller's Purchase, Warranties and Servicing Agreement (Morgan Stanley Mortgage Loan Trust 2006-17xs), Seller's Purchase, Warranties and Servicing Agreement (Morgan Stanley Mortgage Loan Trust 2006-5ar), Seller's Purchase, Warranties and Servicing Agreement (Morgan Stanley Mortgage Loan Trust 2006-3ar)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Purchaser, Depositor that as of the date of execution and delivery hereof, hereof that:
(1i) The Seller is a Delaware corporation duly organized as a national banking association and is organized, validly existing and in good standing under the laws of the United States of America governing its creation and is duly authorized existence and qualified to transact any and all business contemplated by this Agreement to be conducted by the Seller in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such state, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to perform any of its other obligations under this Agreement in accordance with the terms thereof.
(2) The Seller has the requisite full corporate power and authority to sell each Mortgage Loanown its property, and to execute, deliver and perform, carry on its business as presently conducted and to enter into and consummate perform its obligations under this Agreement;
(ii) The execution and delivery by the Seller of this Agreement have been duly authorized by all necessary corporate action on the part of the Seller; none of the execution and delivery of this Agreement, the consummation of the transactions herein contemplated or compliance with the provisions hereof will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the federal stock charter or bylaws of the Seller;
(iii) The execution, delivery and performance by the Seller of this Agreement and the consummation of the transactions contemplated hereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) This Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Depositor, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its terms except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement and has duly authorized by all necessary action on or (B) with respect to any other matter which in the part judgment of the Seller the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties thereto, constitutes a legal, valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except that (a) the enforceability thereof may will be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating determined adversely to creditors' rights generally or of creditors of depository institutions, the accounts of which are insured by the FDIC, and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
(3) The execution and delivery of this Agreement by the Seller, the sale of the Mortgage Loans by the Seller under this Agreement, the consummation of any other of the transactions contemplated by this Agreement, and the fulfillment of or compliance with the terms thereof are in the ordinary course of business of the Seller and will not (a) result in a material breach of any term or provision of the charter or by-laws of the Seller or (b) materially conflict with, result in a material breach, violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Seller is a party or by which it may be bound, or (c) constitute a material violation of any statute, order or regulation applicable if determined adversely to the Seller of any courtmaterially and adversely affect it or its business, regulatory bodyassets, administrative agency operations or governmental body having jurisdiction over the Sellercondition, other than such conflicts, breaches, violations, accelerations financial or defaults which, individually or on a cumulative basis, would not have a material adverse effect on the Seller and its subsidiaries, taken as a wholeotherwise, or the consummation of the transactions contemplated by this Agreement; and the Seller is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Seller's adversely affect its ability to perform or meet any of its obligations under this Agreement.
(4) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller that would prohibit the execution or delivery of, or performance under, this Agreement by the Seller.
(b) The Seller hereby assigns, transfers representations and conveys to warranties of the Purchaser all of its rights Transferor with respect to the Mortgage Loans including, without limitation, contained in the representations Transfer Agreement were made as of the date of the Transfer Agreement and warranties of FHHLC made brought forward to the Closing Date pursuant to MLPA I, together with all rights of the Seller to require FHHLC to cure any breach thereof or to repurchase or substitute for any affected Mortgage Loan in accordance with MLPA I. It is understood and agreed that the obligation under MLPA I of FHHLC to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy, which may be enforced solely against FHHLC and not the Seller, respecting such breach available to the Purchaser on its behalfBring Down Letter. The representations and warranties of the Transferor with respect to the Mortgage Loans contained in the Bring Down Letter were made as of the Closing Date. To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of a representation or warranty of the Transferor under the Transfer Agreement or Bring Down Letter (whether or not such fact, condition or event would also constitute a representation or warranty of the Seller under this Agreement shall not be construed as Agreement) the only rights or remedies of the Depositor with respect to a warranty or guaranty breach by the Seller as of such representation and warranty shall be first, the right to enforce the obligations of the Transferor under such applicable representation or warranty made by it and, second, only if the Transferor is unable or unwilling to fulfill its obligation to cure or repurchase such Mortgage Loan, the Depositor shall have the right to enforce such rights against the Seller under this Agreement with respect to such representation or warranty; provided, that in the event that the Depositor has received evidence of the issuance of a Transferor Affirmation Notice, the Depositor shall only be entitled to enforce any right it has against the Transferor under the Transferor Agreement and shall not have any rights against the Seller under the Sale Agreement with respect to such representation or warranty. The representations made by the Seller pursuant to Sections 1.04(b)(vii) and 1.04(b)(viii) shall be direct obligations of the Seller. In furtherance of the above, the Seller expressly acknowledges that prior to the future payments issuance of a Transferor Affirmation Notice, it shall be obligated and liable to the Depositor for any breach of a representation or warranty made under the Transfer Agreement, but only after the Transferor evidences that it is unwilling or unable to fulfill its contractual obligations under the Transfer Agreement. With respect to a breach by the Transferor of any Mortgagorrepresentation or warranty made by the Transferor in the Transfer Agreement or Bring Down Letter, if the Transferor fulfills its obligations under the provisions of the Transfer Agreement and the Bring Down Letter by substituting for the affected Mortgage Loan a mortgage loan which is not a Replacement Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Mortgage Loan. It is understood Subject to the foregoing, the Seller represents and agreed that the representations and warranties set forth in this Section 4.1 shall survive the sale warrants upon delivery of the Mortgage Loans to the Purchaser Depositor hereunder, as to each, that as of December 28, 2005:
(i) The information set forth with respect to the Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Mortgage Loans, and the information with respect to each Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) As of the Closing Date, no Mortgage Loan is in foreclosure;
(iii) As of the Closing Date, each Mortgage Loan is a "qualified mortgage" within the meaning of Section 860G of the Code (as determined without regard to Treas.
Appears in 3 contracts
Samples: Mortgage Loan Sale and Assignment Agreement (Merrill Lynch Mortgage Investors Inc), Mortgage Loan Sale and Assignment Agreement (Ownit Mortgage Loan Trust, Series 2005-5), Mortgage Loan Sale and Assignment Agreement (Ownit Mortgage Loan Trust, Series 2006-2)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Purchaser, Depositor that as of the date of execution and delivery hereof, thatClosing Date:
(1i) The Seller is a corporation duly organized as a national banking association and is organized, validly existing and in good standing under the laws of the United States of America governing its creation and is duly authorized existence and qualified to transact any and all business contemplated by this Agreement to be conducted by the Seller in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such state, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to perform any of its other obligations under this Agreement in accordance with the terms thereof.
(2) The Seller has the requisite full corporate power and authority to sell each Mortgage Loanown its property, and to execute, deliver and performcarry on its business as presently conducted, and to enter into and consummate perform its obligations under this Agreement, the transactions contemplated by this Assignment and Assumption Agreement and has the Bxxx of Sale;
(ii) The execution and delivery by the Seller of this Agreement, the Assignment and Assumption Agreement and the Bxxx of Sale have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and delivery of this Agreement, the Assignment and Assumption Agreement or the Bxxx of Sale, nor the consummation of the transactions herein or therein contemplated, nor compliance with the provisions hereof or thereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) The execution, delivery and performance by the Seller of this Agreement; , the Assignment and Assumption Agreement and the Bxxx of Sale and the consummation of the transactions contemplated hereby and thereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each of this Agreement, the Assignment and Assumption Agreement and the Bxxx of Sale has been duly executed and delivered by the Seller and, assuming the due authorization, execution and delivery thereof by the other parties theretoBank, in the case of the Assignment and Assumption Agreement and the Bxxx of Sale, and the Depositor, in the case of this Agreement, constitutes a legal, valid and binding obligation of the Seller, Seller enforceable against the Seller it in accordance with its respective terms, except that (a) the as such enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership subject to (A) applicable bankruptcy and insolvency laws and other similar laws relating to creditors' affecting the enforcement of the rights generally or of creditors of depository institutions, the accounts of which are insured by the FDIC, generally and (bB) the remedy general principles of specific performance and injunctive and other forms equity regardless of equitable relief may be subject to equitable defenses and whether such enforcement is considered in a proceeding in equity or at law; and
(v) There are no actions, suits or proceedings pending or, to the discretion knowledge of the court before which any proceeding therefor may be brought.
(3) The execution and delivery of this Agreement by the Seller, threatened or likely to be asserted against or affecting the sale of the Mortgage Loans Seller, before or by the Seller under this Agreementany court, the consummation of administrative agency, arbitrator or governmental body (A) with respect to any other of the transactions contemplated by this Agreement, the Assignment and Assumption Agreement or the fulfillment Bxxx of Sale or compliance (B) with the terms thereof are respect to any other matter which in the ordinary course judgment of business of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement, the Assignment and Assumption Agreement or the Bxxx of Sale.
(b) The representations and warranties of each Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than a breach by the Seller of the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) result in a material breach of any term or provision of with the charter or by-laws of applicable Purchase Price for the Seller affected Mortgage Loan or (b) materially conflict withwithin the two-year period following the Closing Date, result with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Date, as to each, that:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in a all material breach, violation respects at the date or acceleration of, or result dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in a material default under, payment) in complying with the terms of any other material agreement or instrument to which Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be insured by a generally acceptable insurer against loss by fire, hazards of extended coverage and such other hazards as are customary in the area where the related Mortgaged Property is a party or by which it may be bound, or (c) constitute a material violation of any statute, order or regulation applicable located pursuant to insurance policies conforming to the Seller requirements of any courtthe guidelines of FNMA or FHLMC. If upon origination of a Transferred Mortgage Loan, regulatory bodythe Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related Mortgagor thereunder to maintain the hazard insurance policy at the Mortgagor’s cost and expense, administrative agency or governmental body having jurisdiction over the Seller, other than such conflicts, breaches, violations, accelerations or defaults which, individually or on a cumulative basis, would not have a material adverse effect and on the Seller Mortgagor’s failure to do so, authorizes the holder of the Mortgage to obtain and its subsidiariesmaintain such insurance at such Mortgagor’s cost and expense, taken as and to seek reimbursement therefor from the Mortgagor. Where required by state law or regulation, each Mortgagor has been given an opportunity to choose the carrier of the required hazard insurance, provided the policy is not a whole“master” or “blanket” hazard insurance policy covering the common facilities of a planned unit development. The hazard insurance policy is the valid and binding obligation of the insurer, or is in full force and effect, and will be in full force and effect and inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement; ;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable Transferred Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller is not had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in breach or violation paragraph (v) above, of any material indenture encumbrance, equity, participation interest, lien, pledge, charge, claim or security interest, and has full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign each Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Title Insurance Policy or other material agreement generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or instrumentomission, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially anything that would impair the Seller's ability to perform or meet any coverage of its obligations under this Agreement.such mortgagee Title Insurance Policy;
(4viii) No litigation is pending or, to To the best of the Seller's ’s knowledge, no foreclosure action is being threatened against the Seller that would prohibit the execution or delivery of, or performance under, this Agreement by the Sellercommenced with respect to any Transferred Mortgage Loan.
(bix) The Seller hereby assignsThere is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, transfers in the case of any Cooperative Loan, the related cooperative unit) and conveys each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the Purchaser value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(x) There are no mechanics’ or similar liens or claims which have been filed for work, labor or material (and no rights are outstanding that under the law could give rise to such liens) affecting the related Mortgaged Property which are or may be liens prior to, or equal or coordinate with, the lien of the related Mortgage;
(xi) Each Transferred Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, insurance company or similar institution that is supervised and examined by a Federal or State authority, or by a mortgagee approved by the Secretary of Housing and Urban Development pursuant to Sections 203 and 211 of the National Housing Act;
(xii) Each Transferred Mortgage Loan at the time it was made complied in all material respects with applicable local, state, and federal laws including, but not limited to, all applicable predatory and abusive lending laws;
(xiii) As of its rights the Closing Date, each Transferred Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 (determined without regard to Treas. Reg. §1.860G-2(f) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period);
(xiv) As of the Closing Date, other than with respect to Retained Interest, no Transferred Mortgage Loan provides for interest other than at either (i) a single fixed rate in effect throughout the term of the Transferred Mortgage Loans includingLoan or (ii) a single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term of the Transferred Mortgage Loan;
(xv) As of the Closing Date, without limitationno Transferred Mortgage Loan is the subject of pending or final foreclosure proceedings;
(xvi) As of the Closing Date, based on delinquencies in payment on the Transferred Mortgage Loans, the representations and warranties of FHHLC made pursuant Seller would not initiate foreclosure proceedings with respect to MLPA I, together with all rights of the Seller to require FHHLC to cure any breach thereof or to repurchase or substitute for any affected Transferred Mortgage Loan in accordance with MLPA I. It is understood and agreed that prior to the obligation under MLPA I of FHHLC to cure, repurchase or replace any next scheduled payment date on such Transferred Mortgage Loan;
(xvii) No Transferred Mortgage Loan as to which is a breach has occurred and “high-cost,” “high-cost home,” “covered,” “high-risk home” or “predatory” loan under any applicable federal, state or local predatory or abusive lending law (or a similarly classified loan using different terminology under a law imposing heightened regulatory scrutiny or additional legal liability for residential mortgage loans having high interest rates, points and/or fees); no Transferred Mortgage Loan originated on or after November 27, 2003 is continuing shall constitute the sole remedy, which may be enforced solely against FHHLC and not the Seller, respecting such breach available a “High-Cost Home Loan” subject to the Purchaser on its behalf. The representations and warranties contained in this Agreement shall not be construed as New Jersey Home Ownership Security Act of 2003 (N.J.S.A. 46:10B-22 et seq.); no Transferred Mortgage Loan is a warranty or guaranty by the Seller as “High-Cost Home Loan” subject to the future payments by any Mortgagor. It is understood and agreed that the representations and warranties set forth in this Section 4.1 shall survive the sale of the Mortgage Loans to the Purchaser hereunder.New Mexico Home Loan Protection Act (N.M.
Appears in 3 contracts
Samples: Mortgage Loan Sale and Assignment Agreement (Structured Adjustable Rate Mortgage Loan Trust Series 2007-9), Mortgage Loan Sale and Assignment Agreement (Structured Adjustable Rate Mortgage Loan Trust Series 2007-8), Mortgage Loan Sale and Assignment Agreement (Structured Adjustable Rate Mortgage Loan Trust Series 2007-10)
Representations and Warranties of the Seller. The Seller represents and warrants as follows:
(a) The Seller hereby represents and warrants to the Purchaseris a corporation duly incorporated, as of the date of execution and delivery hereof, that:
(1) The Seller is duly organized as a national banking association and is validly existing and in good standing under the laws of the United States State of America Michigan and is duly authorized and qualified to transact any do business, and all is in good standing, in every jurisdiction where the nature of its business contemplated by this Agreement requires it to be conducted so qualified.
(b) The execution, delivery and performance by the Seller in any state in which a Mortgaged Property is located or is otherwise not required under applicable law of this Agreement, the Certificate and all other instruments and documents to effect such qualification and, in any event, is in compliance with be delivered hereunder (including the doing business laws use by the Seller of any such state, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to perform any proceeds of its other obligations under this Agreement in accordance with the terms thereof.
(2) The Seller has the requisite power and authority to sell each Mortgage LoanPurchases), and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement hereby and has thereby, are within the Seller's corporate powers, have been duly authorized by all necessary action corporate action, do not contravene (i) the Seller's charter or by-laws or (ii) law or any contractual restriction binding on the part of or affecting the Seller and do not result in or require the creation of any lien, security interest or other charge or encumbrance upon or with respect to any of its properties; and no transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Seller of this Agreement; , the Certificate or any other document or instrument to be delivered hereunder except for the filing of the UCC Financing Statements referred to in Article III, all of which, at the time required in Article III, shall have been duly made and this Agreementshall be in full force and effect.
(d) This Agreement constitutes, assuming and the due authorizationCertificate when delivered hereunder shall constitute, execution and delivery thereof by the other parties thereto, constitutes a legal, valid and binding obligation of the Seller, Seller enforceable against the Seller in accordance with its their respective terms, except that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally or of creditors of depository institutions, the accounts of which are insured by the FDIC, and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
(3e) The execution and delivery of this Agreement by the Seller, the sale of the Mortgage Loans by the Seller under this Agreement, the consummation of any other of the transactions contemplated by this Agreement, and the fulfillment of or compliance with the terms thereof are in the ordinary course of business consolidated balance sheet of the Seller and will not (a) result in a material breach its consolidated subsidiaries as at December 31, 1999, and the related consolidated statements of any term or provision income and retained earnings of the charter Seller and its consolidated subsidiaries for the fiscal year then ended, certified by Deloitte & Touche LLP, independent public accountants, a copy of which has been furnished to the Agent, fairly presents the consolidated financial condition of the Seller and its consolidated subsidiaries as at such date and the consolidated results of the operations of the Seller and its consolidated subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles, and since December 31, 1999, there has been no material adverse change in the business, condition (financial or by-laws otherwise), results of operations or properties of the Seller or of the Seller and its consolidated subsidiaries.
(bf) materially conflict withThere are no actions, result in a material breach, violation suits or acceleration ofproceedings pending, or result in a material default underto the knowledge of the Seller threatened, against or affecting the terms Seller or any subsidiary, or the property of the Seller or of any other material agreement subsidiary, in any court, or instrument to before any arbitrator of any kind, or before or by any governmental body, which may materially adversely affect the financial condition of the Seller is or the Seller and its consolidated subsidiaries taken as a party or by which it may be bound, or whole (c) constitute a material violation of any statute, order or regulation applicable except to the extent specifically described in the Seller's Consolidated Financial Statements for the year ended December 31, 1999) or which may materially adversely affect the ability of the Seller to perform its obligations under this Agreement or the Certificate; neither the Seller nor any subsidiary is in default with respect to any order of any court, regulatory body, administrative agency arbitrator or governmental body having jurisdiction over except for defaults with respect to orders of governmental agencies which defaults are not material to the Sellerbusiness or operations of the Seller or any subsidiary.
(g) No proceeds of any Purchase will be used by the Seller to acquire any security in any transaction which is subject to Sections 13 and 14 of the Securities Exchange Act of 1934.
(h) Each Pool Receivable is (i) together with the Contract related thereto owned by the Seller free and clear of any Adverse Claim except as provided for herein and (ii) an Eligible Receivable; upon each Purchase or reinvestment, other than the Owner making such conflictsPurchase or reinvestment will acquire a valid and perfected first priority undivided percentage ownership interest, breachessubject only to the lien, violationsif applicable, accelerations or defaults whichof the Mortgage and Deed of Trust, individually or on a cumulative basisdated as of October 1, would not have a material adverse effect on 1924, as amended, between the Seller and its subsidiariesFirst Chicago Trust Company of New York, taken as a wholesuccessor Trustee (the "Mortgage"), to the extent of the pertinent Eligible Asset in each Pool Receivable then existing or thereafter arising and in the Related Security and Collections with respect thereto free and clear of any Adverse Claim except as provided hereunder; and no effective financing statement or other instrument similar in effect covering any Pool Receivable or the consummation Related Security or Collections with respect thereto is on file in any recording office except for the financing statement, if applicable, filed with respect to the Mortgage, and except such as may be filed in favor of the transactions contemplated by this Agreement; and the Seller is not CNAI, as Agent, in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Seller's ability to perform or meet any of its obligations under accordance with this Agreement.
(4i) No litigation is pending orEach Investor Report (if prepared by the Seller, or to the best extent that information contained therein is supplied by the Seller), information, exhibit, financial statement, document, book, record or report (including descriptions of the Seller's knowledgecredit and collection policies, threatened against billing systems and reporting systems) furnished at any time by the Seller that would prohibit to the execution Agent or delivery of, or performance under, any Owner in connection with this Agreement by is accurate in all material respects as of its date or (except as otherwise disclosed to the SellerAgent or such Owner, as the case may be, at such time) as of the date so furnished, and no such document contains any material misstatement of fact or omits to state a material fact or any fact necessary to make the statements contained therein not materially misleading.
(bj) The chief place of business and chief executive office of the Seller hereby assignsare located at the address of the Seller referred to in Section 11.02 hereof and the offices where the Seller keeps all its books, transfers records and conveys documents evidencing Pool Receivables or the related Contracts are located at the addresses specified in Schedule I hereto (or at such other locations, notified to the Purchaser Agent in accordance with Section 5.01(f), in jurisdictions where all action required by Section 6.05 has been taken and completed).
(k) The names and addresses of its rights with respect to all the Mortgage Loans including, without limitation, the representations and warranties of FHHLC made pursuant to MLPA ISpecial Account Banks, together with all rights the account numbers of the Special Accounts of the Seller at such Special Account Banks, are specified in Schedule II hereto (or at such other Special Account Banks and/or with such other Special Accounts as have been notified to require FHHLC to cure any breach thereof or to repurchase or substitute for any affected Mortgage Loan the Agent in accordance with MLPA I. It is understood and agreed that the obligation under MLPA I of FHHLC to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy, which may be enforced solely against FHHLC and not the Seller, respecting such breach available to the Purchaser on its behalf. The representations and warranties contained in this Agreement shall not be construed as a warranty or guaranty by Section 5.03(d)).
(l) Neither the Seller as to the future payments by nor any Mortgagor. It is understood and agreed that the representations and warranties set forth in this Section 4.1 shall survive the sale Affiliate of the Mortgage Loans to Seller has any direct or indirect ownership or other financial interest in any Obligor.
(m) Each purchase of an Eligible Asset hereunder, and each reinvestment of Collections in Pool Receivables made hereunder, will constitute (i) a "current transaction" within the Purchaser hereundermeaning of Section 3(a)(3) of the Securities Act of 1933, as amended, and (ii) a purchase or other acquisition of notes, drafts, acceptances, open accounts receivable or other obligations representing part or all of the sales price of merchandise, insurance or services within the meaning of Section 3(c)(5) of the Investment Company Act of 1940, as amended.
Appears in 3 contracts
Samples: Trade Receivables Purchase and Sale Agreement (Detroit Edison Securitization Funding LLC), Trade Receivables Purchase and Sale Agreement (Detroit Edison Securitization Funding LLC), Trade Receivables Purchase and Sale Agreement (Detroit Edison Co)
Representations and Warranties of the Seller. The Seller represents, warrants and covenants to the Purchaser that as of each Closing Date or as of such date specifically provided herein:
(a) The Seller hereby represents and warrants to the Purchaseris a corporation duly organized, as of the date of execution and delivery hereof, that:
(1) The Seller is duly organized as a national banking association and is validly existing and in good standing under the laws of the United States jurisdiction of America its incorporation and has all licenses necessary to carry out its business as now being conducted, and is duly authorized licensed and qualified to transact any business in and all business contemplated by this Agreement to be conducted by is in good standing under the Seller in any laws of each state in which a 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 andand no demand for such licensing or qualification has been made upon the Seller by any such state, and in any event, event the Seller is in compliance with the doing business laws of any such state, state to the extent necessary to ensure its ability to enforce the enforceability of each Mortgage Loan and to perform any the servicing of its other obligations under this Agreement the Mortgage Loans in accordance with the terms thereof.of this Agreement;
(2b) The Seller has the requisite full power and authority and legal right to hold, transfer and convey each Mortgage Loan, to sell each Mortgage Loan, Loan and to execute, deliver and perform, and to enter into and consummate the all transactions contemplated by this Agreement Agreement, the related Purchase Price and Terms Letter and the related Assignment and Conveyance and to conduct its business as presently conducted; the Seller has duly authorized by all necessary action on the part of the Seller the execution, delivery and performance of this Agreement and any agreements contemplated hereby, has duly executed and delivered this Agreement; , the related Purchase Price and Terms Letter and the related Assignment and Conveyance, and any agreements contemplated hereby, and this Agreement, assuming the due authorizationrelated Purchase Price and Terms Letter, execution the related Assignment and delivery thereof by Conveyance and each Assignment of Mortgage to the other parties theretoPurchaser and any agreements contemplated hereby, constitutes a constitute the legal, valid and binding obligation obligations of the Seller, enforceable against the Seller it in accordance with its their respective terms, except that (a) the as such enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership reorganization and other similar laws relating laws, and by equitable principles affecting the enforceability of the rights of creditors; and all requisite corporate action has been taken by the Seller to creditors' rights generally or of creditors of depository institutionsmake this Agreement, the accounts of which are insured by related Purchase Price and Terms Letter, the FDIC, related Assignment and Conveyance and all agreements contemplated hereby valid and binding upon the Seller in accordance with their respective terms;
(bc) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion None of the court before which any proceeding therefor may be brought.
(3) The execution and delivery of this Agreement by Agreement, the Sellerrelated Purchase Price and Terms Letter, the related Assignment and Conveyance, the sale of the Mortgage Loans by to the Seller under Purchaser, the consummation of the transactions contemplated hereby, or the fulfillment of or compliance with the terms and conditions of this Agreement, the consummation related Purchase Price and Terms Letter or the related Assignment and Conveyance will conflict with any of the terms, conditions or provisions of the Seller’s charter or by-laws or materially conflict with or result in a material breach of any other of the terms, conditions or provisions of any legal restriction or any material agreement or instrument to which the Seller is now a party or by which it is bound, or constitute a default or result in an acceleration under any of the foregoing, or result in the material violation of any law, rule, regulation, order, judgment or decree to which the Seller or its property is subject;
(d) There is no litigation, suit, proceeding or investigation pending or, to the Seller’s knowledge, threatened, or any order or decree outstanding, which is reasonably likely to have a material adverse effect on the sale of the Mortgage Loans, the execution, delivery, performance or enforceability of this Agreement, the related Purchase Price and Terms Letter or the related Assignment and Conveyance, or which is reasonably likely to have a material adverse effect on the financial condition of the Seller;
(e) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Seller of or compliance by the Seller with this Agreement, the related Purchase Price and Terms Letter and the related Assignment and Conveyance, except for consents, approvals, authorizations and orders which have been obtained;
(f) The consummation of the transactions contemplated by this Agreement, the related Purchase Price and Terms Letter and the fulfillment of or compliance with the terms thereof related Assignment and Conveyance are in the ordinary course of business of the Seller Seller, and will not (a) result in a material breach of any term or provision the transfer, assignment and conveyance of the charter or by-laws of Mortgage Notes and the Mortgages by the Seller or (b) materially conflict with, result in a material breach, violation or acceleration of, or result in a material default underpursuant to this Agreement, the terms of any other material agreement or instrument to which the Seller is a party or by which it may be bound, or (c) constitute a material violation of any statute, order or regulation applicable to the Seller of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Seller, other than such conflicts, breaches, violations, accelerations or defaults which, individually or on a cumulative basis, would not have a material adverse effect on the Seller related Purchase Price and its subsidiaries, taken as a whole, or the consummation of the transactions contemplated by this Agreement; Terms Letter and the Seller is related Assignment and Conveyance are not subject to bulk transfer or any similar statutory provisions in breach or violation of effect in any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Seller's ability to perform or meet any of its obligations under this Agreement.applicable jurisdiction;
(4) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller that would prohibit the execution or delivery of, or performance under, this Agreement by the Seller.
(bg) The Seller hereby assigns, transfers and conveys to the Purchaser all of its rights with respect to has not used selection procedures that identified the Mortgage Loans including, without limitation, the representations and warranties of FHHLC made pursuant to MLPA I, together with all rights of the Seller to require FHHLC to cure any breach thereof as being less desirable or to repurchase or substitute for any affected Mortgage Loan valuable than other comparable mortgage loans in accordance with MLPA I. It is understood and agreed that the obligation under MLPA I of FHHLC to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy, which may be enforced solely against FHHLC and not the Seller, respecting such breach available to ’s portfolio at the Purchaser on its behalf. Cut-off Date;
(h) The representations and warranties contained in this Agreement shall not be construed as a warranty or guaranty by the Seller as to the future payments by any Mortgagor. It is understood and agreed that the representations and warranties set forth in this Section 4.1 shall survive will treat the sale of the Mortgage Loans to the Purchaser hereunderas a sale for reporting and accounting purposes and, to the extent appropriate, for federal income tax purposes;
(i) The Seller 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 Seller 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 Seller unable to comply with eligibility requirements or which would require notification to either Xxxxxx Mae or Xxxxxxx Mac;
(j) The Seller 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. 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;
(k) Neither this Agreement nor any information, statement, tape, diskette, form, report, or other document furnished or to be furnished pursuant to this Agreement or any Reconstitution Agreement or in connection with the transactions contemplated hereby (including any Securitization Transfer or Whole Loan Transfer) contains or will contain any untrue statement of fact or omits or will omit to state a fact necessary to make the statements contained herein or therein not misleading;
(l) The Seller acknowledges and agrees that the Interim Servicing Fee represents reasonable compensation for performing such services and that the entire Interim Servicing Fee shall be treated by the Seller, for accounting and tax purposes, as compensation for the interim servicing and administration of the Mortgage Loans pursuant to this Agreement;
(m) The Seller has delivered to the Purchaser financial statements as to its last two complete fiscal years for which financial statements are available. All such financial statements fairly present the pertinent results of operations and changes in financial position for each of such periods and the financial position at the end of each such period of the Seller and its subsidiaries and have been prepared in accordance with GAAP consistently applied throughout the periods involved, except as set forth in the notes thereto. There has been no change in the business, operations, financial condition, properties or assets of the Seller since the date of the Seller’s financial statements that would have a material adverse effect on its ability to perform its obligations under this Agreement, the related Purchase Price and Terms Letter or the related Assignment and Conveyance;
(n) The Seller 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 sale of the Mortgage Loans; and
(o) The Seller is a member of MERS in good standing, and will comply in all material respects with the rules and procedures of MERS in connection with the servicing of the MERS Mortgage Loans for as long as such Mortgage Loans are registered with MERS.
Appears in 3 contracts
Samples: Seller’s Purchase, Warranties and Interim Servicing Agreement (Morgan Stanley Mortgage Loan Trust 2007-5ax), Seller’s Purchase, Warranties and Interim Servicing Agreement (Morgan Stanley Mortgage Loan Trust 2007-11ar), Seller’s Purchase, Warranties and Interim Servicing Agreement (Morgan Stanley Mortgage Loan Trust 2007-11ar)
Representations and Warranties of the Seller. The Seller represents, warrants and covenants to the Purchaser that as of each Closing Date or as of such date specifically provided herein:
(a) The Seller hereby represents and warrants to the Purchaseris a corporation duly organized, as of the date of execution and delivery hereof, that:
(1) The Seller is duly organized as a national banking association and is validly existing and in good standing under the laws of the United States State of America New Jersey and has all licenses necessary to carry out its business as now being conducted, and is duly authorized licensed and qualified to transact any business in and all business contemplated by this Agreement to be conducted by is in good standing under the Seller in any laws of each state in which a 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 andand no demand for such licensing or qualification has been made upon such Seller by any such state, and in any event, event such Seller is in compliance with the doing business laws of any such state, state to the extent necessary to ensure its ability to enforce the enforceability of each Mortgage Loan and to perform any the servicing of its other obligations under this Agreement the Mortgage Loans in accordance with the terms thereof.of this Agreement;
(2b) The Seller has the requisite full power and authority and legal right to hold, transfer and convey each Mortgage Loan, to sell each Mortgage Loan, Loan included in the related Mortgage Loan Package and to execute, deliver and perform, and to enter into and consummate the all transactions contemplated by this Agreement and to conduct its business as presently conducted, has duly authorized by all necessary action on the part of the Seller the execution, delivery and performance of this Agreement; Agreement and any agreements contemplated hereby, has duly executed and delivered this Agreement, assuming and any agreements contemplated hereby, and this Agreement and each Assignment of Mortgage to the due authorization, execution Purchaser and delivery thereof by the other parties theretoany agreements contemplated hereby, constitutes a legal, valid and binding obligation of the Seller, enforceable against the Seller it in accordance with its terms, except that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally or of creditors of depository institutions, the accounts of which are insured all requisite corporate action has been taken by the FDIC, Seller to make this Agreement and all agreements contemplated hereby valid and binding upon the Seller in accordance with their terms;
(bc) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion None of the court before which any proceeding therefor may be brought.
(3) The execution and delivery of this Agreement Agreement, the origination of the Mortgage Loans by the Seller, the sale of the Mortgage Loans by to the Seller under this AgreementPurchaser, the consummation of any other of the transactions contemplated by this Agreementhereby, and or the fulfillment of or compliance with the terms thereof are in the ordinary course and conditions of business this Agreement will conflict with any of the Seller and will not (a) terms, conditions or provisions of the Seller's charter or by-laws or materially conflict with or result in a material breach of any term or provision of the charter terms, conditions or by-laws of the Seller or (b) materially conflict with, result in a material breach, violation or acceleration of, or result in a material default under, the terms provisions of any other material legal restriction or any agreement or instrument to which the Seller is now a party or by which it may be is bound, or (c) constitute a default or result in an acceleration under any of the foregoing, or result in the material violation of any statutelaw, rule, regulation, order, judgment or decree to which the Seller or its property is subject or impair the ability of the Purchaser to realize on the Mortgage Loans or impair the value of the Mortgage Loans;
(d) Each Mortgage Note, each Mortgage, each Assignment of Mortgage and any other documents required pursuant to this Agreement to be delivered to the Purchaser or its designee, or its assignee for each Mortgage Loan, have been, on or before the related Closing Date, delivered to the Purchaser or its designee, or its assignee;
(e) There is no litigation, suit, proceeding or investigation pending or threatened, or any order or regulation applicable decree outstanding, with respect to the Seller of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Seller, other than such conflicts, breaches, violations, accelerations or defaults which, individually either in one instance or on a cumulative basisin the aggregate, would not is reasonably likely to have a material adverse effect on the sale or servicing of the Mortgage Loans, the execution, delivery, performance or enforceability of this Agreement, or which is reasonably likely to have a material adverse effect on the financial condition of the Seller.
(f) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Seller of or compliance by the Seller with this Agreement, or the sale of the Mortgage Loans and its subsidiaries, taken as a whole, delivery of the Mortgage Files to the Purchaser or the consummation of the transactions contemplated by this Agreement; , except for consents, approvals, authorizations and orders which have been obtained;
(g) The consummation of the transactions contemplated by this Agreement is in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to bulk transfer or any similar statutory provisions in effect in any applicable jurisdiction;
(h) The origination, collection and servicing practices used by the Seller, any Originator and Prior Servicers, with respect to each Mortgage Note and Mortgage have been legal and in accordance with applicable laws and regulations, and in all material respects proper and prudent in the mortgage origination and servicing business. With respect to escrow deposits and payments that the Seller is not entitled to collect, all such payments are in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Seller's ability to perform or meet any of its obligations under this Agreement.
(4) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller that would prohibit the execution or delivery possession of, or performance underunder the control of, this Agreement by the Seller., and there exist no deficiencies in connection therewith for which customary arrangements for repayment thereof have not been made. All escrow payments have been collected in full compliance with state and federal law and the provisions of the related Mortgage Note and Mortgage. 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;
(bi) The Seller hereby assigns, transfers and conveys used no adverse selection procedures in selecting from among the outstanding first lien residential mortgage loans owned by it which were available for inclusion in the sale to the Purchaser all of its rights with respect to the Mortgage Loans including, without limitation, the representations and warranties of FHHLC made pursuant to MLPA I, together with all rights of the Purchaser;
(j) The Seller to require FHHLC to cure any breach thereof or to repurchase or substitute for any affected Mortgage Loan in accordance with MLPA I. It is understood and agreed that the obligation under MLPA I of FHHLC to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy, which may be enforced solely against FHHLC and not the Seller, respecting such breach available to the Purchaser on its behalf. The representations and warranties contained in this Agreement shall not be construed as a warranty or guaranty by the Seller as to the future payments by any Mortgagor. It is understood and agreed that the representations and warranties set forth in this Section 4.1 shall survive will treat the sale of the Mortgage Loans to the Purchaser hereunderas a sale for reporting and accounting purposes and, to the extent appropriate, for federal income tax purposes;
(k) Seller is an approved seller/servicer of residential mortgage loans for Xxxxxx Xxx/FHLMC and HUD, with such facilities, procedures and personnel necessary for the sound servicing of such mortgage loans. The Seller is duly qualified, licensed, registered and otherwise authorized under all applicable federal, state and local laws, and regulations, if applicable, meets the minimum capital requirements set forth by the OCC, and is in good standing to sell mortgage loans to and service mortgage loans for Xxxxxx Mae/FHLMC and no event has occurred which would make Seller unable to comply with eligibility requirements or which would require notification to either Xxxxxx Xxx or FHLMC;
(l) The Seller 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. 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;
(m) No statement, tape, diskette, form, report or other document prepared by, or on behalf of, Seller pursuant to this Agreement or in connection with the transactions contemplated hereby, contains or will contain any statement that is or will be inaccurate or misleading in any material respect;
(n) The Seller acknowledges and agrees that the Servicing Fee represents reasonable compensation for performing such services and that the entire Servicing Fee shall be treated by the Seller, for accounting and tax purposes, as compensation for the servicing and administration of the Mortgage Loans pursuant to this Agreement; in the opinion of Seller, the consideration received by Seller upon the sale of the Mortgage Loans to Purchaser under this Agreement constitutes fair consideration for the Mortgage Loans under current market conditions.
(o) If requested by the Purchaser, the Seller has delivered to the Purchaser financial statements as to its last two complete fiscal years. All such financial statements fairly present the pertinent results of operations and changes in financial position for each of such periods and the financial position at the end of each such period of the Seller and its subsidiaries and have been prepared in accordance with GAAP consistently applied throughout the periods involved, except as set forth in the notes thereto. There has been no change in the business, operations, financial condition, properties or assets of the Seller since the date of the Seller’s financial statements that would have a material adverse effect on its ability to perform its obligations under this Agreement;
(p) The Seller 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 sale of the Mortgage Loans; and
(q) The Seller is a member of MERS in good standing, and will comply in all material respects with the rules and procedures of MERS in connection with the servicing of the MERS Mortgage Loans for as long as such Mortgage Loans are registered with MERS.
Appears in 3 contracts
Samples: Mortgage Loan Purchase Agreement (J.P. Morgan Alternative Loan Trust 2006-S1), Mortgage Loan Purchase Agreement (J.P. Morgan Mortgage Trust 2006-S1), Mortgage Loan Purchase Agreement (J.P. Morgan Mortgage Trust 2006-S4)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Purchaser, as of the date of execution and delivery hereof, that:
(1) The Seller is duly organized as a national banking association and is validly existing and in good standing under the laws of the United States of America and is duly authorized and qualified to transact any and all business contemplated by this Agreement to be conducted by the Seller in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such state, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to perform any of its other obligations under this Agreement in accordance with the terms thereof.
(2) The Seller has the requisite power and authority to sell each Mortgage Loan, and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary action on the part of the Seller the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties thereto, constitutes a legal, valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors' ’ rights generally or of creditors of depository institutions, the accounts of which are insured by the FDIC, and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
(3) The execution and delivery of this Agreement by the Seller, the sale of the Mortgage Loans by the Seller under this Agreement, the consummation of any other of the transactions contemplated by this Agreement, and the fulfillment of or compliance with the terms thereof are in the ordinary course of business of the Seller and will not (a) result in a material breach of any term or provision of the charter or by-laws of the Seller or (b) materially conflict with, result in a material breach, violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Seller is a party or by which it may be bound, or (c) constitute a material violation of any statute, order or regulation applicable to the Seller of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Seller, other than such conflicts, breaches, violations, accelerations or defaults which, individually or on a cumulative basis, would not have a material adverse effect on the Seller and its subsidiaries, taken as a whole, or the consummation of the transactions contemplated by this Agreement; and the Seller is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Seller's ’s ability to perform or meet any of its obligations under this Agreement.
(4) No litigation is pending or, to the best of the Seller's ’s knowledge, threatened against the Seller that would prohibit the execution or delivery of, or performance under, this Agreement by the Seller.
(5) The Seller is a member of MERS in good standing, and will comply in all material respects with the rules and procedures of MERS in connection with the servicing of the MERS Mortgage Loans for as long as such Mortgage Loans are registered with MERS.
(b) The Seller hereby assigns, transfers makes the representations and conveys warranties set forth in Schedule B hereto to the Purchaser, as of the Closing Date, or if so specified therein, as of the Cut-off Date.
(c) Upon discovery by either of the parties hereto of a breach of a representation or warranty made pursuant to Schedule B hereto that materially and adversely affects the interests of the Purchaser all in any Mortgage Loan, the party discovering such breach shall give prompt notice thereof to the other party. The Seller hereby covenants that within 90 days of the earlier of its rights discovery or its receipt of written notice from the Purchaser of a breach of any representation or warranty made pursuant to Schedule B hereto which materially and adversely affects the interests of the Purchaser in any Mortgage Loan, it shall cure such breach in all material respects, and if such breach is not so cured, shall, (i) if such 90-day period expires prior to the second anniversary of the Closing Date, remove such Mortgage Loan (a “Deleted Mortgage Loan”) from the pool of mortgages listed on Schedule B hereto and substitute in its place a Substitute Mortgage Loan, in the manner and subject to the conditions set forth in this Section; or (ii) repurchase the affected Mortgage Loan or Mortgage Loans from the Purchaser at the Mortgage Loan Purchase Price in the manner set forth below. With respect to the representations and warranties described in this Section which are made to the best of the Seller’s knowledge, if it is discovered by either the Seller or the Purchaser that the substance of such representation and warranty is inaccurate and such inaccuracy materially and adversely affects the value of the related Mortgage Loan or the interests of the Purchaser therein, notwithstanding the Seller’s lack of knowledge with respect to the substance of such representation or warranty, such inaccuracy shall be deemed a breach of the applicable representation or warranty. With respect to any Substitute Mortgage Loan or Loans, the Seller shall deliver to the Trustee or to the Custodian on its behalf the Mortgage Note, the Mortgage, the related assignment of the Mortgage, and such other documents and agreements as are required by Section 3.1, with the Mortgage Note endorsed and the Mortgage assigned as required by Section 3.1. No substitution is permitted to be made in any calendar month after the Determination Date for such month. Scheduled Payments due with respect to Substitute Mortgage Loans includingin the month of substitution will be retained by the Seller. Upon such substitution, without limitationthe Substitute Mortgage Loan or Loans shall be subject to the terms of this Agreement in all respects, and the Seller shall be deemed to have made with respect to such Substitute Mortgage Loan or Loans, as of the date of substitution, the representations and warranties of FHHLC made pursuant to MLPA I, together Schedule B hereto with all rights of the Seller respect to require FHHLC to cure any breach thereof or to repurchase or substitute for any affected such Mortgage Loan in accordance with MLPA I. Loan. It is understood and agreed that the obligation under MLPA I this Agreement of FHHLC the Seller to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy, which may be enforced solely remedy against FHHLC and not the Seller, Seller respecting such breach available to the Purchaser on its behalf. The representations and warranties contained in this Agreement shall not be construed as a warranty or guaranty by the Seller as to the future payments by any Mortgagor. It is understood and agreed that the representations and warranties set forth in this Section 4.1 shall survive the sale of the Mortgage Loans to the Purchaser hereunder.
Appears in 3 contracts
Samples: Mortgage Loan Purchase Agreement (First Horizon Asset Sec Mort Pass THR Certs Ser 2007-5), Mortgage Loan Purchase Agreement (First Horizon Asset Sec Mort Pass THR Certs Ser 2007-Fa5), Mortgage Loan Purchase Agreement (First Horizon Asset Sec Mort Pass THR Certs Ser 2007-Aa3)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Purchaser, T&D that as of the date of execution and delivery hereof, thatEffective Date:
(1a) The Seller is a __________, duly organized as a national banking association and is organized, validly existing and in good standing under the laws of the United States State of America ________ and is duly authorized and qualified to transact any and do business in all business contemplated by this Agreement to be conducted by the Seller in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect jurisdictions where such qualification and, in any event, is in compliance with the doing business laws of any required or where such state, to the extent qualification is necessary to ensure its ability to enforce each Mortgage Loan and for it to perform any of its other obligations under this Agreement in accordance with the terms thereofhereunder.
(2b) The Seller has the requisite full power and authority to sell each Mortgage Loancarry on its business as now being conducted, and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary action on the part of the Seller the perform its obligations hereunder. The execution, delivery and performance of this Agreement; Agreement have been duly authorized by all necessary corporate or other organizational action and do not and will not contravene its organizational documents or conflict with, result in a breach of, or entitle Seller (with due notice or lapse of time or both) to terminate, accelerate or declare a default under, any agreement or instrument to which it is a party or by which it is bound. The execution, delivery and performance of this AgreementAgreement by Seller will not result in any violation by it of any law, assuming any order of any court or other agency of government, rule or regulation applicable to it. Seller is not a party to, nor subject to or bound by, any judgment, injunction or decree of any court or other governmental entity which may restrict or interfere with the due authorization, execution and delivery thereof performance of this Agreement by it.
(c) This Agreement is the other parties thereto, constitutes a legal, valid and binding obligation of the Seller, enforceable against the Seller it in accordance with its terms, except that (a) the enforceability thereof as such enforcement may be limited by subject to bankruptcy, insolvency, moratoriumreorganization, receivership and fraudulent conveyance, avoidance, preferential transfer, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and by general principles of equity that may limit the availability of equitable remedies and contractual obligations generally (regardless of whether the issue of enforceability is considered in a proceeding in equity or of creditors of depository institutions, the accounts of which are insured by the FDICat law), and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor therefore may be brought.
(3d) The execution No consent, waiver, order, approval, authorization or order of, or registration, qualification or filing with, any court or other governmental agency or authority is required for the execution, delivery and delivery performance by Seller of this Agreement by the Seller, the sale of the Mortgage Loans by the Seller under this Agreement, and the consummation of any other by Seller of the transactions contemplated by this Agreementhereby, except such consents which have been obtained, and as to such consents the fulfillment of or compliance with the terms thereof same are final, are in the ordinary course of business of the Seller full force and will effect, and are not (a) result in a material breach subject to any appeal or further judicial or administrative proceedings. No consent or waiver of any term or provision of the charter or by-laws of the Seller or (b) materially conflict with, result in a material breach, violation or acceleration of, or result in a material default under, the terms of party to any other material agreement or instrument contract to which the Seller is a party or by which it may be boundSeller is bound is required for the execution, delivery and performance by Seller of this Agreement.
(e) There is no action, suit, grievance, arbitration or proceeding (c) constitute a material violation other than proceedings of any statute, order or regulation applicable general applicability to the electrical generation, transmission and distribution industry and proceedings in the ordinary course of business to obtain authorizations, approvals and permits) pending or, to the knowledge of Seller, threatened against or affecting Seller of at law or in equity, before any federal, state, municipal or other governmental court, regulatory bodydepartment, administrative commission, board, arbitrator, bureau, agency or governmental body having jurisdiction over the instrumentality which prohibits or impairs Seller, other than such conflicts, breaches, violations, accelerations ’s ability to execute and deliver this Agreement or defaults which, individually or on a cumulative basis, would not have a material adverse effect on the Seller and its subsidiaries, taken as a whole, or the consummation to consummate any of the transactions contemplated hereby.
(f) There are no bankruptcy or insolvency proceedings pending or being contemplated by this Agreement; Seller or _______________, or, to its knowledge, threatened against Seller or ________________.
(g) No Event of Default with respect to Seller has occurred and the is continuing and no such event or circumstance would occur as a result of Seller is not in breach entering into or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Seller's ability to perform or meet any of performing its obligations under this Agreement.
(4) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller that would prohibit the execution or delivery of, or performance under, this Agreement by the Seller.
(b) The Seller hereby assigns, transfers and conveys to the Purchaser all of its rights with respect to the Mortgage Loans including, without limitation, the representations and warranties of FHHLC made pursuant to MLPA I, together with all rights of the Seller to require FHHLC to cure any breach thereof or to repurchase or substitute for any affected Mortgage Loan in accordance with MLPA I. It is understood and agreed that the obligation under MLPA I of FHHLC to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy, which may be enforced solely against FHHLC and not the Seller, respecting such breach available to the Purchaser on its behalf. The representations and warranties contained in this Agreement shall not be construed as a warranty or guaranty by the Seller as to the future payments by any Mortgagor. It is understood and agreed that the representations and warranties set forth in this Section 4.1 shall survive the sale of the Mortgage Loans to the Purchaser hereunder.
Appears in 3 contracts
Samples: Capacity and Associated Energy Purchase and Sale Agreement, Biomass Generated Energy Purchase and Sale Agreement, Capacity and Associated Energy Purchase and Sale Agreement
Representations and Warranties of the Seller. Except (ai) The as disclosed in any report, schedule, form, statement or other document (including exhibits and other information incorporated therein) required to be filed (or furnished) by the Company or any of its Subsidiaries with the SEC under the Securities Act, the Exchange Act or SOX with respect to any fiscal period ending after 1 January 2006, or with respect to any development, event or state of facts occurring since 1 January 2006, or in any document filed (or furnished) since 1 January 2006 by the Company with the SEC on a voluntary basis, and in each case publicly available (x) in respect of the First Stage Acquisition, prior to the Business Day preceding the Signing Date and (y) in respect of the Second Stage Acquisition, prior to the Business Day preceding the Second Stage Closing Date (the “Company Filed SEC Documents”); provided, however, that with respect to the Second Stage Acquisition, any disclosure made pursuant to this clause (i) that would not be permitted to be included in an update of the Seller Disclosure Letter (as defined below) pursuant to Section 7.7 and clause (ii) below shall not be given any effect, (ii) as set forth in the disclosure letter (with reference to the particular Section or subsection of this Agreement to which the information set forth in such disclosure letter relates; provided, however, that any information set forth in one section of such disclosure letter shall be deemed to apply to each other Section or subsection thereof to which its relevance is reasonably apparent on its face) (x) in respect of the First Stage Acquisition, delivered by the Seller to the Buyer prior to the execution of this Agreement and (y) in respect of the Second Stage Acquisition, as updated from time to time by the Seller pursuant to and in accordance with Section 7.7 prior to the Second Stage Closing Date (as delivered, and as so updated, the “Seller Disclosure Letter”) or (iii) as fully and fairly disclosed in writing in the documents or other materials contained in the Final Data Room, the Seller hereby represents and warrants to the PurchaserBuyer as of the Signing Date and, as applicable, as of the date First Stage Closing Date and the Second Stage Closing Date (except to the extent expressly made as of execution and delivery hereofan earlier date, thatin which case as of such date) as follows:
Section 4.1 Organization and Authority of the Seller and the Company
(1a) The Seller is a corporation duly organized as a national banking association and is validly existing under the laws of the United States of America Switzerland and is duly authorized and qualified to transact any and has all business contemplated by this Agreement to be conducted by the Seller in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such state, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to perform any of its other obligations under this Agreement in accordance with the terms thereof.
(2) The Seller has the requisite corporate power and authority to sell each Mortgage Loanenter into this Agreement and the Shareholders Agreement, and to execute, deliver perform its obligations hereunder and perform, thereunder and to enter into and consummate the transactions contemplated by hereby and thereby. The execution and delivery of this Agreement and has the Shareholders Agreement by the Seller, the performance by the Seller of its obligations hereunder and thereunder and the consummation by the Seller of the transactions contemplated hereby and thereby have been duly authorized by all necessary requisite corporate action on the part of the Seller the execution, delivery and performance Seller.
(b) Each of this Agreement; Agreement and this Agreement, the Shareholders Agreement has been duly executed and delivered by the Seller and (assuming the due authorization, execution and delivery thereof by the other parties thereto, Buyer) constitutes a legal, valid and binding obligation of the Seller, enforceable against the Seller in accordance with its their respective terms, except that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally or of creditors of depository institutions, the accounts of which are insured by the FDIC, and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
(3c) The execution and delivery of this Agreement by To the Seller’s Knowledge, the sale Company is duly organized, validly existing under the laws of Switzerland and has the Mortgage Loans by necessary corporate power and authority to own its assets and properties and carry on its business as currently conducted, except where the Seller under this Agreement, the consummation of any other of the transactions contemplated by this Agreement, and the fulfillment of failure to be so organized or compliance with the terms thereof are in the ordinary course of business of the Seller and will existing would not (ai) result in a material breach of any term or provision of adversely affect the charter or by-laws of the Seller or (b) materially conflict with, result in a material breach, violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Seller is a party or by which it may be bound, or (c) constitute a material violation of any statute, order or regulation applicable to the Seller of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Seller, other than such conflicts, breaches, violations, accelerations or defaults which, individually or on a cumulative basis, would not have a material adverse effect on the Seller and its subsidiaries, taken as a whole, or the consummation of the transactions contemplated by this Agreement; and the Seller is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Seller's ability to perform or meet any of its obligations under this Agreement.
(4) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller that would prohibit the execution or delivery of, or performance under, this Agreement by the Seller.
(b) The Seller hereby assigns, transfers and conveys to the Purchaser all of its rights with respect to the Mortgage Loans including, without limitation, the representations and warranties of FHHLC made pursuant to MLPA I, together with all rights of the Seller to require FHHLC carry out its obligations under, and to cure any breach thereof consummate the transactions contemplated by, this Agreement and the Shareholders Agreement or (ii) materially adversely affect the ability of the Company to repurchase or substitute for any affected Mortgage Loan in accordance with MLPA I. It conduct its business as it is understood and agreed that the obligation under MLPA I of FHHLC to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy, which may be enforced solely against FHHLC and not currently conducted.
(d) To the Seller’s Knowledge, respecting such breach available to each Significant Subsidiary of the Purchaser on its behalf. The representations and warranties contained in this Agreement shall not be construed Company as a warranty or guaranty by the Seller as to the future payments by any Mortgagor. It is understood and agreed that the representations and warranties set forth in this Section 4.1 shall survive the sale 4.1(d) of the Mortgage Loans Seller Disclosure Schedule is duly incorporated and validly existing under the laws of their respective jurisdiction of incorporation. To the Seller’s Knowledge, the Company, directly or indirectly, owns all the shares in each such Significant Subsidiary, free and clear of any Encumbrances; all such shares are validly issued and fully paid up to the Purchaser hereundertheir par value.
Appears in 2 contracts
Samples: Purchase and Option Agreement (Novartis Ag), Purchase and Option Agreement (Novartis Ag)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Purchaser, as of the date of execution and delivery hereof, that:
(1) The Seller is duly organized as a national banking association and is validly existing under the laws of the United States of America and is duly authorized and qualified to transact any and all business contemplated by this Agreement to be conducted by the Seller in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such state, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to perform any of its other obligations under this Agreement in accordance with the terms thereof.
(2) The Seller has the requisite power and authority to sell each Mortgage Loan, and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary action on the part of the Seller the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties thereto, constitutes a legal, valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally or of creditors of depository institutions, the accounts of which are insured by the FDIC, and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
(3) The execution and delivery of this Agreement by the Seller, the sale of the Mortgage Loans by the Seller under this Agreement, the consummation of any other of the transactions contemplated by this Agreement, and the fulfillment of or compliance with the terms thereof are in the ordinary course of business of the Seller and will not (a) result in a material breach of any term or provision of the charter or by-laws of the Seller or (b) materially conflict with, result in a material breach, violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Seller is a party or by which it may be bound, or (c) constitute a material violation of any statute, order or regulation applicable to the Seller of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Seller, other than such conflicts, breaches, violations, accelerations or defaults which, individually or on a cumulative basis, would not have a material adverse effect on the Seller and its subsidiaries, taken as a whole, or the consummation of the transactions contemplated by this Agreement; and the Seller is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Seller's ability to perform or meet any of its obligations under this Agreement.
(4) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller that would prohibit the execution or delivery of, or performance under, this Agreement by the Seller.
(b) The Seller hereby assigns, transfers and conveys to the Purchaser all of its rights with respect to the Mortgage Loans including, without limitation, the representations and warranties of FHHLC made pursuant to MLPA I, together with all rights of the Seller to require FHHLC to cure any breach thereof or to repurchase or substitute for any affected Mortgage Loan in accordance with MLPA I. It is understood and agreed that the obligation under MLPA I of FHHLC to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy, which may be enforced solely against FHHLC and not the Seller, respecting such breach available to the Purchaser on its behalf. The representations and warranties contained in this Agreement shall not be construed as a warranty or guaranty by the Seller as to the future payments by any Mortgagor. It is understood and agreed that the representations and warranties set forth in this Section 4.1 shall survive the sale of the Mortgage Loans to the Purchaser hereunder.
Appears in 2 contracts
Samples: Mortgage Loan Purchase Agreement (First Horizon Asset Securities Inc), Mortgage Loan Purchase Agreement (First Horizon Asset Securities Inc)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Purchaser, Depositor that as of the date of execution and delivery hereof, hereof that:
(1i) The Seller is a Delaware corporation duly organized as a national banking association and is organized, validly existing and in good standing under the laws of the United States of America governing its creation and is duly authorized existence and qualified to transact any and all business contemplated by this Agreement to be conducted by the Seller in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such state, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to perform any of its other obligations under this Agreement in accordance with the terms thereof.
(2) The Seller has the requisite full corporate power and authority to sell each Mortgage Loanown its property, and to execute, deliver and perform, carry on its business as presently conducted and to enter into and consummate perform its obligations under this Agreement;
(ii) The execution and delivery by the Seller of this Agreement have been duly authorized by all necessary corporate action on the part of the Seller; none of the execution and delivery of this Agreement, the consummation of the transactions herein contemplated or compliance with the provisions hereof will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the federal stock charter or bylaws of the Seller;
(iii) The execution, delivery and performance by the Seller of this Agreement and the consummation of the transactions contemplated hereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) This Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Depositor, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its terms except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement and has duly authorized by all necessary action on or (B) with respect to any other matter which in the part judgment of the Seller the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties thereto, constitutes a legal, valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except that (a) the enforceability thereof may will be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating determined adversely to creditors' rights generally or of creditors of depository institutions, the accounts of which are insured by the FDIC, and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
(3) The execution and delivery of this Agreement by the Seller, the sale of the Mortgage Loans by the Seller under this Agreement, the consummation of any other of the transactions contemplated by this Agreement, and the fulfillment of or compliance with the terms thereof are in the ordinary course of business of the Seller and will not (a) result in a material breach of any term or provision of the charter or by-laws of the Seller or (b) materially conflict with, result in a material breach, violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Seller is a party or by which it may be bound, or (c) constitute a material violation of any statute, order or regulation applicable if determined adversely to the Seller of any courtmaterially and adversely affect it or its business, regulatory bodyassets, administrative agency operations or governmental body having jurisdiction over the Sellercondition, other than such conflicts, breaches, violations, accelerations financial or defaults which, individually or on a cumulative basis, would not have a material adverse effect on the Seller and its subsidiaries, taken as a wholeotherwise, or the consummation of the transactions contemplated by this Agreement; and the Seller is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Seller's adversely affect its ability to perform or meet any of its obligations under this Agreement.
(4) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller that would prohibit the execution or delivery of, or performance under, this Agreement by the Seller.
(b) The Seller hereby assigns, transfers representations and conveys to warranties of the Purchaser all of its rights Transferors with respect to the Mortgage Loans includingcontained in the Transfer Agreement were made as of the date of the Transfer Agreement and brought forward to the Closing Date pursuant to the Bring Down Letter. The representations and warranties of the Transferors with respect to the Mortgage Loans contained in the Bring Down Letter were made as of the Closing Date. To the extent that any fact, without limitationcondition or event with respect to a Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the Transfer Agreement or Bring Down Letter and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than a breach by the Seller of the representations and warranties made pursuant to Sections 1.04(b)(vii) and 1.04(b)(viii)) shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(vii) and 1.04(b)(viii) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of FHHLC made pursuant to MLPA I, together with all rights of the Seller to require FHHLC to cure any breach thereof or to repurchase or substitute for any affected Mortgage Loan in accordance with MLPA I. It is understood and agreed that the obligation under MLPA I of FHHLC to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy, which may be enforced solely against FHHLC and not the Seller, respecting such breach available to the Purchaser on its behalf. The representations and warranties contained in this Agreement shall not be construed as a warranty or guaranty by the Seller as to the future payments by any Mortgagor. It is understood and agreed that Section 1.04(b) (other than the representations and warranties set forth made pursuant to Sections 1.04(b)(vii) and 1.04(b)(viii)) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by a Transferor in this Section 4.1 the Transfer Agreement or Bring Down Letter. The Seller shall survive have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the sale Mortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by a Transferor in the Transfer Agreement or Bring Down Letter, without regard to whether such Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if such Transferor fulfills its obligations under the provisions of the Transfer Agreement and the Bring Down Letter by substituting for the affected Mortgage Loan a mortgage loan which is not a Replacement Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Mortgage Loans to the Purchaser Depositor hereunder, as to each, that as of November 29, 2005:
(i) The information set forth with respect to the Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Mortgage Loans, and the information with respect to each Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) As of the Closing Date, no Mortgage Loan is in foreclosure;
(iii) As of the Closing Date, each Mortgage Loan is a "qualified mortgage" within the meaning of Section 860G of the Code (as determined without regard to Treas.
Appears in 2 contracts
Samples: Mortgage Loan Sale and Assignment Agreement (Mortgage Loan Asset-Backed Certificates, Series 2005-NCB), Mortgage Loan Sale and Assignment Agreement (Mortgage Loan Asset-Backed Certificates, Series 2005-NCB)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Purchaser, as of the date of execution and delivery hereof, that:
(1) The Seller is duly organized as a national banking association and is validly existing under the laws of the United States of America and is duly authorized and qualified to transact any and all business contemplated by this Agreement to be conducted by the Seller in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such state, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to perform any of its other obligations under this Agreement in accordance with the terms thereof.
(2) The Seller has the requisite power and authority to sell each Mortgage Loan, and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary action on the part of the Seller the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties thereto, constitutes a legal, valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally or of creditors of depository institutions, the accounts of which are insured by the FDIC, and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
(3) The execution and delivery of this Agreement by the Seller, the sale of the Mortgage Loans by the Seller under this Agreement, the consummation of any other of the transactions contemplated by this Agreement, and the fulfillment of or compliance with the terms thereof are in the ordinary course of business of the Seller and will not (a) result in a material breach of any term or provision of the charter or by-laws of the Seller or (b) materially conflict with, result in a material breach, violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Seller is a party or by which it may be bound, or (c) constitute a material violation of any statute, order or regulation applicable to the Seller of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Seller, other than such conflicts, breaches, violations, accelerations or defaults which, individually or on a cumulative basis, would not have a material adverse effect on the Seller and its subsidiaries, taken as a whole, or the consummation of the transactions contemplated by this Agreement; and the Seller is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Seller's ability to perform or meet any of its obligations under this Agreement.
(4) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller that would prohibit the execution or delivery of, or performance under, this Agreement by the Seller.
(b) The Seller hereby assigns, transfers and conveys to the Purchaser all of its rights with respect to the Mortgage Loans including, without limitation, the representations and warranties of FHHLC made pursuant to MLPA I, together with all rights of the Seller to require FHHLC to cure any breach thereof or to repurchase or substitute for any affected Mortgage Loan in accordance with MLPA I. It is understood and agreed that the obligation under MLPA I of FHHLC to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy, which may be enforced solely remedy against FHHLC and not the Seller, respecting such breach available to the Purchaser on its behalf. The representations and warranties contained in this Agreement shall not be construed as a warranty or guaranty by the Seller as to the future payments by any Mortgagor. It is understood and agreed that the representations and warranties set forth in this Section 4.1 shall survive the sale of the Mortgage Loans to the Purchaser hereunder.
Appears in 2 contracts
Samples: Mortgage Loan Purchase Agreement (First Horizon Asset Securities Inc), Mortgage Loan Purchase Agreement (First Horizon Asset Securities Inc)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Purchaser, Depositor that as of the date of execution and delivery hereof, hereof that:
(1i) The Seller is a Delaware corporation duly organized as a national banking association and is organized, validly existing and in good standing under the laws of the United States of America governing its creation and is duly authorized existence and qualified to transact any and all business contemplated by this Agreement to be conducted by the Seller in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such state, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to perform any of its other obligations under this Agreement in accordance with the terms thereof.
(2) The Seller has the requisite full corporate power and authority to sell each Mortgage Loanown its property, and to execute, deliver and perform, carry on its business as presently conducted and to enter into and consummate perform its obligations under this Agreement;
(ii) The execution and delivery by the Seller of this Agreement have been duly authorized by all necessary corporate action on the part of the Seller; none of the execution and delivery of this Agreement, the consummation of the transactions herein contemplated or compliance with the provisions hereof will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the federal stock charter or bylaws of the Seller;
(iii) The execution, delivery and performance by the Seller of this Agreement and the consummation of the transactions contemplated hereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) This Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Depositor, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its terms except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement and has duly authorized by all necessary action on or (B) with respect to any other matter which in the part judgment of the Seller the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties thereto, constitutes a legal, valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except that (a) the enforceability thereof may will be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating determined adversely to creditors' rights generally or of creditors of depository institutions, the accounts of which are insured by the FDIC, and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
(3) The execution and delivery of this Agreement by the Seller, the sale of the Mortgage Loans by the Seller under this Agreement, the consummation of any other of the transactions contemplated by this Agreement, and the fulfillment of or compliance with the terms thereof are in the ordinary course of business of the Seller and will not (a) result in a material breach of any term or provision of the charter or by-laws of the Seller or (b) materially conflict with, result in a material breach, violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Seller is a party or by which it may be bound, or (c) constitute a material violation of any statute, order or regulation applicable if determined adversely to the Seller of any courtmaterially and adversely affect it or its business, regulatory bodyassets, administrative agency operations or governmental body having jurisdiction over the Sellercondition, other than such conflicts, breaches, violations, accelerations financial or defaults which, individually or on a cumulative basis, would not have a material adverse effect on the Seller and its subsidiaries, taken as a wholeotherwise, or the consummation of the transactions contemplated by this Agreement; and the Seller is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Seller's adversely affect its ability to perform or meet any of its obligations under this Agreement.
(4) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller that would prohibit the execution or delivery of, or performance under, this Agreement by the Seller.
(b) The Seller hereby assigns, transfers representations and conveys to the Purchaser all warranties of its rights each Transferor with respect to the Mortgage Loans includingcontained in the applicable Transfer Agreement were made as of the date of such Transfer Agreement and brought forward to the Closing Date pursuant to the applicable Bring Down Letter. The representations and warranties of each Transferor with respect to the Mortgage Loans contained in the applicable Bring Down Letter are being made as of the Closing Date. To the extent that any fact, without limitationcondition or event with respect to a Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the applicable Transfer Agreement or Bring Down Letter and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than a breach by the Seller of the representations and warranties made pursuant to Sections 1.04(b)(vi) and 1.04(b)(vii)) shall be the right to enforce the obligations of the applicable Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(vi) and 1.04(b)(vii) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of FHHLC made pursuant to MLPA I, together with all rights of the Seller to require FHHLC to cure any breach thereof or to repurchase or substitute for any affected Mortgage Loan in accordance with MLPA I. It is understood and agreed that the obligation under MLPA I of FHHLC to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy, which may be enforced solely against FHHLC and not the Seller, respecting such breach available to the Purchaser on its behalf. The representations and warranties contained in this Agreement shall not be construed as a warranty or guaranty by the Seller as to the future payments by any Mortgagor. It is understood and agreed that Section 1.04(b) (other than the representations and warranties set forth made pursuant to Sections 1.04(b)(vi) and 1.04(b)(vii)) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by a Transferor in this Section 4.1 the applicable Transfer Agreement or Bring Down Letter. The Seller shall survive have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the sale Mortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by a Transferor in the applicable Transfer Agreement or Bring Down Letter, without regard to whether such Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if such Transferor fulfills its obligations under the provisions of the applicable Transfer Agreement and the Bring Down Letter by substituting for the affected Mortgage Loan a mortgage loan which is not a Replacement Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Mortgage Loans to the Purchaser Depositor hereunder, as to each, that as of July 7, 2004:
(i) The information set forth with respect to the Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Mortgage Loans, and the information with respect to each Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) As of the Closing Date, no Mortgage Loan is in foreclosure;
(iii) As of the Closing Date, each Mortgage Loan is a "qualified mortgage" within the meaning of Section 860G of the Code (as determined without regard to Treas.
Appears in 2 contracts
Samples: Mortgage Loan Sale and Assignment Agreement (Merrill Lynch Mortgage Investors Inc), Mortgage Loan Sale and Assignment Agreement (Merrill Lynch Mortgage Investors Trust, Series 2004-Sl1)
Representations and Warranties of the Seller. The Seller represents, warrants and covenants to the Purchaser that as of the Closing Date or as of such date specifically provided herein:
(a) The Seller hereby represents and warrants to the Purchaseris a corporation duly organized, as of the date of execution and delivery hereof, that:
(1) The Seller is duly organized as a national banking association and is validly existing and in good standing under the laws of the United States State of America New Jersey and has all licenses necessary to carry out its business as now being conducted, and is duly authorized licensed and qualified to transact any business in and all business contemplated by this Agreement to be conducted by is in good standing under the Seller in any laws of each state in which a 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 andand no demand for such licensing or qualification has been made upon such Seller by any such state, and in any event, event such Seller is in compliance with the doing business laws of any such state, state to the extent necessary to ensure its ability to enforce the enforceability of each Mortgage Loan and to perform any the servicing of its other obligations under this Agreement the Mortgage Loans in accordance with the terms thereof.of this Agreement;
(2b) The Seller has the requisite full power and authority and legal right to hold, transfer and convey each Mortgage Loan, to sell each Mortgage Loan, Loan and to execute, deliver and perform, and to enter into and consummate the all transactions contemplated by this Agreement and to conduct its business as presently conducted, has duly authorized by all necessary action on the part of the Seller the execution, delivery and performance of this Agreement; Agreement and any agreements contemplated hereby, has duly executed and delivered this Agreement, assuming and any agreements contemplated hereby, and this Agreement and each Assignment of Mortgage to the due authorization, execution Purchaser and delivery thereof by the other parties theretoany agreements contemplated hereby, constitutes a legal, valid and binding obligation of the Seller, enforceable against the Seller it in accordance with its terms, except that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally or of creditors of depository institutions, the accounts of which are insured all requisite corporate action has been taken by the FDIC, Seller to make this Agreement and all agreements contemplated hereby valid and binding upon the Seller in accordance with their terms;
(bc) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion None of the court before which any proceeding therefor may be brought.
(3) The execution and delivery of this Agreement Agreement, the origination of the Mortgage Loans by the Seller, the sale of the Mortgage Loans by to the Seller under this AgreementPurchaser, the consummation of any other of the transactions contemplated by this Agreementhereby, and or the fulfillment of or compliance with the terms thereof are in the ordinary course and conditions of business this Agreement will conflict with any of the Seller and will not (a) terms, conditions or provisions of the Seller's charter or by-laws or materially conflict with or result in a material breach of any term or provision of the charter terms, conditions or by-laws of the Seller or (b) materially conflict with, result in a material breach, violation or acceleration of, or result in a material default under, the terms provisions of any other material legal restriction or any agreement or instrument to which the Seller is now a party or by which it may be is bound, or (c) constitute a default or result in an acceleration under any of the foregoing, or result in the material violation of any statutelaw, rule, regulation, order, judgment or decree to which the Seller or its property is subject or impair the ability of the Purchaser to realize on the Mortgage Loans or impair the value of the Mortgage Loans;
(d) Each Mortgage Note, each Mortgage, each Assignment of Mortgage and any other documents required pursuant to this Agreement to be delivered to the Purchaser or its designee, or its assignee for each Mortgage Loan, have been, on or before the Closing Date, delivered to the Purchaser or its designee, or its assignee;
(e) There is no litigation, suit, proceeding or investigation pending or threatened, or any order or regulation applicable decree outstanding, with respect to the Seller of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Seller, other than such conflicts, breaches, violations, accelerations or defaults which, individually either in one instance or on a cumulative basisin the aggregate, would not is reasonably likely to have a material adverse effect on the sale or servicing of the Mortgage Loans, the execution, delivery, performance or enforceability of this Agreement, or which is reasonably likely to have a material adverse effect on the financial condition of the Seller.
(f) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Seller of or compliance by the Seller with this Agreement, or the sale of the Mortgage Loans and its subsidiaries, taken as a whole, delivery of the Mortgage Files to the Purchaser or the consummation of the transactions contemplated by this Agreement; , except for consents, approvals, authorizations and orders which have been obtained;
(g) The consummation of the transactions contemplated by this Agreement is in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to bulk transfer or any similar statutory provisions in effect in any applicable jurisdiction;
(h) The origination, collection and servicing practices used by the Seller, any Originator and Prior Servicers, with respect to each Mortgage Note and Mortgage have been legal and in accordance with applicable laws and regulations, and in all material respects proper and prudent in the mortgage origination and servicing business. With respect to escrow deposits and payments that the Seller is not entitled to collect, all such payments are in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Seller's ability to perform or meet any of its obligations under this Agreement.
(4) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller that would prohibit the execution or delivery possession of, or performance underunder the control of, this Agreement by the Seller., and there exist no deficiencies in connection therewith for which customary arrangements for repayment thereof have not been made. All escrow payments have been collected in full compliance with state and federal law and the provisions of the related Mortgage Note and Mortgage. 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;
(bi) The Seller hereby assigns, transfers and conveys used no adverse selection procedures in selecting from among the outstanding first lien residential mortgage loans owned by it which were available for inclusion in the sale to the Purchaser all of its rights with respect to the Mortgage Loans including, without limitation, the representations and warranties of FHHLC made pursuant to MLPA I, together with all rights of the Purchaser;
(j) The Seller to require FHHLC to cure any breach thereof or to repurchase or substitute for any affected Mortgage Loan in accordance with MLPA I. It is understood and agreed that the obligation under MLPA I of FHHLC to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy, which may be enforced solely against FHHLC and not the Seller, respecting such breach available to the Purchaser on its behalf. The representations and warranties contained in this Agreement shall not be construed as a warranty or guaranty by the Seller as to the future payments by any Mortgagor. It is understood and agreed that the representations and warranties set forth in this Section 4.1 shall survive will treat the sale of the Mortgage Loans to the Purchaser hereunderas a sale for reporting and accounting purposes and, to the extent appropriate, for federal income tax purposes;
(k) Seller is an approved seller/servicer of residential mortgage loans for XXXXXX XXX/FHLMC and HUD, with such facilities, procedures and personnel necessary for the sound servicing of such mortgage loans. The Seller is duly qualified, licensed, registered and otherwise authorized under all applicable federal, state and local laws, and regulations, if applicable, meets the minimum capital requirements set forth by the OCC, and is in good standing to sell mortgage loans to and service mortgage loans for XXXXXX MAE/FHLMC and no event has occurred which would make Seller unable to comply with eligibility requirements or which would require notification to either XXXXXX XXX or FHLMC;
(l) The Seller 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. 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;
(m) No statement, tape, diskette, form, report or other document prepared by, or on behalf of, Seller pursuant to this Agreement or in connection with the transactions contemplated hereby, contains or will contain any statement that is or will be inaccurate or misleading in any material respect;
(n) The Seller acknowledges and agrees that the Servicing Fee represents reasonable compensation for performing such services and that the entire Servicing Fee shall be treated by the Seller, for accounting and tax purposes, as compensation for the servicing and administration of the Mortgage Loans pursuant to this Agreement; in the opinion of Seller, the consideration received by Seller upon the sale of the Mortgage Loans to Purchaser under this Agreement constitutes fair consideration for the Mortgage Loans under current market conditions.
(o) If requested by the Purchaser, the Seller has delivered to the Purchaser financial statements as to its last two complete fiscal years. All such financial statements fairly present the pertinent results of operations and changes in financial position for each of such periods and the financial position at the end of each such period of the Seller and its subsidiaries and have been prepared in accordance with GAAP consistently applied throughout the periods involved, except as set forth in the notes thereto. There has been no change in the business, operations, financial condition, properties or assets of the Seller since the date of the Seller's financial statements that would have a material adverse effect on its ability to perform its obligations under this Agreement;
(p) The Seller 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 sale of the Mortgage Loans; and
(q) The Seller is a member of MERS in good standing, and will comply in all material respects with the rules and procedures of MERS in connection with the servicing of the MERS Mortgage Loans for as long as such Mortgage Loans are registered with MERS.
Appears in 2 contracts
Samples: Mortgage Loan Purchase Agreement (Structured Asset Securities Corp Mortgage Pass-Through Certificates, Series 2005-11h), Mortgage Loan Purchase Agreement (Structured Asset Securities Corp)
Representations and Warranties of the Seller. The Seller represents, warrants and covenants to the Purchaser that as of the Closing Date or as of such date specifically provided herein:
(a) The Seller hereby represents and warrants to the Purchaseris a limited liability company duly organized, as of the date of execution and delivery hereof, that:
(1) The Seller is duly organized as a national banking association and is validly existing and in good standing under the laws of the United States State of America Delaware and has all licenses necessary to carry out its business as now being conducted, and is duly authorized licensed and qualified to transact any business in and all business contemplated by this Agreement to be conducted by is in good standing under the Seller in any laws of each state in which a 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 andand no demand for such licensing or qualification has been made upon such Seller by any such state, and in any event, event such Seller is in compliance with the doing business laws of any such state, state to the extent necessary to ensure its ability to enforce the enforceability of each Mortgage Loan and to perform any the servicing of its other obligations under this Agreement the Mortgage Loans in accordance with the terms thereof.of this Agreement;
(2b) The Seller has the requisite full power and authority and legal right to hold, transfer and convey each Mortgage Loan, to sell each Mortgage Loan, Loan and to execute, deliver and perform, and to enter into and consummate the all transactions contemplated by this Agreement and to conduct its business as presently conducted, has duly authorized by all necessary action on the part of the Seller the execution, delivery and performance of this Agreement; Agreement and any agreements contemplated hereby, has duly executed and delivered this Agreement, assuming and any agreements contemplated hereby, and this Agreement and each Assignment of Mortgage to the due authorization, execution Purchaser and delivery thereof by the other parties theretoany agreements contemplated hereby, constitutes a legal, valid and binding obligation of the Seller, enforceable against the Seller it in accordance with its terms, except that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally or of creditors of depository institutions, the accounts of which are insured all requisite corporate action has been taken by the FDIC, Seller to make this Agreement and all agreements contemplated hereby valid and binding upon the Seller in accordance with their terms;
(bc) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion None of the court before which any proceeding therefor may be brought.
(3) The execution and delivery of this Agreement Agreement, the origination of the Mortgage Loans by the Seller, the sale of the Mortgage Loans by to the Seller under this AgreementPurchaser, the consummation of any other of the transactions contemplated by this Agreementhereby, and or the fulfillment of or compliance with the terms thereof are and conditions of this Agreement will conflict with any of the terms, conditions or provisions of the Seller’s charter or by-laws or materially conflict with or result in a material breach of any of the terms, conditions or provisions of any legal restriction or any agreement or instrument to which the Seller is now a party or by which it is bound, or constitute a default or result in an acceleration under any of the foregoing, or result in the material violation of any law, rule, regulation, order, judgment or decree to which the Seller or its property is subject or impair the ability of the Purchaser to realize on the Mortgage Loans or impair the value of the Mortgage Loans;
(d) Each Mortgage Note, each Mortgage, each Assignment of Mortgage and any other documents required pursuant to this Agreement to be delivered to the Purchaser or its designee, or its assignee for each Mortgage Loan, have been, on or before the Closing Date, delivered to the Purchaser or its designee, or its assignee;
(e) There is no litigation, suit, proceeding or investigation pending or threatened, or any order or decree outstanding, with respect to the Seller which is reasonably likely to have a material adverse effect on the sale or servicing of the Mortgage Loans, the execution, delivery, performance or enforceability of this Agreement, or which is reasonably likely to have a material adverse effect on the financial condition of the Seller;
(f) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Seller of or compliance by the Seller with this Agreement, except for consents, approvals, authorizations and orders which have been obtained;
(g) The consummation of the transactions contemplated by this Agreement is in the ordinary course of business of the Seller Seller, and will not (a) result in a material breach of any term or provision the transfer, assignment and conveyance of the charter or by-laws of Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to bulk transfer or any similar statutory provisions in effect in any applicable jurisdiction;
(bh) materially conflict with, result in a material breach, violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the The Seller is a party or by which it may be bound, or (c) constitute a material violation member of any statute, order or regulation applicable to the Seller of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Seller, other than such conflicts, breaches, violations, accelerations or defaults which, individually or on a cumulative basis, would not have a material adverse effect on the Seller and its subsidiaries, taken as a whole, or the consummation of the transactions contemplated by this Agreement; and the Seller is not MERS in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Seller's ability to perform or meet any of its obligations under this Agreement.good standing;
(4) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller that would prohibit the execution or delivery of, or performance under, this Agreement by the Seller.
(bi) The Seller hereby assigns, transfers and conveys used no adverse selection procedures in selecting from among the outstanding first lien residential mortgage loans owned by it which were available for inclusion in the sale to the Purchaser all of its rights with respect to the Mortgage Loans including, without limitation, the representations and warranties of FHHLC made pursuant to MLPA I, together with all rights of the Purchaser;
(j) The Seller to require FHHLC to cure any breach thereof or to repurchase or substitute for any affected Mortgage Loan in accordance with MLPA I. It is understood and agreed that the obligation under MLPA I of FHHLC to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy, which may be enforced solely against FHHLC and not the Seller, respecting such breach available to the Purchaser on its behalf. The representations and warranties contained in this Agreement shall not be construed as a warranty or guaranty by the Seller as to the future payments by any Mortgagor. It is understood and agreed that the representations and warranties set forth in this Section 4.1 shall survive will treat the sale of the Mortgage Loans to the Purchaser hereunderas a sale for reporting and accounting purposes and, to the extent appropriate, for federal income tax purposes;
(k) The Seller is an approved seller/servicer of residential mortgage loans for FNMA/FHLMC and HUD, with such facilities, procedures and personnel necessary for the sound servicing of such mortgage loans. The Seller is duly qualified, licensed, registered and otherwise authorized under all applicable federal, state and local laws, and regulations, if applicable, meets the minimum capital requirements set forth by the OCC, and is in good standing to sell mortgage loans to and service mortgage loans for FNMA/FHLMC and no event has occurred which would make Seller unable to comply with eligibility requirements or which would require notification to either FNMA or FHLMC;
(l) The Seller 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. 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;
(m) No statement, tape, diskette, form, report or other document prepared by, or on behalf of, Seller pursuant to this Agreement or in connection with the transactions contemplated hereby, contains or will contain any statement that is or will be inaccurate or misleading in any material respect;
(n) The Seller acknowledges and agrees that the Servicing Fee represents reasonable compensation for performing such services and that the entire Servicing Fee shall be treated by the Seller, for accounting and tax purposes, as compensation for the servicing and administration of the Mortgage Loans pursuant to this Agreement; in the opinion of Seller, the consideration received by Seller upon the sale of the Mortgage Loans to Purchaser under this Agreement constitutes fair consideration for the Mortgage Loans under current market conditions;
(o) If requested by the Purchaser, the Seller has delivered to the Purchaser financial statements as to its last two complete fiscal years. All such financial statements fairly present the pertinent results of operations and changes in financial position for each of such periods and the financial position at the end of each such period of the Seller and its subsidiaries and have been prepared in accordance with GAAP consistently applied throughout the periods involved, except as set forth in the notes thereto. There has been no change in the business, operations, financial condition, properties or assets of the Seller since the date of the Seller’s financial statements that would have a material adverse effect on its ability to perform its obligations under this Agreement; and
(p) The Seller 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 sale of the Mortgage Loans.
Appears in 2 contracts
Samples: Mortgage Loan Purchase, Warranties and Servicing Agreement (GSR Mortgage Loan Trust 2007-2f), Mortgage Loan Purchase, Warranties and Servicing Agreement (GSR Mortgage Loan Trust 2007-1f)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Purchaser, as of the date of execution and delivery hereof, that:
(1) The Seller is duly organized as a national banking association and is validly existing under the laws of the United States of America and is duly authorized and qualified to transact any and all business contemplated by this Agreement to be conducted by the Seller in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such state, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to perform any of its other obligations under this Agreement in accordance with the terms thereofAmerica.
(2) The Seller has the requisite power and authority to sell each Mortgage Loan, and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary action on the part of the Seller the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties thereto, constitutes a legal, valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally or of creditors of depository institutions, the accounts of which are insured by the FDIC, and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
(3) The execution and delivery of this Agreement by the Seller, the sale of the Mortgage Loans by the Seller under this Agreement, the consummation of any other of the transactions contemplated by this Agreement, and the fulfillment of or compliance with the terms thereof are in the ordinary course of business of the Seller and will not (a) result in a material breach of any term or provision of the charter or by-laws of the Seller or (b) materially conflict with, result in a material breach, violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Seller is a party or by which it may be bound, or (c) constitute a material violation of any statute, order or regulation applicable to the Seller of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Seller, other than such conflicts, breaches, violations, accelerations or defaults which, individually or on a cumulative basis, would not have a material adverse effect on the Seller and its subsidiaries, taken as a whole, or the consummation of the transactions contemplated by this Agreement; and the Seller is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Seller's ability to perform or meet any of its obligations under this Agreement.
(4) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller that would prohibit the execution or delivery of, or performance under, this Agreement by the Seller.
(b) The Seller hereby assigns, transfers and conveys to the Purchaser all of its rights with respect to the Mortgage Loans including, without limitation, the representations and warranties of FHHLC made pursuant to MLPA I, together with all rights of the Seller to require FHHLC to cure any breach thereof or to repurchase or substitute for any affected Mortgage Loan in accordance with MLPA I. It is understood and agreed that the obligation under MLPA I of FHHLC to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy, which may be enforced solely remedy against FHHLC and not the Seller, respecting such breach available to the Purchaser on its behalf. The representations and warranties contained in this Agreement shall not be construed as a warranty or guaranty by the Seller as to the future payments by any Mortgagor. It is understood and agreed that the representations and warranties set forth in this Section 4.1 3.1 shall survive the sale of the Mortgage Loans to the Purchaser hereunderhereunder and the subsequent transfer of the Mortgage Loans by the Purchaser to the Trustee pursuant to the Pooling and Servicing Agreement.
Appears in 2 contracts
Samples: Mortgage Loan Purchase Agreement (First Horizon Asset Securities Inc), Mortgage Loan Purchase Agreement (First Horizon Asset Securities Inc)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Purchaser, as of the date of execution and delivery hereof, that:
(1) The Seller is duly organized as a national banking association Kansas corporation and is validly existing and in good standing under the laws of the United States State of America Kansas and is duly authorized and qualified to transact any and all business contemplated by this Agreement to be conducted by the Seller in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such state, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to perform any of its other obligations under this Agreement in accordance with the terms thereof.
(2) The Seller has the requisite full corporate power and authority to sell each Mortgage Loan, and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary corporate action on the part of the Seller the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties thereto, constitutes a legal, valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally or of creditors of depository institutions, the accounts of which are insured by the FDIC, and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
(3) The execution and delivery of this Agreement by the Seller, the sale of the Mortgage Loans by the Seller under this Agreement, the consummation of any other of the transactions contemplated by this Agreement, and the fulfillment of or compliance with the terms thereof are in the ordinary course of business of the Seller and will not (a) result in a material breach of any term or provision of the charter or by-laws of the Seller or (b) materially conflict with, result in a material breach, violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Seller is a party or by which it may be bound, or (c) constitute a material violation of any statute, order or regulation applicable to the Seller of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Seller, other than such conflicts, breaches, violations, accelerations or defaults which, individually or on a cumulative basis, would not have a material adverse effect on the Seller and its subsidiaries, taken as a whole, or the consummation of the transactions contemplated by this Agreement; and the Seller is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Seller's ability to perform or meet any of its obligations under this Agreement.
(4) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller that would prohibit the execution or delivery of, or performance under, this Agreement by the Seller.
(b) The Seller hereby assigns, transfers makes the representations and conveys warranties set forth in Schedule B hereto to the Purchaser, as of the Closing Date, or if so specified therein, as of the Cut-off Date.
(c) Upon discovery by either of the parties hereto of a breach of a representation or warranty made pursuant to Schedule B hereto that materially and adversely affects the interests of the Purchaser all in any Mortgage Loan, the party discovering such breach shall give prompt notice thereof to the other party. The Seller hereby covenants that within 90 days of the earlier of its rights discovery or its receipt of written notice from the Purchaser of a breach of any representation or warranty made pursuant to Schedule B hereto which materially and adversely affects the interests of the Purchaser in any Mortgage Loan, it shall cure such breach in all material respects, and if such breach is not so cured, shall, (i) if such 90-day period expires prior to the second anniversary of the Closing Date, remove such Mortgage Loan (a "Deleted Mortgage Loan") from the pool of mortgages listed on Schedule B hereto and substitute in its place a Substitute Mortgage Loan, in the manner and subject to the conditions set forth in this Section; or (ii) repurchase the affected Mortgage Loan or Mortgage Loans from the Purchaser at the Mortgage Loan Purchase Price in the manner set forth below. With respect to the representations and warranties described in this Section which are made to the best of the Seller's knowledge, if it is discovered by either the Seller or the Purchaser that the substance of such representation and warranty is inaccurate and such inaccuracy materially and adversely affects the value of the related Mortgage Loan or the interests of the Purchaser therein, notwithstanding the Seller's lack of knowledge with respect to the substance of such representation or warranty, such inaccuracy shall be deemed a breach of the applicable representation or warranty. With respect to any Substitute Mortgage Loan or Loans, the Seller shall deliver to the Trustee or to the Custodian on its behalf the Mortgage Note, the Mortgage, the related assignment of the Mortgage, and such other documents and agreements as are required by Section 2.1, with the Mortgage Note endorsed and the Mortgage assigned as required by Section 2.1. No substitution is permitted to be made in any calendar month after the Determination Date for such month. Scheduled Payments due with respect to Substitute Mortgage Loans includingin the month of substitution will be retained by the Seller. Upon such substitution, without limitationthe Substitute Mortgage Loan or Loans shall be subject to the terms of this Agreement in all respects, and the Seller shall be deemed to have made with respect to such Substitute Mortgage Loan or Loans, as of the date of substitution, the representations and warranties of FHHLC made pursuant to MLPA I, together Schedule B hereto with all rights of the Seller respect to require FHHLC to cure any breach thereof or to repurchase or substitute for any affected such Mortgage Loan in accordance with MLPA I. Loan. It is understood and agreed that the obligation under MLPA I this Agreement of FHHLC the Seller to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy, which may be enforced solely remedy against FHHLC and not the Seller, Seller respecting such breach available to the Purchaser on its behalf. The representations and warranties contained in this Agreement shall not be construed as a warranty or guaranty by the Seller as to the future payments by any Mortgagor. It is understood and agreed that the representations and warranties set forth in this Section 4.1 3.1 shall survive the sale of the Mortgage Loans to the Purchaser hereunder, the sale of the Mortgage Loans by the Purchaser to FHASI pursuant to MLPA II and the transfer of the Mortgage Loans by FHASI to the Trust pursuant to the Pooling and Servicing Agreement.
Appears in 2 contracts
Samples: Mortgage Loan Purchase Agreement (First Horizon Asset Securities Inc), Mortgage Loan Purchase Agreement (First Horizon Asset Securities Inc)
Representations and Warranties of the Seller. The Seller represents, warrants and covenants to the Purchaser that as of the Closing Date or as of such date specifically provided herein:
(a) The Seller hereby represents and warrants to the Purchaseris a limited liability company duly organized, as of the date of execution and delivery hereof, that:
(1) The Seller is duly organized as a national banking association and is validly existing and in good standing under the laws of the United States State of America Delaware and has all licenses necessary to carry out its business as now being conducted, and is duly authorized licensed and qualified to transact any business in and all business contemplated by this Agreement to be conducted by is in good standing under the Seller in any laws of each state in which a 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 andand no demand for such licensing or qualification has been made upon such Seller by any such state, and in any event, event such Seller is in compliance with the doing business laws of any such state, state to the extent necessary to ensure its ability to enforce the enforceability of each Mortgage Loan and to perform any the servicing of its other obligations under this Agreement the Mortgage Loans in accordance with the terms thereof.of this Agreement;
(2b) The Seller has the requisite full power and authority and legal right to hold, transfer and convey each Mortgage Loan, to sell each Mortgage Loan, Loan and to execute, deliver and perform, and to enter into and consummate the all transactions contemplated by this Agreement and to conduct its business as presently conducted, has duly authorized by all necessary action on the part of the Seller the execution, delivery and performance of this Agreement; Agreement and any agreements contemplated hereby, has duly executed and delivered this Agreement, assuming and any agreements contemplated hereby, and this Agreement and each Assignment of Mortgage to the due authorization, execution Purchaser and delivery thereof by the other parties theretoany agreements contemplated hereby, constitutes a legal, valid and binding obligation of the Seller, enforceable against the Seller it in accordance with its terms, except that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally or of creditors of depository institutions, the accounts of which are insured all requisite corporate action has been taken by the FDIC, Seller to make this Agreement and all agreements contemplated hereby valid and binding upon the Seller in accordance with their terms;
(bc) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion None of the court before which any proceeding therefor may be brought.
(3) The execution and delivery of this Agreement Agreement, the origination of the Mortgage Loans by the Seller, the sale of the Mortgage Loans by to the Seller under this AgreementPurchaser, the consummation of any other of the transactions contemplated by this Agreementhereby, and or the fulfillment of or compliance with the terms thereof are and conditions of this Agreement will conflict with any of the terms, conditions or provisions of the Seller's charter or by-laws or materially conflict with or result in a material breach of any of the terms, conditions or provisions of any legal restriction or any agreement or instrument to which the Seller is now a party or by which it is bound, or constitute a default or result in an acceleration under any of the foregoing, or result in the material violation of any law, rule, regulation, order, judgment or decree to which the Seller or its property is subject or impair the ability of the Purchaser to realize on the Mortgage Loans or impair the value of the Mortgage Loans;
(d) Each Mortgage Note, each Mortgage, each Assignment of Mortgage and any other documents required pursuant to this Agreement to be delivered to the Purchaser or its designee, or its assignee for each Mortgage Loan, have been, on or before the Closing Date, delivered to the Purchaser or its designee, or its assignee;
(e) There is no litigation, suit, proceeding or investigation pending or threatened, or any order or decree outstanding, with respect to the Seller which is reasonably likely to have a material adverse effect on the sale or servicing of the Mortgage Loans, the execution, delivery, performance or enforceability of this Agreement, or which is reasonably likely to have a material adverse effect on the financial condition of the Seller.;
(f) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Seller of or compliance by the Seller with this Agreement, except for consents, approvals, authorizations and orders which have been obtained;
(g) The consummation of the transactions contemplated by this Agreement is in the ordinary course of business of the Seller Seller, and will not (a) result in a material breach of any term or provision the transfer, assignment and conveyance of the charter or by-laws of Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to bulk transfer or any similar statutory provisions in effect in any applicable jurisdiction;
(bh) materially conflict with, result in a material breach, violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the The Seller is a party or by which it may be bound, or (c) constitute a material violation member of any statute, order or regulation applicable to the Seller of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Seller, other than such conflicts, breaches, violations, accelerations or defaults which, individually or on a cumulative basis, would not have a material adverse effect on the Seller and its subsidiaries, taken as a whole, or the consummation of the transactions contemplated by this Agreement; and the Seller is not MERS in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Seller's ability to perform or meet any of its obligations under this Agreement.good standing;
(4) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller that would prohibit the execution or delivery of, or performance under, this Agreement by the Seller.
(bi) The Seller hereby assigns, transfers and conveys used no adverse selection procedures in selecting from among the outstanding first lien residential mortgage loans owned by it which were available for inclusion in the sale to the Purchaser all of its rights with respect to the Mortgage Loans including, without limitation, the representations and warranties of FHHLC made pursuant to MLPA I, together with all rights of the Purchaser;
(j) The Seller to require FHHLC to cure any breach thereof or to repurchase or substitute for any affected Mortgage Loan in accordance with MLPA I. It is understood and agreed that the obligation under MLPA I of FHHLC to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy, which may be enforced solely against FHHLC and not the Seller, respecting such breach available to the Purchaser on its behalf. The representations and warranties contained in this Agreement shall not be construed as a warranty or guaranty by the Seller as to the future payments by any Mortgagor. It is understood and agreed that the representations and warranties set forth in this Section 4.1 shall survive will treat the sale of the Mortgage Loans to the Purchaser hereunderas a sale for reporting and accounting purposes and, to the extent appropriate, for federal income tax purposes;
(k) The Seller is an approved seller/servicer of residential mortgage loans for FNMA/FHLMC and HUD, with such facilities, procedures and personnel necessary for the sound servicing of such mortgage loans. The Seller is duly qualified, licensed, registered and otherwise authorized under all applicable federal, state and local laws, and regulations, if applicable, meets the minimum capital requirements set forth by the OCC, and is in good standing to sell mortgage loans to and service mortgage loans for FNMA/FHLMC and no event has occurred which would make Seller unable to comply with eligibility requirements or which would require notification to either FNMA or FHLMC;
(l) The Seller 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. 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;
(m) No statement, tape, diskette, form, report or other document prepared by, or on behalf of, Seller pursuant to this Agreement or in connection with the transactions contemplated hereby, contains or will contain any statement that is or will be inaccurate or misleading in any material respect;
(n) The Seller acknowledges and agrees that the Servicing Fee represents reasonable compensation for performing such services and that the entire Servicing Fee shall be treated by the Seller, for accounting and tax purposes, as compensation for the servicing and administration of the Mortgage Loans pursuant to this Agreement; in the opinion of Seller, the consideration received by Seller upon the sale of the Mortgage Loans to Purchaser under this Agreement constitutes fair consideration for the Mortgage Loans under current market conditions;
(o) If requested by the Purchaser, the Seller has delivered to the Purchaser financial statements as to its last two complete fiscal years. All such financial statements fairly present the pertinent results of operations and changes in financial position for each of such periods and the financial position at the end of each such period of the Seller and its subsidiaries and have been prepared in accordance with GAAP consistently applied throughout the periods involved, except as set forth in the notes thereto. There has been no change in the business, operations, financial condition, properties or assets of the Seller since the date of the Seller's financial statements that would have a material adverse effect on its ability to perform its obligations under this Agreement; and
(p) The Seller 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 sale of the Mortgage Loans.
Appears in 2 contracts
Samples: Mortgage Loan Purchase Agreement (Banc of America Funding 2006-5 Trust), Mortgage Loan Purchase Agreement (Banc of America Funding 2006-6 Trust)
Representations and Warranties of the Seller. The Seller represents, warrants and covenants to the Purchaser that as of each Closing Date or as of such date specifically provided herein:
(a) The Seller hereby represents and warrants to the Purchaser, as of the date of execution and delivery hereof, that:
(1) The Seller is duly organized as a national banking association and is organized, validly existing and in good standing under the laws of the United States state of America its formation and has all licenses necessary to carry out its business as now being conducted, and is duly authorized licensed and qualified to transact any business in and all business contemplated by this Agreement to be conducted by is in good standing under the Seller in any laws of each state in which a 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 andand no demand for such licensing or qualification has been made upon such Seller by any such state, and in any event, event such Seller is in compliance with the doing business laws of any such state, state to the extent necessary to ensure its ability to enforce the enforceability of each Mortgage Loan and to perform any the servicing of its other obligations under this Agreement the Mortgage Loans in accordance with the terms thereof.of this Agreement;
(2b) The Seller has the requisite full power and authority and legal right to hold, transfer and convey each Mortgage Loan, to sell each Mortgage Loan, Loan and to execute, deliver and perform, and to enter into and consummate the all transactions contemplated by this Agreement and to conduct its business as presently conducted, has duly authorized by all necessary action on the part of the Seller the execution, delivery and performance of this Agreement; Agreement and any agreements contemplated hereby, has duly executed and delivered this Agreement, assuming and any agreements contemplated hereby, and this Agreement and each Assignment to the due authorization, execution Purchaser and delivery thereof by the other parties theretoany agreement contemplated hereby, constitutes a legal, valid and binding obligation of the Seller, enforceable against the Seller it in accordance with its terms, except that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally or of creditors of depository institutions, the accounts of which are insured all requisite corporate action has been taken by the FDIC, Seller to make this Agreement and all agreements contemplated hereby valid and binding upon the Seller in accordance with their terms;
(bc) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion None of the court before which any proceeding therefor may be brought.
(3) The execution and delivery of this Agreement Agreement, the origination of the Mortgage Loans by the Seller, the sale of the Mortgage Loans by to the Seller under this AgreementPurchaser, the consummation of any other of the transactions contemplated by this Agreementhereby, and or the fulfillment of or compliance with the terms thereof are and conditions of this Agreement will conflict with any of the terms, conditions or provisions of the Seller’s charter or by laws or materially conflict with or result in a material breach of any of the terms, conditions or provisions of any legal restriction or any agreement or instrument to which the Seller is now a party or by which it is bound, or constitute a default or result in an acceleration under any of the foregoing, or result in the material violation of any law, rule, regulation, order, judgment or decree to which the Seller or its property is subject;
(d) There is no litigation, suit, proceeding or investigation pending or, to the Seller’s knowledge, threatened, or any order or decree outstanding, with respect to the Seller which is reasonably likely to have a material adverse effect on the sale of the Mortgage Loans, the execution, delivery, performance or enforceability of this Agreement, or which is reasonably likely to have a material adverse effect on the financial condition of the Seller;
(e) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Seller of or compliance by the Seller with this Agreement, except for consents, approvals, authorizations and orders which have been obtained;
(f) The consummation of the transactions contemplated by this Agreement is in the ordinary course of business of the Seller Seller, and will not (a) result in a material breach of any term or provision the transfer, assignment and conveyance of the charter or by-laws of Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to bulk transfer or (b) materially conflict with, result any similar statutory provisions in a material breach, violation or acceleration of, or result effect in a material default under, the terms of any other material agreement or instrument to which the Seller is a party or by which it may be bound, or (c) constitute a material violation of any statute, order or regulation applicable to the Seller of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Seller, other than such conflicts, breaches, violations, accelerations or defaults which, individually or on a cumulative basis, would not have a material adverse effect on the Seller and its subsidiaries, taken as a whole, or the consummation of the transactions contemplated by this Agreement; and the Seller is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Seller's ability to perform or meet any of its obligations under this Agreement.jurisdiction;
(4) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller that would prohibit the execution or delivery of, or performance under, this Agreement by the Seller.
(bg) The Seller hereby assigns, transfers and conveys to the Purchaser all of its rights with respect to the Mortgage Loans including, without limitation, the representations and warranties of FHHLC made pursuant to MLPA I, together with all rights of the Seller to require FHHLC to cure any breach thereof or to repurchase or substitute for any affected Mortgage Loan in accordance with MLPA I. It is understood and agreed that the obligation under MLPA I of FHHLC to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy, which may be enforced solely against FHHLC and not the Seller, respecting such breach available to the Purchaser on its behalf. The representations and warranties contained in this Agreement shall not be construed as a warranty or guaranty by the Seller as to the future payments by any Mortgagor. It is understood and agreed that the representations and warranties set forth in this Section 4.1 shall survive will treat the sale of the Mortgage Loans to the Purchaser hereunderas a sale for reporting and accounting purposes and, to the extent appropriate, for federal income tax purposes;
(h) Seller is an approved seller/servicer of residential fixed and adjustable rate mortgage loans for FNMA and FHLMC and is a HUD approved mortgage seller/servicer pursuant to Section 203 of the National Housing Act, with such facilities, procedures and personnel necessary for the sound servicing of mortgage loans of the same type as the Mortgage Loans. The Seller is duly qualified, licensed, registered and otherwise authorized under all applicable federal, state and local laws, and regulations, and is in good standing to sell mortgage loans to and service mortgage loans for FNMA and FHLMC and no event has occurred which would make Seller unable to comply with eligibility requirements or which would require notification to either FNMA or FHLMC;
(i) The Seller 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. 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;
(j) No statement, tape, diskette, form, report or other document prepared by, or on behalf of, Seller pursuant to this Agreement or in connection with the transactions contemplated hereby, contains or will contain any statement that is or will be inaccurate or misleading in any material respect;
(k) The Seller acknowledges and agrees that the Servicing Fee represents reasonable compensation for performing such services and that the entire Servicing Fee shall be treated by the Seller, for accounting and tax purposes, as compensation for the servicing and administration of the Mortgage Loans pursuant to this Agreement and the consideration received by the Seller upon the sale of the Mortgage Loans hereunder constitutes fair consideration and reasonably equivalent value for the Mortgage Loans;
(l) The Seller has delivered to the Purchaser financial statements as to its last two complete fiscal years. All such financial statements fairly present the pertinent results of operations and changes in financial position for each of such periods and the financial position at the end of each such period of the Seller and its subsidiaries and have been prepared in accordance with GAAP consistently applied throughout the periods involved, except as set forth in the notes thereto. There has been no change in the business, operations, financial condition, properties or assets of the Seller since the date of the Seller’s financial statements that would have a material adverse effect on its ability to perform its obligations under this Agreement;
(m) Except as disclosed in this Agreement, the Seller 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 sale of the Mortgage Loans pursuant to this Agreement. Seller will pay any commission or compensation to any broker, investment banker, agent or other person who may be entitled thereto in connection with the sale of the Mortgage Loans pursuant to this Agreement. Nothing in this Section 3.01(m) shall prohibit or limit Seller’s use of a mortgage loan broker in connection with the origination of any Mortgage Loan, and Seller has paid any commission or compensation to any mortgage loan broker and/or correspondent lenders who may be entitled thereto in connection with the origination of any Mortgage Loan.
Appears in 2 contracts
Samples: Purchase Agreement (STARM Mortgage Loan Trust 2007-S1), Purchase Agreement (MASTR Asset Securitization Trust 2007-2)
Representations and Warranties of the Seller. (a) The Seller hereby represents represents, warrants and warrants covenants as to the Purchasereach Mortgage Loan sold hereunder, as of the date herein below specified or, if no such date is specified, then as of execution and delivery hereof, the applicable Closing Date that:
(1a) As of the Closing Date, the Seller has good title to, and is the sole owner of, such Mortgage Loan delivered and sold to the Buyer. The assignment of the Mortgage Loan by the Seller validly transfers such Mortgage Loan to the Buyer free and clear of any pledge, lien, equity, charge, claim or security interest, or any other encumbrance. The sale and transfer of each Mortgage Loan to the Buyer do not violate any applicable state laws. To the extent that any applicable state law places any restrictions on the transfer of any Mortgage Loan, the Seller has notified the Buyer in writing of that restriction and any related state licensing or registration requirements.
(b) The Seller origination and servicing of each Mortgage Loan have been in all respects legal, proper, prudent and customary, and have conformed to customary standards of the residential mortgage origination and servicing business.
(c) All parties which have had any interest in the Mortgage Documents, whether as mortgagee, assignee, pledgee or otherwise, are (or, during the period in which they held and disposed of such interest, were)
(i) in compliance with any and all applicable licensing requirements of the laws of the state wherein the Mortgaged Property is duly located, and (ii) organized as a national banking association and is validly existing under the laws of the United States of America and is duly authorized and such state, or qualified to transact do business in such state, or federal savings and Mortgage Loan associations or national banks having principal offices in such state, or not doing business in such state so as to require qualification as a foreign corporation in order to use the courts of such state to enforce the Mortgage Documents.
(d) Except as otherwise disclosed in writing to the Buyer prior to the registration with the Buyer of any and all business contemplated by this Agreement Mortgage Loans, the Seller has not dealt with any broker, investment banker, agent or other person or entity, except for the Buyer, who may be entitled to be conducted by any commission or compensation from the Seller in connection with the sale of any state Mortgage Loans.
(e) Each of the Mortgage Loans delivered and sold to the Buyer has been underwritten in accordance with FNMA, FHLMC, FHA or VA guidelines and/or meets all applicable requirements for sale to the applicable Approved Takeout Investor.
(f) The sale of the Mortgage Loan is not subject to any right of rescission, set-off, counterclaim or defense, including the defense of usury, nor will the operation of any of the terms of this Agreement, or the exercise of any right hereunder, render the sale unenforceable, in whole or in part, or subject to any right of rescission, set off, counterclaim or defense, and no such right of rescission, set off, counterclaim or defense has been asserted with respect thereto.
(g) Each Mortgage Document contains customary and enforceable provisions which render the rights and remedies of the holder adequate to the benefits of the security against the Mortgaged Property, including: (i) in the case of a Mortgaged Property is located or is otherwise not required Mortgage Documents designed as a deed of trust, by trustee's sale, (ii) by summary foreclosure, if available under applicable law law, and (iii) otherwise by foreclosure, and there are no homestead or other exemptions of dower, curtesy or other rights or interests available to effect the Mortgagor or the Mortgagor's spouse, survivors or estate, or any other person or entity that would, or could, interfere with such qualification andright to sell at a trustee's sale or right to foreclose, in any event, is in compliance with the doing business laws except for those arising by operation of any such state, to law. To the extent necessary to ensure its ability to enforce each protect the interests of the holder of the Mortgage Loan Note and to perform any of its other obligations under this Agreement in accordance with the terms thereofMortgage Documents, both spouses shall be signatories on, and jointly and severally liable under, the Mortgage Note and the Mortgage Documents.
(2h) The Seller has the requisite power Such Mortgage Loan is a binding and authority to sell each Mortgage Loan, and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary action on the part of the Seller the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties thereto, constitutes a legal, valid and binding obligation of the SellerMortgagor thereon, in full force and effect and enforceable against the Seller in accordance with its terms, except that (a) the as enforceability thereof may be limited by bankruptcy, insolvency, moratoriumreorganization or other similar terms affecting creditor's rights in general and by general principles of equity;
(i) Such Mortgage Loan is genuine in all respects as appearing on its face and as represented in the books and records of the Seller, receivership and all information set forth therein is true and correct;
(j) Such Mortgage Loan is free of any default (other than as permitted by subparagraph (k) below) of any party thereto (including the Seller), counterclaims, offsets and defenses, including the defense of usury, and from any rescission, cancellation or avoidance, and all right thereof, whether by operation of law or otherwise;
(k) No more than thirty (30) calendar days have elapsed since the date of the Mortgage Note evidencing such Mortgage Loan, and no Monthly Payment is more than thirty (30) calendar days past due;
(l) Such Mortgage Loan contains the entire agreement of the parties thereto with respect to the subject matter thereof, has not been modified or amended in any respect not expressed in writing therein and is free of concessions or understandings with the Mortgagor thereon of any kind not expressed in writing therein;
(m) All advance payments and other similar laws relating to creditors' rights generally deposits on such Mortgage Loan have been paid in cash, and no part of said sums has been loaned, directly or of creditors of depository institutionsindirectly, the accounts of which are insured by the FDICSeller to the Mortgagor, and, other than as disclosed to the Buyer in writing, there have been no prepayments;
(n) Such Mortgage Loan matures within 30 years after such date of origination;
(o) At all times such Mortgage Loan will be free and clear of all Liens, except Liens in favor of the Buyer, Liens that are junior to the Lien created by the Mortgage securing such Mortgage Loan, and (b) the remedy of specific performance and injunctive and any other forms of equitable relief may be subject to equitable defenses and Lien which has been disclosed to the discretion Buyer in writing and is permitted hereunder;
(p) The Mortgaged Property covered by such Mortgage Loan is insured against loss or damage by fire and all other hazards normally included within standard extended coverage in accordance with the provisions of such Mortgage Loan with the court before originator named as a loss payee thereon;
(q) Such Mortgage Loan is secured by a first lien on Mortgaged Property consisting of a completed one-to-eight unit single family residence which is not used for commercial purposes and which is not a construction loan;
(r) There are no delinquent taxes, insurance premiums, water, sewer and municipal charges, governmental assessments or any proceeding therefor may be broughtother outstanding charges affecting the Mortgaged Property.
(3s) The execution Each Mortgage Loan has been closed and delivery fully disbursed and there is no requirement for future advances thereunder, and any and all requirements as to completion of this Agreement any on-site or off-site improvements and as to disbursements of any escrow funds therefor have been complied with.
(t) Additionally, the Seller warrants that the Seller has not made arrangements with any Mortgagor for any payment forbearance or future refinancing with respect to any Mortgage Loan except to the extent provided in the related Mortgage or the Mortgage Note.
(u) With respect to each deed of trust, a trustee duly qualified under applicable law to serve as such is properly named, designated and serving.
(v) Except in connection with a trustee's sale after default by the SellerMortgagor, the sale of the Mortgage Loans no fees or expenses are or will become payable by the Seller or the Buyer to the trustee under this Agreementany deed of trust.
(w) The application for each Mortgage Loan was taken from the Mortgagor and each Mortgage Loan was made in compliance with, and is enforceable under all applicable local, state and federal laws, regulations and orders in all material respects (including, but not limited to, state usury laws, federal Equal Credit Opportunity and Fair Credit Reporting Acts, the consummation Real Estate Settlement Procedures Act, and the federal Truth-in-Lending Act and Regulation Z thereunder), and neither the transfer of any interest in any Mortgage Loan to the Buyer nor any other act provided for in this Agreement will involve the violation of any such law, regulation or order. This warranty is made to the best knowledge of the transactions contemplated Seller with respect to each Mortgage Loan originated by an entity other than the Seller or any of its Affiliates. The Seller further warrants that the funds utilized by the Mortgagor in the purchase of the Mortgaged Property and in obtaining a Mortgage Loan relating thereto were not obtained or in any way related to illegal gambling or to the use of or trafficking in illegal drugs.
(x) A commitment or policy for title insurance, in the form and amount required by this Agreement, and the fulfillment of or compliance with the terms thereof are in the ordinary course of business was effective as of the Seller closing of each Loan, is valid and will not (a) result binding, and remains in a material breach of any term or provision full force and effect. No claims have been made under such title insurance policy and no holder of the charter or by-laws of the Seller or (b) materially conflict withrelated mortgage, result in a material breach, violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Seller is a party or by which it may be bound, or (c) constitute a material violation of any statute, order or regulation applicable to the Seller of any court, regulatory body, administrative agency or governmental body having jurisdiction over including the Seller, other than has done or omitted to do anything which would impair the coverage of such conflictstitle insurance policy.
(y) As to each Mortgage Loan secured by a Mortgaged Property located in Iowa, breachesand if an American Land Title Association (ALTA) policy of title insurance has not been provided, violationsan attorney's certificate, accelerations or defaults which, individually or on a cumulative basis, would not have a material adverse effect on in the Seller form and its subsidiaries, taken as a whole, or the consummation of the transactions contemplated amount required by this Agreement; , duly delivered and effective as of the closing of each such Mortgage Loan, is valid and binding, and remains in full force and effect.
(z) If required by this Agreement, primary mortgage insurance has been obtained, the premium has been paid, and the Seller mortgage insurance coverage is not in breach or violation full force and effect meeting the requirements of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Seller's ability to perform or meet any of its obligations under this Agreement.
(4aa) No litigation The improvements upon the Mortgaged Property are insured against loss by fire and other hazards as required by this Agreement, including flood insurance if required under the National Flood Insurance Act of 1968, as amended. The Mortgage Documents requires the Mortgagor to maintain such casualty insurance at the Mortgagor's cost and expense, and on the Mortgagor's failure to do so, authorizes the holder of the Mortgage Documents to obtain and maintain such insurance at the Mortgagor's cost and expense and to seek reimbursement therefor from the Mortgagor.
(bb) The Mortgaged Property is pending orfree of damage and in good repair, and no notice of condemnation has been given with respect thereto and no circumstances exist involving the Mortgage Documents, the Mortgaged Property or the Mortgagor's credit standing that could: (i) cause investors to regard the Mortgage Loan as an unacceptable investment, (ii) cause the Mortgage Loan to become delinquent, or (iii) adversely affect the value or marketability of the Mortgaged Property or the Mortgage Loan. The Seller warrants that, to the best of the Seller's knowledge, threatened against the Mortgaged Property is free from toxic materials or other environmental hazards. The Seller that would prohibit warrants compliance with local, state or federal laws or regulations designed to protect the execution or delivery of, or performance under, this Agreement by health and safety of the Selleroccupants of the property.
(bcc) The Seller hereby assignsMortgaged Property is lawfully occupied under applicable law and all inspections, transfers licenses and conveys certificates required to be made or issued with respect to all occupied portions of the Purchaser all of its rights Mortgaged Property, or with respect to the Mortgage Loans use and occupancy of the same (including, without limitation, the representations certificates of occupancy and warranties of FHHLC fire underwriting certificates), have been made pursuant to MLPA I, together with all rights of the Seller to require FHHLC to cure any breach thereof or to repurchase or substitute for any affected Mortgage Loan in accordance with MLPA I. It is understood and agreed that the obligation under MLPA I of FHHLC to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy, which may be enforced solely against FHHLC and not the Seller, respecting such breach available to the Purchaser on its behalf. The representations and warranties contained in this Agreement shall not be construed as a warranty or guaranty obtained by the Seller as to from the future payments by any Mortgagor. It is understood and agreed that the representations and warranties set forth in this Section 4.1 shall survive the sale of the Mortgage Loans to the Purchaser hereunderappropriate authorities.
Appears in 2 contracts
Samples: Mortgage Loan Purchase and Sale Agreement (Technical Olympic Usa Inc), Mortgage Loan Purchase and Sale Agreement (Technical Olympic Usa Inc)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Purchaser, Depositor that as of the date of execution and delivery hereof, hereof that:
(1i) The Seller is a Delaware corporation duly organized as a national banking association and is organized, validly existing and in good standing under the laws of the United States of America governing its creation and is duly authorized existence and qualified to transact any and all business contemplated by this Agreement to be conducted by the Seller in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such state, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to perform any of its other obligations under this Agreement in accordance with the terms thereof.
(2) The Seller has the requisite full corporate power and authority to sell each Mortgage Loanown its property, and to execute, deliver and perform, carry on its business as presently conducted and to enter into and consummate perform its obligations under this Agreement;
(ii) The execution and delivery by the Seller of this Agreement have been duly authorized by all necessary corporate action on the part of the Seller; none of the execution and delivery of this Agreement, the consummation of the transactions herein contemplated or compliance with the provisions hereof will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the federal stock charter or bylaws of the Seller;
(iii) The execution, delivery and performance by the Seller of this Agreement and the consummation of the transactions contemplated hereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) This Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Depositor, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its terms except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement and has duly authorized by all necessary action on or (B) with respect to any other matter which in the part judgment of the Seller the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties thereto, constitutes a legal, valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except that (a) the enforceability thereof may will be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating determined adversely to creditors' rights generally or of creditors of depository institutions, the accounts of which are insured by the FDIC, and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
(3) The execution and delivery of this Agreement by the Seller, the sale of the Mortgage Loans by the Seller under this Agreement, the consummation of any other of the transactions contemplated by this Agreement, and the fulfillment of or compliance with the terms thereof are in the ordinary course of business of the Seller and will not (a) result in a material breach of any term or provision of the charter or by-laws of the Seller or (b) materially conflict with, result in a material breach, violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Seller is a party or by which it may be bound, or (c) constitute a material violation of any statute, order or regulation applicable if determined adversely to the Seller of any courtmaterially and adversely affect it or its business, regulatory bodyassets, administrative agency operations or governmental body having jurisdiction over the Sellercondition, other than such conflicts, breaches, violations, accelerations financial or defaults which, individually or on a cumulative basis, would not have a material adverse effect on the Seller and its subsidiaries, taken as a wholeotherwise, or the consummation of the transactions contemplated by this Agreement; and the Seller is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Seller's adversely affect its ability to perform or meet any of its obligations under this Agreement.
(4) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller that would prohibit the execution or delivery of, or performance under, this Agreement by the Seller.
(b) The Seller hereby assigns, transfers representations and conveys to warranties of the Purchaser all of its rights Transferor with respect to the Mortgage Loans includingcontained in the Transfer Agreement were made as of the date of the Transfer Agreement and brought forward to the Closing Date pursuant to the Bring Down Letter. The representations and warranties of the Transferor with respect to the Mortgage Loans contained in the Bring Down Letter are being made as of the Closing Date. To the extent that any fact, without limitationcondition or event with respect to a Mortgage Loan constitutes a breach of both (i) a representation or warranty of the Transferor under the Transfer Agreement or Bring Down Letter and (ii) a representation or warranty of the Sponsor under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Sponsor of such representation and warranty (other than a breach by the Sponsor of the representations and warranties made pursuant to Sections 1.04(b)(vi) and 1.04(b)(vii)) shall be the right to enforce the obligations of the Transferor under any applicable representation or warranty made by it; provided, however, that to the extent the Transferor fails to fulfill its contractual obligations under the Transfer Agreement then the Depositor shall have the right to enforce such obligations of the Transferor against the Sponsor. The representations made by the Sponsor pursuant to Sections 1.04(b)(vi) and 1.04(b)(vii) shall be direct obligations of the Sponsor. The Depositor acknowledges and agrees that the representations and warranties of FHHLC made pursuant to MLPA I, together with all rights of the Seller to require FHHLC to cure any breach thereof or to repurchase or substitute for any affected Mortgage Loan in accordance with MLPA I. It is understood and agreed that the obligation under MLPA I of FHHLC to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy, which may be enforced solely against FHHLC and not the Seller, respecting such breach available to the Purchaser on its behalf. The representations and warranties contained Sponsor in this Agreement shall not be construed as a warranty or guaranty by the Seller as to the future payments by any Mortgagor. It is understood and agreed that Section 1.04(b) (other than the representations and warranties set forth made pursuant to Sections 1.04(b)(vi) and 1.04(b)(vii)) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the Transferor in this Section 4.1 shall survive the sale Transfer Agreement or Bring Down Letter. With respect to a breach by the Transferor of any representation or warranty made by the Transferor in the Transfer Agreement or Bring Down Letter, if the Transferor fulfills its obligations under the provisions of the Transfer Agreement and the Bring Down Letter by substituting for the affected Mortgage Loan a mortgage loan which is not a Replacement Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Mortgage Loans to the Purchaser Depositor hereunder, as to each, that as of June 1, 2006:
(i) The information set forth with respect to the Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Mortgage Loans, and the information with respect to each Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) As of the Closing Date, no Mortgage Loan is in foreclosure;
(iii) As of the Closing Date, each Mortgage Loan is a "qualified mortgage" within the meaning of Section 860G of the Code (as determined without regard to Treas.
Appears in 2 contracts
Samples: Mortgage Loan Sale and Assignment Agreement (Mortgage Loan Asset-Backed Certificates, Series 2006-Rm3), Mortgage Loan Sale and Assignment Agreement (Merrill Lynch Mortgage Investors Trust, Mortgage Loan Asset-Backed Certificates, Series 2006-Fm1)
Representations and Warranties of the Seller. The Seller represents, warrants and covenants to the Purchaser that as of each Closing Date or as of such date specifically provided herein:
(a) The Seller hereby represents and warrants to the Purchaseris a corporation duly organized, as of the date of execution and delivery hereof, that:
(1) The Seller is duly organized as a national banking association and is validly existing and in good standing under the laws of the United States jurisdiction of America its incorporation and has all licenses necessary to carry out its business as now being conducted, and is duly authorized licensed and qualified to transact any business in and all business contemplated by this Agreement to be conducted by is in good standing under the Seller in any laws of each state in which a 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 andand no demand for such licensing or qualification has been made upon the Seller by any such state, and in any event, event the Seller is in compliance with the doing business laws of any such state, state to the extent necessary to ensure its ability to enforce the enforceability of each Mortgage Loan and to perform any the servicing of its other obligations under this Agreement the Mortgage Loans in accordance with the terms thereof.of this Agreement;
(2b) The Seller has the requisite full power and authority and legal right to hold, transfer and convey each Mortgage Loan, to sell each Mortgage Loan, Loan and to execute, deliver and perform, and to enter into and consummate the all transactions contemplated by this Agreement Agreement, the related Purchase Price and Terms Letter and the related Assignment and Conveyance and to conduct its business as presently conducted; the Seller has duly authorized by all necessary action on the part of the Seller the execution, delivery and performance of this Agreement and any agreements contemplated hereby, has duly executed and delivered this Agreement; , the related Purchase Price and Terms Letter and the related Assignment and Conveyance, and any agreements contemplated hereby, and this Agreement, assuming the due authorizationrelated Purchase Price and Terms Letter, execution the related Assignment and delivery thereof by Conveyance and each Assignment of Mortgage to the other parties theretoPurchaser and any agreements contemplated hereby, constitutes a constitute the legal, valid and binding obligation obligations of the Seller, enforceable against the Seller it in accordance with its their respective terms, except that (a) the as such enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership reorganization and other similar laws relating laws, and by equitable principles affecting the enforceability of the rights of creditors; and all requisite corporate action has been taken by the Seller to creditors' rights generally or of creditors of depository institutionsmake this Agreement, the accounts of which are insured by related Purchase Price and Terms Letter, the FDIC, related Assignment and Conveyance and all agreements contemplated hereby valid and binding upon the Seller in accordance with their respective terms;
(bc) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion None of the court before which any proceeding therefor may be brought.
(3) The execution and delivery of this Agreement by Agreement, the Sellerrelated Purchase Price and Terms Letter, the related Assignment and Conveyance, the sale of the Mortgage Loans by to the Seller under Purchaser, the consummation of the transactions contemplated hereby, or the fulfillment of or compliance with the terms and conditions of this Agreement, the consummation related Purchase Price and Terms Letter or the related Assignment and Conveyance will conflict with any of the terms, conditions or provisions of the Seller's charter or by-laws or materially conflict with or result in a material breach of any other of the terms, conditions or provisions of any legal restriction or any material agreement or instrument to which the Seller is now a party or by which it is bound, or constitute a default or result in an acceleration under any of the foregoing, or result in the material violation of any law, rule, regulation, order, judgment or decree to which the Seller or its property is subject;
(d) There is no litigation, suit, proceeding or investigation pending or, to the Seller's knowledge, threatened, or any order or decree outstanding, which is reasonably likely to have a material adverse effect on the sale of the Mortgage Loans, the execution, delivery, performance or enforceability of this Agreement, the related Purchase Price and Terms Letter or the related Assignment and Conveyance, or which is reasonably likely to have a material adverse effect on the financial condition of the Seller;
(e) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Seller of or compliance by the Seller with this Agreement, the related Purchase Price and Terms Letter and the related Assignment and Conveyance, except for consents, approvals, authorizations and orders which have been obtained;
(f) The consummation of the transactions contemplated by this Agreement, the related Purchase Price and Terms Letter and the fulfillment of or compliance with the terms thereof related Assignment and Conveyance are in the ordinary course of business of the Seller Seller, and will not (a) result in a material breach of any term or provision the transfer, assignment and conveyance of the charter or by-laws of Mortgage Notes and the Mortgages by the Seller or (b) materially conflict with, result in a material breach, violation or acceleration of, or result in a material default underpursuant to this Agreement, the terms of any other material agreement or instrument to which the Seller is a party or by which it may be bound, or (c) constitute a material violation of any statute, order or regulation applicable to the Seller of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Seller, other than such conflicts, breaches, violations, accelerations or defaults which, individually or on a cumulative basis, would not have a material adverse effect on the Seller related Purchase Price and its subsidiaries, taken as a whole, or the consummation of the transactions contemplated by this Agreement; Terms Letter and the related Assignment and Conveyance are not subject to bulk transfer or any similar statutory provisions in effect in any applicable jurisdiction;
(g) The Seller is has not used selection procedures that identified the Mortgage Loans as being less desirable or valuable than other comparable mortgage loans in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Seller's ability to perform or meet any of its obligations under this Agreement.portfolio at the Cut-off Date;
(4) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller that would prohibit the execution or delivery of, or performance under, this Agreement by the Seller.
(bh) The Seller hereby assigns, transfers and conveys to the Purchaser all of its rights with respect to the Mortgage Loans including, without limitation, the representations and warranties of FHHLC made pursuant to MLPA I, together with all rights of the Seller to require FHHLC to cure any breach thereof or to repurchase or substitute for any affected Mortgage Loan in accordance with MLPA I. It is understood and agreed that the obligation under MLPA I of FHHLC to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy, which may be enforced solely against FHHLC and not the Seller, respecting such breach available to the Purchaser on its behalf. The representations and warranties contained in this Agreement shall not be construed as a warranty or guaranty by the Seller as to the future payments by any Mortgagor. It is understood and agreed that the representations and warranties set forth in this Section 4.1 shall survive will treat the sale of the Mortgage Loans to the Purchaser hereunderas a sale for reporting and accounting purposes and, to the extent appropriate, for federal income tax purposes;
(i) The Seller is an approved seller/servicer of residential mortgage loans for Fannie Mae or Freddie Mac and HUD, with such facilities, procexxxxx axx persxxxxx xecessary for the sound servicing of such mortgage loans. The Seller 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 event has occurred which woulx xxxx the Selxxx xxxble to comply with eligibility requirements or which would require notification to either Fannie Mae or Freddie Mac;
(j) The Seller does not xxxxxxe, nor dxxx xx 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. 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;
(k) Neither this Agreement nor any information, statement, tape, diskette, form, report, or other document furnished or to be furnished pursuant to this Agreement or any Reconstitution Agreement or in connection with the transactions contemplated hereby (including any Securitization Transfer or Whole Loan Transfer) contains or will contain any untrue statement of fact or omits or will omit to state a fact necessary to make the statements contained herein or therein not misleading;
(l) The Seller acknowledges and agrees that the Interim Servicing Fee represents reasonable compensation for performing such services and that the entire Interim Servicing Fee shall be treated by the Seller, for accounting and tax purposes, as compensation for the interim servicing and administration of the Mortgage Loans pursuant to this Agreement;
(m) The Seller has delivered to the Purchaser financial statements as to its last two complete fiscal years for which financial statements are available. All such financial statements fairly present the pertinent results of operations and changes in financial position for each of such periods and the financial position at the end of each such period of the Seller and its subsidiaries and have been prepared in accordance with GAAP consistently applied throughout the periods involved, except as set forth in the notes thereto. There has been no change in the business, operations, financial condition, properties or assets of the Seller since the date of the Seller's financial statements that would have a material adverse effect on its ability to perform its obligations under this Agreement, the related Purchase Price and Terms Letter or the related Assignment and Conveyance;
(n) The Seller 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 sale of the Mortgage Loans; and
(o) The Seller is a member of MERS in good standing, and will comply in all material respects with the rules and procedures of MERS in connection with the servicing of the MERS Mortgage Loans for as long as such Mortgage Loans are registered with MERS.
Appears in 2 contracts
Samples: Seller's Purchase, Warranties and Interim Servicing Agreement (Morgan Stanley Mortgage Loan Trust 2006-5ar), Seller's Purchase, Warranties and Interim Servicing Agreement (Morgan Stanley Mortgage Loan Trust 2006-6ar)
Representations and Warranties of the Seller. The Seller represents, warrants and covenants to the Purchaser that as of each Closing Date or as of such date specifically provided herein:
(a) The Seller hereby represents and warrants to the Purchaseris a corporation duly organized, as of the date of execution and delivery hereof, that:
(1) The Seller is duly organized as a national banking association and is validly existing and in good standing under the laws of the United States jurisdiction of America its incorporation and has all licenses necessary to carry out its business as now being conducted, and is duly authorized licensed and qualified to transact any business in and all business contemplated by this Agreement to be conducted by is in good standing under the Seller in any laws of each state in which a 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 andand no demand for such licensing or qualification has been made upon the Seller by any such state, and in any event, event the Seller is in compliance with the doing business laws of any such state, state to the extent necessary to ensure its ability to enforce the enforceability of each Mortgage Loan and to perform any the servicing of its other obligations under this Agreement the Mortgage Loans in accordance with the terms thereof.of this Agreement;
(2b) The Seller has the requisite full power and authority and legal right to hold, transfer and convey each Mortgage Loan, to sell each Mortgage Loan, Loan and to execute, deliver and perform, and to enter into and consummate the all transactions contemplated by this Agreement Agreement, the related Purchase Price and Terms Letter and the related Assignment and Conveyance and to conduct its business as presently conducted; the Seller has duly authorized by all necessary action on the part of the Seller the execution, delivery and performance of this Agreement and any agreements contemplated hereby, has duly executed and delivered this Agreement; , the related Purchase Price and Terms Letter and the related Assignment and Conveyance, and any agreements contemplated hereby, and this Agreement, assuming the due authorizationrelated Purchase Price and Terms Letter, execution the related Assignment and delivery thereof by Conveyance and each Assignment of Mortgage to the other parties theretoPurchaser and any agreements contemplated hereby, constitutes a constitute the legal, valid and binding obligation obligations of the Seller, enforceable against the Seller it in accordance with its their respective terms, except that (a) the as such enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership reorganization and other similar laws relating laws, and by equitable principles affecting the enforceability of the rights of creditors; and all requisite corporate action has been taken by the Seller to creditors' rights generally or of creditors of depository institutionsmake this Agreement, the accounts of which are insured by related Purchase Price and Terms Letter, the FDIC, related Assignment and Conveyance and all agreements contemplated hereby valid and binding upon the Seller in accordance with their respective terms;
(bc) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion None of the court before which any proceeding therefor may be brought.
(3) The execution and delivery of this Agreement by Agreement, the Sellerrelated Purchase Price and Terms Letter, the related Assignment and Conveyance, the sale of the Mortgage Loans by to the Seller under Purchaser, the consummation of the transactions contemplated hereby, or the fulfillment of or compliance with the terms and conditions of this Agreement, the consummation related Purchase Price and Terms Letter or the related Assignment and Conveyance will conflict with any of the terms, conditions or provisions of the Seller's charter or by-laws or materially conflict with or result in a material breach of any other of the terms, conditions or provisions of any legal restriction or any material agreement or instrument to which the Seller is now a party or by which it is bound, or constitute a default or result in an acceleration under any of the foregoing, or result in the material violation of any law, rule, regulation, order, judgment or decree to which the Seller or its property is subject;
(d) There is no litigation, suit, proceeding or investigation pending or, to the Seller's knowledge, threatened, or any order or decree outstanding, which is reasonably likely to have a material adverse effect on the sale of the Mortgage Loans, the execution, delivery, performance or enforceability of this Agreement, the related Purchase Price and Terms Letter or the related Assignment and Conveyance, or which is reasonably likely to have a material adverse effect on the financial condition of the Seller;
(e) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Seller of or compliance by the Seller with this Agreement, the related Purchase Price and Terms Letter and the related Assignment and Conveyance, except for consents, approvals, authorizations and orders which have been obtained;
(f) The consummation of the transactions contemplated by this Agreement, the related Purchase Price and Terms Letter and the fulfillment of or compliance with the terms thereof related Assignment and Conveyance are in the ordinary course of business of the Seller Seller, and will not (a) result in a material breach of any term or provision the transfer, assignment and conveyance of the charter or by-laws of Mortgage Notes and the Mortgages by the Seller or (b) materially conflict with, result in a material breach, violation or acceleration of, or result in a material default underpursuant to this Agreement, the terms of any other material agreement or instrument to which the Seller is a party or by which it may be bound, or (c) constitute a material violation of any statute, order or regulation applicable to the Seller of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Seller, other than such conflicts, breaches, violations, accelerations or defaults which, individually or on a cumulative basis, would not have a material adverse effect on the Seller related Purchase Price and its subsidiaries, taken as a whole, or the consummation of the transactions contemplated by this Agreement; Terms Letter and the related Assignment and Conveyance are not subject to bulk transfer or any similar statutory provisions in effect in any applicable jurisdiction;
(g) The Seller is has not used selection procedures that identified the Mortgage Loans as being less desirable or valuable than other comparable mortgage loans in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Seller's ability to perform or meet any of its obligations under this Agreement.portfolio at the Cut-off Date;
(4) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller that would prohibit the execution or delivery of, or performance under, this Agreement by the Seller.
(bh) The Seller hereby assigns, transfers and conveys to the Purchaser all of its rights with respect to the Mortgage Loans including, without limitation, the representations and warranties of FHHLC made pursuant to MLPA I, together with all rights of the Seller to require FHHLC to cure any breach thereof or to repurchase or substitute for any affected Mortgage Loan in accordance with MLPA I. It is understood and agreed that the obligation under MLPA I of FHHLC to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy, which may be enforced solely against FHHLC and not the Seller, respecting such breach available to the Purchaser on its behalf. The representations and warranties contained in this Agreement shall not be construed as a warranty or guaranty by the Seller as to the future payments by any Mortgagor. It is understood and agreed that the representations and warranties set forth in this Section 4.1 shall survive will treat the sale of the Mortgage Loans to the Purchaser hereunderas a sale for reporting and accounting purposes and, to the extent appropriate, for federal income tax purposes;
(i) The Seller is an approved seller/servicer of residential mortgage loans for Fannie Mae or Freddie Mac and HUD, with such facilities, procedures xxx xexxxnnel xxxxxxary for the sound servicing of such mortgage loans. The Seller 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 event has occurred which would makx xxx Seller uxxxxx xo comply with eligibility requirements or which would require notification to either Fannie Mae or Freddie Mac;
(j) The Seller does not bxxxxxx, nor doxx xx xave 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. 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;
(k) Neither this Agreement nor any information, statement, tape, diskette, form, report, or other document furnished or to be furnished pursuant to this Agreement or any Reconstitution Agreement or in connection with the transactions contemplated hereby (including any Securitization Transfer or Whole Loan Transfer) contains or will contain any untrue statement of fact or omits or will omit to state a fact necessary to make the statements contained herein or therein not misleading;
(l) The Seller acknowledges and agrees that the Interim Servicing Fee represents reasonable compensation for performing such services and that the entire Interim Servicing Fee shall be treated by the Seller, for accounting and tax purposes, as compensation for the interim servicing and administration of the Mortgage Loans pursuant to this Agreement;
(m) The Seller has delivered to the Purchaser financial statements as to its last two complete fiscal years for which financial statements are available. All such financial statements fairly present the pertinent results of operations and changes in financial position for each of such periods and the financial position at the end of each such period of the Seller and its subsidiaries and have been prepared in accordance with GAAP consistently applied throughout the periods involved, except as set forth in the notes thereto. There has been no change in the business, operations, financial condition, properties or assets of the Seller since the date of the Seller's financial statements that would have a material adverse effect on its ability to perform its obligations under this Agreement, the related Purchase Price and Terms Letter or the related Assignment and Conveyance;
(n) The Seller 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 sale of the Mortgage Loans; and
(o) The Seller is a member of MERS in good standing, and will comply in all material respects with the rules and procedures of MERS in connection with the servicing of the MERS Mortgage Loans for as long as such Mortgage Loans are registered with MERS.
Appears in 2 contracts
Samples: Seller's Purchase, Warranties and Interim Servicing Agreement (Morgan Stanley Mortgage Loan Trust 2006-8ar), Seller's Purchase, Warranties and Interim Servicing Agreement (Morgan Stanley Mortgage Loan Trust 2006-9ar)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Purchaser, Depositor that as of the date of execution and delivery hereof, hereof that:
(1i) The Seller is a Delaware corporation duly organized as a national banking association and is organized, validly existing and in good standing under the laws of the United States of America governing its creation and is duly authorized existence and qualified to transact any and all business contemplated by this Agreement to be conducted by the Seller in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such state, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to perform any of its other obligations under this Agreement in accordance with the terms thereof.
(2) The Seller has the requisite full corporate power and authority to sell each Mortgage Loanown its property, and to execute, deliver and perform, carry on its business as presently conducted and to enter into and consummate perform its obligations under this Agreement;
(ii) The execution and delivery by the Seller of this Agreement have been duly authorized by all necessary corporate action on the part of the Seller; none of the execution and delivery of this Agreement, the consummation of the transactions herein contemplated or compliance with the provisions hereof will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the federal stock charter or bylaws of the Seller;
(iii) The execution, delivery and performance by the Seller of this Agreement and the consummation of the transactions contemplated hereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) This Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Depositor, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its terms except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement and has duly authorized by all necessary action on or (B) with respect to any other matter which in the part judgment of the Seller the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties thereto, constitutes a legal, valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except that (a) the enforceability thereof may will be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating determined adversely to creditors' rights generally or of creditors of depository institutions, the accounts of which are insured by the FDIC, and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
(3) The execution and delivery of this Agreement by the Seller, the sale of the Mortgage Loans by the Seller under this Agreement, the consummation of any other of the transactions contemplated by this Agreement, and the fulfillment of or compliance with the terms thereof are in the ordinary course of business of the Seller and will not (a) result in a material breach of any term or provision of the charter or by-laws of the Seller or (b) materially conflict with, result in a material breach, violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Seller is a party or by which it may be bound, or (c) constitute a material violation of any statute, order or regulation applicable if determined adversely to the Seller of any courtmaterially and adversely affect it or its business, regulatory bodyassets, administrative agency operations or governmental body having jurisdiction over the Sellercondition, other than such conflicts, breaches, violations, accelerations financial or defaults which, individually or on a cumulative basis, would not have a material adverse effect on the Seller and its subsidiaries, taken as a wholeotherwise, or the consummation of the transactions contemplated by this Agreement; and the Seller is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Seller's adversely affect its ability to perform or meet any of its obligations under this Agreement.
(4) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller that would prohibit the execution or delivery of, or performance under, this Agreement by the Seller.
(b) The Seller hereby assigns, transfers representations and conveys to warranties of the Purchaser all of its rights Transferor with respect to the Mortgage Loans includingcontained in the Transfer Agreement were made as of the date of the Transfer Agreement and the "closing date" (as defined in the Transfer Agreement). To the extent that any fact, without limitationcondition or event with respect to a Mortgage Loan constitutes a breach of both (i) a representation or warranty of the Transferor under the Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than a breach by the Seller of the representations and warranties made pursuant to Sections 1.04(b)(vii) and 1.04(b)(viii) hereof) shall be the right to enforce the obligations of the Transferor under any applicable representation or warranty made by the Transferor; provided, however, that to the extent the Transferor fails to fulfill its contractual obligations under the Transfer Agreement then the Depositor shall have the right to enforce such obligations of the Transferor against the Seller. The representations made by the Seller pursuant to Sections 1.04(b)(vii) and 1.04(b)(viii) hereof shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of FHHLC made pursuant to MLPA I, together with all rights of the Seller to require FHHLC to cure any breach thereof or to repurchase or substitute for any affected Mortgage Loan in accordance with MLPA I. It is understood and agreed that the obligation under MLPA I of FHHLC to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy, which may be enforced solely against FHHLC and not the Seller, respecting such breach available to the Purchaser on its behalf. The representations and warranties contained in this Agreement shall not be construed as a warranty or guaranty by the Seller as to the future payments by any Mortgagor. It is understood and agreed that Section 1.04(b) (other than the representations and warranties set forth made pursuant to Sections 1.04(b)(vii) and 1.04(b)(viii) hereof) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the Transferor in this Section 4.1 shall survive the sale Transfer Agreement. With respect to a breach by the Transferor of any representation or warranty made by the Transferor in the Transfer Agreement, if the Transferor fulfills its obligations under the provisions of the Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Replacement Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Mortgage Loans to the Purchaser Depositor hereunder, as to each, that as of January 1, 2007 (unless otherwise specified):
(i) The information set forth with respect to the Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Mortgage Loans, and the information with respect to each Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) As of the Closing Date, no Mortgage Loan is in foreclosure;
(iii) As of the Closing Date, each Mortgage Loan is a "qualified mortgage" within the meaning of Section 860G of the Code (as determined without regard to Treas.
Appears in 2 contracts
Samples: Mortgage Loan Sale and Assignment Agreement (First Franklin Mortgage Loan Trust, Series 2007-Ffa), Mortgage Loan Sale and Assignment Agreement (First Franklin Mortgage Loan Trust, Series 2007-Ff1)
Representations and Warranties of the Seller. The Seller represents and warrants as follows:
(a) The Seller hereby represents and warrants to the Purchaseris a corporation duly incorporated, as of the date of execution and delivery hereof, that:
(1) The Seller is duly organized as a national banking association and is validly existing and in good standing under the laws of the United States State of America Delaware and is duly authorized and qualified to transact any do business, and all is in good standing, in every jurisdiction where the nature of its business contemplated by this Agreement requires it to be conducted by the Seller in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such state, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to perform any of its other obligations under this Agreement in accordance with the terms thereof.
(2) The Seller has the requisite power and authority to sell each Mortgage Loan, and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary action on the part of the Seller the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties thereto, constitutes a legal, valid and binding obligation of the Seller, enforceable against the Seller in accordance with its termsso qualified, except that (a) where the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating failure to creditors' rights generally or of creditors of depository institutions, the accounts of which are insured by the FDIC, and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
(3) The execution and delivery of this Agreement by the Seller, the sale of the Mortgage Loans by the Seller under this Agreement, the consummation of any other of the transactions contemplated by this Agreement, and the fulfillment of or compliance with the terms thereof are in the ordinary course of business of the Seller and will not (a) result in a material breach of any term or provision of the charter or by-laws of the Seller or (b) materially conflict with, result in a material breach, violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Seller is a party or by which it may be bound, or (c) constitute a material violation of any statute, order or regulation applicable to the Seller of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Seller, other than such conflicts, breaches, violations, accelerations or defaults which, individually or on a cumulative basis, so qualify would not have a material adverse effect on the Seller.
(b) The execution, delivery and performance by the Seller of this Agreement and all other instruments and documents to be delivered hereunder, the transactions contemplated hereby and thereby, and the Seller's use of the proceeds of Purchases, are within the Seller's corporate powers, have been duly authorized by all necessary corporate action, do not contravene (i) the Seller's charter or by-laws or (ii) law or any contractual restriction binding on or affecting the Seller and do not result in or require the creation of any lien, security interest or other charge or encumbrance upon or with respect to any of its subsidiariesmaterial properties, taken other than as a whole, or the consummation result of the transactions contemplated by this Agreement; and no transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Seller of this Agreement or any other document or instrument to be delivered hereunder EXCEPT for the filing of the UCC Financing Statements referred to in Article III, all of which, at the time required in Article III, shall have been duly made and shall be in full force and effect.
(d) This Agreement is, and the Certificate when delivered hereunder will be, the legal, valid and binding obligation of the Seller enforceable against the Seller in accordance with its terms except to the extent that the enforceability thereof is not limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally and by equitable principles (regardless of whether enforcement is sought in breach equity or violation at law).
(i) The Consolidated balance sheet of the Seller and its Subsidiaries as at December 31, 1992, and the related Consolidated statement of income and cash flows of the Seller and its Subsidiaries for the fiscal year then ended, accompanied by an opinion of Ernst & Young, independent public accountants, copies of which have been furnished to the Agent, fairly present, the Consolidated financial condition of the Seller and its Subsidiaries as at such dates and the Consolidated results of the operations of the Seller and its Subsidiaries for the periods ended on such dates, all in accordance with generally accepted accounting principles applied on a consistent basis, and (ii) since December 31, 1992, there has been no material adverse change in any such condition or operations.
(f) There are no actions, suits or proceedings pending, or to the knowledge of the Seller threatened, against or affecting the Seller or any Subsidiary, or the property of the Seller or of any material indenture or other material agreement or instrumentsubsidiary, or in violation of any statute, order or regulation of any court, regulatory or before any arbitrator of any kind, or before or by any governmental body, administrative agency or governmental body having jurisdiction over it which breach or violation which, taking into account its probability of success, may materially impair adversely affect the Seller's financial condition of the Seller or the Seller and its Consolidated Subsidiaries taken as a whole or materially adversely affect the ability of the Seller to perform or meet any of its obligations under this Agreement; neither the Seller nor any Subsidiary is in default with respect to any order of any court, arbitrator or governmental body except for defaults with respect to orders of governmental agencies which defaults are not material to the business or operations of the Seller or any Subsidiary.
(4g) No litigation is pending or, to the best proceeds of the Seller's knowledge, threatened against any Purchase or reinvestment will be used by the Seller that would prohibit to acquire any equity security (other than the execution or delivery of, or performance under, this Agreement by the Seller.
(b) The Seller hereby assigns, transfers and conveys to the Purchaser all of its rights with respect to the Mortgage Loans including, without limitation, the representations and warranties of FHHLC made pursuant to MLPA I, together with all rights Common Stock of the Seller to require FHHLC the extent permitted under Section 5.02(g) of the Credit Agreement) of a class that is registered pursuant to cure Section 12 of the Securities Exchange Act of 1934.
(h) Each Pool Receivable is (i) together with the Contract related thereto owned by the Seller free and clear of any breach thereof Adverse Claim except as provided for herein and (ii) an Eligible Receivable; upon each Purchase or reinvestment, the Owner making such Purchase or reinvestment will acquire a valid and perfected first priority undivided percentage ownership interest to repurchase the extent of the pertinent Eligible Asset in each Pool Receivable then existing or substitute for thereafter arising and in the Related Security and Collections with respect thereto free and clear of any affected Mortgage Loan Adverse Claim except as provided hereunder; and no effective financing statement or other instrument similar in effect covering any Contract or any Pool Receivable or the Related Security or Collections with respect thereto is on file in any recording office except such as may be filed in favor of CNAI, as Agent, in accordance with MLPA I. It is understood and agreed that the obligation under MLPA I of FHHLC to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy, which may be enforced solely against FHHLC and not this Agreement.
(i) Each Seller Report (if prepared by the Seller, respecting such breach available or to the Purchaser on its behalf. The representations and warranties extent that information contained in this Agreement shall not be construed as a warranty therein is supplied by the Seller), information, exhibit, financial statement, document, book, record or guaranty report furnished at any time by the Seller as to the future payments by Agent or any Mortgagor. It Owner in connection with this Agreement is understood and agreed that accurate in all material respects as of its date or (except as otherwise disclosed to the representations and warranties set forth in this Section 4.1 shall survive Agent or such Owner, as the sale case may be, at such time) as of the Mortgage Loans date so furnished, and no such document contains any material misstatement of fact or omits to state a material fact or any fact necessary to make the statements contained therein not materially misleading.
(j) The chief executive office of the Seller is located at the address of the Seller referred to in Section 11.02 hereof and the chief place of business and the offices where the Seller keeps all its books, records and documents evidencing Pool Receivables or the related Contracts are located at the address specified in Schedule IV hereto (or at such other locations, notified to the Purchaser hereunderAgent in accordance with Section 5.01(f), in jurisdictions where all action required by Section 6.05 has been taken and completed).
(k) The names and addresses of all the Lock-Box Banks, together with the account numbers of the Lock-Box Accounts of the Seller at such Lock-Box Banks, are specified in Schedule I hereto (or at such other Lock-Box Banks and/or with such other Lock-Box Accounts as have been notified to the Agent in accordance with Section 5.03(d)).
Appears in 1 contract
Samples: Trade Receivables Purchase and Sale Agreement (Geon Co)
Representations and Warranties of the Seller. The Seller represents, warrants and covenants to the Purchaser that as of the Closing Date or as of such date specifically provided herein:
(a) The Seller hereby represents and warrants to the Purchaseris a corporation duly organized, as of the date of execution and delivery hereof, that:
(1) The Seller is duly organized as a national banking association and is validly existing and in good standing under the laws of the United States State of America New Jersey and has all licenses necessary to carry out its business as now being conducted, and is duly authorized licensed and qualified to transact any business in and all business contemplated by this Agreement to be conducted by is in good standing under the Seller in any laws of each state in which a 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 andand no demand for such licensing or qualification has been made upon such Seller by any such state, and in any event, event such Seller is in compliance with the doing business laws of any such state, state to the extent necessary to ensure its ability to enforce the enforceability of each Mortgage Loan and to perform any the servicing of its other obligations under this Agreement the Mortgage Loans in accordance with the terms thereof.of this Agreement;
(2b) The Seller has the requisite full power and authority and legal right to hold, transfer and convey each Mortgage Loan, to sell each Mortgage Loan, Loan and to execute, deliver and perform, and to enter into and consummate the all transactions contemplated by this Agreement and to conduct its business as presently conducted, has duly authorized by all necessary action on the part of the Seller the execution, delivery and performance of this Agreement; Agreement and any agreements contemplated hereby, has duly executed and delivered this Agreement, assuming and any agreements contemplated hereby, and this Agreement and each Assignment of Mortgage to the due authorization, execution Purchaser and delivery thereof by the other parties theretoany agreements contemplated hereby, constitutes a legal, valid and binding obligation of the Seller, enforceable against the Seller it in accordance with its terms, except that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally or of creditors of depository institutions, the accounts of which are insured all requisite corporate action has been taken by the FDIC, Seller to make this Agreement and all agreements contemplated hereby valid and binding upon the Seller in accordance with their terms;
(bc) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion None of the court before which any proceeding therefor may be brought.
(3) The execution and delivery of this Agreement Agreement, the origination of the Mortgage Loans by the Seller, the sale of the Mortgage Loans by to the Seller under this AgreementPurchaser, the consummation of any other of the transactions contemplated by this Agreementhereby, and or the fulfillment of or compliance with the terms thereof are and conditions of this Agreement will conflict with any of the terms, conditions or provisions of the Seller's charter or by-laws or materially conflict with or result in a material breach of any of the terms, conditions or provisions of any legal restriction or any agreement or instrument to which the Seller is now a party or by which it is bound, or constitute a default or result in an acceleration under any of the foregoing, or result in the material violation of any law, rule, regulation, order, judgment or decree to which the Seller or its property is subject or impair the ability of the Purchaser to realize on the Mortgage Loans or impair the value of the Mortgage Loans;
(d) Each Mortgage Note, each Mortgage, each Assignment of Mortgage and any other documents required pursuant to this Agreement to be delivered to the Purchaser or its designee, or its assignee for each Mortgage Loan, have been, on or before the Closing Date, delivered to the Purchaser or its designee, or its assignee;
(e) There is no litigation, suit, proceeding or investigation pending or threatened, or any order or decree outstanding, with respect to the Seller which is reasonably likely to have a material adverse effect on the sale or servicing of the Mortgage Loans, the execution, delivery, performance or enforceability of this Agreement, or which is reasonably likely to have a material adverse effect on the financial condition of the Seller.
(f) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Seller of or compliance by the Seller with this Agreement, except for consents, approvals, authorizations and orders which have been obtained;
(g) The consummation of the transactions contemplated by this Agreement is in the ordinary course of business of the Seller Seller, and will not (a) result in a material breach of any term or provision the transfer, assignment and conveyance of the charter or by-laws of Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to bulk transfer or any similar statutory provisions in effect in any applicable jurisdiction;
(bh) materially conflict withThe origination and servicing practices used by the Seller, result any originator and Prior Servicers, with respect to each Mortgage Note and Mortgage have been legal and in a accordance with applicable laws and regulations, and in all material breachrespects proper and prudent in the mortgage origination and servicing business. With respect to escrow deposits and payments that the Seller is entitled to collect, violation or acceleration all such payments are in the possession of, or result in a material default underunder the control of, the terms of any other material agreement or instrument to which the Seller is a party or by which it may be bound, or (c) constitute a material violation of any statute, order or regulation applicable to the Seller of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Seller, and there exist no deficiencies in connection therewith for which customary arrangements for repayment thereof have not been made. All escrow payments have been collected in full compliance with state and federal law and the provisions of the related Mortgage Note and Mortgage. 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 than such conflicts, breaches, violations, accelerations charges or defaults which, individually or on a cumulative basis, would not payments due under the Mortgage Note have a material adverse effect on the Seller and its subsidiaries, taken as a whole, been capitalized under any Mortgage or the consummation of the transactions contemplated by this Agreement; and the Seller is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Seller's ability to perform or meet any of its obligations under this Agreement.related Mortgage Note;
(4) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller that would prohibit the execution or delivery of, or performance under, this Agreement by the Seller.
(bi) The Seller hereby assigns, transfers and conveys used no adverse selection procedures in selecting from among the outstanding first lien residential mortgage loans owned by it which were available for inclusion in the sale to the Purchaser all of its rights with respect to the Mortgage Loans including, without limitation, the representations and warranties of FHHLC made pursuant to MLPA I, together with all rights of the Purchaser;
(j) The Seller to require FHHLC to cure any breach thereof or to repurchase or substitute for any affected Mortgage Loan in accordance with MLPA I. It is understood and agreed that the obligation under MLPA I of FHHLC to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy, which may be enforced solely against FHHLC and not the Seller, respecting such breach available to the Purchaser on its behalf. The representations and warranties contained in this Agreement shall not be construed as a warranty or guaranty by the Seller as to the future payments by any Mortgagor. It is understood and agreed that the representations and warranties set forth in this Section 4.1 shall survive will treat the sale of the Mortgage Loans to the Purchaser hereunderas a sale for reporting and accounting purposes and, to the extent appropriate, for federal income tax purposes;
(k) Seller is an approved seller/servicer of residential mortgage loans for FNMA/FHLMC and HUD, with such facilities, procedures and personnel necessary for the sound servicing of such mortgage loans. The Seller is duly qualified, licensed, registered and otherwise authorized under all applicable federal, state and local laws, and regulations, if applicable, meets the minimum capital requirements set forth by the OCC, and is in good standing to sell mortgage loans to and service mortgage loans for FNMA/FHLMC and no event has occurred which would make Seller unable to comply with eligibility requirements or which would require notification to either FNMA or FHLMC;
(l) The Seller 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. 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;
(m) No statement, tape, diskette, form, report or other document prepared by, or on behalf of, Seller pursuant to this Agreement or in connection with the transactions contemplated hereby, contains or will contain any statement that is or will be inaccurate or misleading in any material respect;
(n) The Seller acknowledges and agrees that the Servicing Fee represents reasonable compensation for performing such services and that the entire Servicing Fee shall be treated by the Seller, for accounting and tax purposes, as compensation for the servicing and administration of the Mortgage Loans pursuant to this Agreement; in the opinion of Seller, the consideration received by Seller upon the sale of the Mortgage Loans to Purchaser under this Agreement constitutes fair consideration for the Mortgage Loans under current market conditions.
(o) The Seller has delivered to the Purchaser financial statements as to its last two complete fiscal years. All such financial statements fairly present the pertinent results of operations and changes in financial position for each of such periods and the financial position at the end of each such period of the Seller and its subsidiaries and have been prepared in accordance with generally accepted accounting principals consistently applied throughout the periods involved, except as set forth in the notes thereto. There has been no change in the business, operations, financial condition, properties or assets of the Seller since the date of the Seller's financial statements that would have a material adverse effect on its ability to perform its obligations under this Agreement;
(p) The Seller 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 sale of the Mortgage Loans.
Appears in 1 contract
Samples: Servicing Agreement (Structured Asset Securities Corp)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Purchaser, Purchaser that as of the Closing Date and as of each date of execution and delivery hereof, thatthereafter on which the Master Repurchase Agreement is in effect:
(1i) The Seller is duly organized as a national banking association and is organized, validly existing and in good standing under the laws of the United States of America TEXAS and is duly authorized and qualified to transact any business in and all business contemplated by this Agreement to be conducted by is in good standing under the Seller in any laws of each state in which where a Mortgaged Property is located or is otherwise exempt under applicable law from such qualification or is otherwise not required under applicable law to effect such qualification; no demand for such qualification and, has been made upon the Seller by any state having jurisdiction; and in any event, event the Seller is or will be in compliance with the doing business laws of any such state, state to the extent necessary to ensure its ability to enforce insure the enforceability of each Mortgage Loan and to perform any the servicing of its other obligations under this Agreement the Mortgage Loans in accordance with the terms thereof.of the Servicing Agreement;
(2ii) The Seller has the requisite full power and authority to sell hold each Mortgage Loan, to sell each Mortgage Loan and to execute, deliver and perform, and to enter into and consummate the consummate, all transactions contemplated by this Agreement and each Related Document. The Seller has duly authorized by all necessary action on the part of the Seller the execution, delivery and performance of this Agreement; Agreement and the Related Documents, has duly executed and delivered this Agreement, and this Agreement and the Related Documents, assuming the due authorization, execution and delivery thereof by the other parties thereto, Initial Purchaser each constitutes a legal, valid and binding obligation of the Seller, enforceable against the Seller it in accordance with its terms, except that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally or of creditors of depository institutions, the accounts of which are insured by the FDIC, and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.;
(3iii) The Neither the execution and delivery of this Agreement and the Related Documents, the acquisition or origination of the Mortgage Loans by the Seller, the sale of the Mortgage Loans by to the Seller under this AgreementInitial Purchaser, the consummation of any other of the transactions contemplated by this Agreementhereby, and nor the fulfillment of or compliance with the terms thereof and conditions of this Agreement and the Related Documents, will conflict with or result in a breach of any of the terms, conditions or provisions of the Seller's charter or by-laws or any legal restriction or any agreement or instrument to which the Seller is now a party or by which it is bound, or constitute a default or result in an acceleration under any of the foregoing, or result in the violation of any law, rule, regulation, order, judgment or decree to which the Seller or its property is subject;
(iv) There is no litigation pending or, to the Seller's knowledge, threatened, which if determined adversely to the Seller would adversely affect the sale of the Mortgage Loans to the initial Purchaser, the execution, delivery or enforceability of this Agreement or any Related Document, or the ability of the Seller to service the Mortgage Loans or which would have a material adverse effect on the financial condition of the Seller;
(v) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Seller of or compliance by the Seller with this Agreement and the Related Documents, the delivery of the Mortgage Files to the Purchaser for the benefit of the Purchaser, the sale of the Mortgage Loans to the Initial Purchaser or the consummation of the transactions contemplated by this Agreement and the Related Documents;
(vi) The consummation of the transactions contemplated by this Agreement and the Related Documents are in the ordinary course of business of the Seller Seller, and will not (a) result in a material breach of any term or provision the transfer, assignment and conveyance of the charter or by-laws of the Seller or (b) materially conflict with, result in a material breach, violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Seller is a party or by which it may be bound, or (c) constitute a material violation of any statute, order or regulation applicable to the Seller of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Seller, other than such conflicts, breaches, violations, accelerations or defaults which, individually or on a cumulative basis, would not have a material adverse effect on the Seller and its subsidiaries, taken as a whole, or the consummation of the transactions contemplated by this Agreement; Mortgage Notes and the Seller is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Seller's ability to perform or meet any of its obligations under this Agreement.
(4) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller that would prohibit the execution or delivery of, or performance under, this Agreement by the Seller.
(b) The Seller hereby assigns, transfers and conveys to the Purchaser all of its rights with respect to the Mortgage Loans including, without limitation, the representations and warranties of FHHLC made pursuant to MLPA I, together with all rights of the Seller to require FHHLC to cure any breach thereof or to repurchase or substitute for any affected Mortgage Loan in accordance with MLPA I. It is understood and agreed that the obligation under MLPA I of FHHLC to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy, which may be enforced solely against FHHLC and not the Seller, respecting such breach available to the Purchaser on its behalf. The representations and warranties contained in this Agreement shall not be construed as a warranty or guaranty Mortgages by the Seller as contemplated by this Agreement and the Related Documents are not subject to the future payments by bulk transfer or any Mortgagor. It is understood and agreed that similar statutory provisions in effect in any applicable jurisdiction;
(vii) The Seller used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding home mortgage loans in the Seller's portfolio at the Closing Date as to which the representations and warranties set forth in Section 2.02 could be made and had outstanding principal balances on the Cut-off Date of at least $10,000;
(viii) The Seller has good and marketable title to, and is the sole owner of, the Mortgage Loan, free and clear of any lien, charge or encumbrance or any ownership or participation interest in favor of any other person, and the mortgage note has not been assigned, pledged, hypothecated or otherwise transferred to any person; and
(ix) Neither this Section 4.1 shall survive the sale Agreement nor any statement, report or other document prepared and furnished by or on behalf of the Mortgage Loans Seller pursuant to this Agreement or any Related Document or in connection with the Purchaser hereundertransactions contemplated hereby contains any untrue statement of fact or omits to state a fact necessary to make the statements contained therein not misleading.
Appears in 1 contract
Samples: Master Repurchase Agreement (Starnet Financial Inc)
Representations and Warranties of the Seller. The Seller represents and warrants as follows:
(a) The Seller hereby represents and warrants to the Purchaseris a corporation duly incorporated, as of the date of execution and delivery hereof, that:
(1) The Seller is duly organized as a national banking association and is validly existing and in good standing under the laws of the United States of America Massachusetts and is duly authorized and qualified to transact any do business, and all business contemplated by this Agreement is in good standing, in every other jurisdiction in which the failure to be conducted so qualified could reasonably be expected to have a Material Adverse Effect.
(b) The execution, delivery and performance by the Seller in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such state, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to perform any of its other obligations under this Agreement in accordance with the terms thereof.
(2) The Seller has the requisite power and authority to sell each Mortgage Loan, and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has all other documents to be delivered by it hereunder, including the Seller's use of the proceeds of purchases and reinvestments, are within the Seller's corporate powers, have been duly authorized by all necessary action corporate action, do not contravene (i) the Seller's charter or by-laws, (ii) any law, rule or regulation applicable to the Seller, (iii) any contractual restriction binding on or affecting the part Seller or its property or (iv) any order, writ, judgment, award, injunction or decree binding on or affecting the Seller or its property, and do not result in or require the creation of any lien, security interest or other charge or encumbrance upon or with respect to any of its properties (other than in favor of the Seller Agent for the benefit of the Owners with respect to the Receivables and the Related Security and Collections associated therewith); and no transaction contemplated hereby requires compliance with any bulk sales act or similar law. The Agreement has been duly executed and delivered by the Seller.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Seller of this Agreement; Agreement or any other document or instrument to be delivered hereunder, except for the filing of the UCC financing statements described in Schedule I.
(d) This Agreement and this Agreement, assuming each other document or instrument delivered by it hereunder constitutes the due authorization, execution and delivery thereof by the other parties thereto, constitutes a legal, valid and binding obligation of the Seller, Seller enforceable against the Seller in accordance with its terms, except that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally or of creditors of depository institutions, the accounts of which are insured by the FDIC, and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
(3e) The execution and delivery consolidated balance sheets of this Agreement by the Seller, the sale each of the Mortgage Loans by Parent and the Seller under this Agreementas at December 31, the consummation of any other of the transactions contemplated by this Agreement1995, and the fulfillment related statements of or compliance with income, shareholders' equity and cash flows for the terms thereof are in fiscal year then ended, copies of which have been furnished to the ordinary course Agent, fairly present the consolidated financial condition of business the Parent and Seller and their consolidated subsidiaries as at such date and the consolidated results of the operations of the Parent, the Seller and will not (a) result their consolidated subsidiaries for the period ended on such date, all in a material breach of accordance with GAAP, since December 31, 1995, and except as disclosed in the Public Disclosure Documents, there has been no change in any term such condition or provision of the charter or by-laws of the Seller or (b) materially conflict with, result in a material breach, violation or acceleration ofoperations which has had, or result could reasonably be expected to have, a Material Adverse Effect. Since December 31, 1995, and except as disclosed in a material default underthe Public Disclosure Documents, the terms of there has been no change in any other material agreement such condition or instrument to which the Seller is a party or by which it may be boundoperations that has had, or (c) constitute a material violation of any statutereasonably could be expected to have, order or regulation applicable to the Seller of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Seller, other than such conflicts, breaches, violations, accelerations or defaults which, individually or on a cumulative basis, would not have a material adverse effect on the operations or financial condition of the Parent.
(f) Except as disclosed in the Public Disclosure Documents, (i) there is no pending or threatened action or proceeding affecting the Parent, the Seller and its subsidiariesor any of their subsidiaries before any court, taken as a wholegovernmental agency or arbitrator that has had, or the consummation reasonably could be expected to have, a Material Adverse Effect, (ii) none of the transactions contemplated by this Agreement; and Parent, the Seller nor any of their subsidiaries is not in breach or violation of default with respect to any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency arbitrator or governmental body having jurisdiction over it except for defaults with respect to orders of governmental agencies which breach defaults are not material to the business or violation may materially impair operations of the Seller's ability Seller or any subsidiary and have not had (and cannot reasonably be expected to perform have) a Material Adverse Effect, and (iii) no other condition exists that has caused, or meet could reasonably be expected to cause, a Material Adverse Effect. Except as disclosed in the Public Disclosure Documents, (i) there is no pending or threatened action or proceeding affecting the Parent or any of its obligations under subsidiaries before any court, governmental agency or arbitrator that has had, or could reasonably be expected to have, a Material Parent Effect, and (ii) neither the Parent nor any of its subsidiaries is in default with respect to any order of any court, arbitrator or governmental body except for defaults with respect to orders of governmental agencies which defaults are not material to the business or operations of the Parent or any subsidiary and has not had (and cannot reasonably be expected to have) a Material Parent Effect.
(g) No proceeds of any purchase of Percentage Interests will be used by the Seller to acquire any security in any transaction which is subject to Section 13 or 14 of the Securities Exchange Act of 1934, as amended.
(h) Each Receivable, together with any contract related thereto, and the Collateral shall, at all times, be owned by the Seller free and clear of any Adverse Claim except as created by this Agreement, and upon each purchase and reinvestment, the Owner making such purchase or reinvestment, as the case may be, shall acquire a valid and perfected first priority undivided percentage ownership interest to the extent of the pertinent Percentage Interest in each Receivable then existing or thereafter arising and in the Related Security (other than Security Deposits) and Collections with respect thereto, free and clear of any Adverse Claim except as provided hereunder. No effective financing statement or other instrument similar in effect covering any Receivable, the Related Security, the Collections or the Collateral with respect thereto shall at any time be on file in any recording office except such as may be filed in favor of the Purchaser relating to this Agreement.
(4i) No litigation is pending or, At all times on or prior to the best of Termination Date, the Seller's knowledge, threatened against the Seller that would prohibit the execution Coverage Ratio shall equal or delivery of, or performance under, this Agreement by the Sellerexceed 102%.
(bj) No Investor Report, information, exhibit, financial statement, document, book, record or report furnished or to be furnished by the Seller or the Servicer to the Agent or any Owner in connection with this Agreement is or will be inaccurate in any material respect as of the date it is or shall be dated or (except as otherwise disclosed to the Agent or such Owner, as the case may be, at such time) as of the date so furnished, and no such document contains or will contain any material misstatement of fact or omits or shall omit to state a material fact or any fact necessary to make the statements contained therein not misleading. Any Receivable described as an Eligible Receivable in any Investor Report or such other information, exhibit, financial statement, document, book, record or report satisfies the requirements of the definition of "Eligible Receivable." The Seller hereby assigns, transfers and conveys the Servicer have management information systems that are adequate to the Purchaser all of its rights generate reliable statistical information with respect to the Mortgage Loans includingReceivables, without limitation, the representations and warranties of FHHLC made including such information as is required to be delivered pursuant to MLPA I, together with all rights the terms of this Agreement.
(k) The principal place of business and chief executive office of the Seller and the offices where the Seller keeps all of the Records are located at the addresses specified in Schedule IV (or at such other locations as to require FHHLC which the notice and other requirements specified in Section 6.09 shall have been satisfied). The Seller has places of business in more than one town in Massachusetts.
(l) Obligors have been (or, in the case of Obligors on Unbilled Receivables, will be) instructed to cure make all payments in respect of Receivables to the Seller's post office box in Hartford, Connecticut, and such payments are (i) processed by the Servicer in Wethersfield, Connecticut and (ii) deposited to the Collection Account within one Business Day of the Servicer's receipt thereof. No funds other than Collections are or will be deposited to the Collection Account, provided that the location of such post office box and/or such processing, and the identity of the Collection Account may be changed with the consent of the Agent, upon 30 days' prior written notice to the Agent, if (i) the requirements of Section 6.09 are satisfied, (ii) the Collection Account continues to be a single-purpose account into which Collections (and no other funds) are deposited, (iii) the Collection Account continues to be in the name of the Purchaser, and under the exclusive ownership and control of the Purchaser, and (iv) the bank at which the Collection Account is maintained shall have received, executed and returned a Bank Notice.
(m) All Obligors (other than Obligors in respect of Unbilled Receivables) are listed on the General Trial Balance. The Seller's methodology for determining the Outstanding Balance of Unbilled Receivables is accurately described in Exhibit B, and such description does not omit any breach thereof or fact necessary to repurchase or substitute for any affected Mortgage Loan make the statements contained therein not misleading. The Outstanding Balance of Unbilled Receivables shall be calculated in accordance with MLPA I. It is understood and agreed that the obligation under MLPA I of FHHLC to curemethodology described in Exhibit B.
(n) Except as described in Schedule III, repurchase the Seller has no trade names, fictitious names, assumed names or replace any Mortgage Loan as "doing business as" names other than those names with respect to which a breach it has occurred satisfied its obligations under Section 6.09.
(o) The Seller has assets which are greater than the amount of its liabilities, and is continuing shall constitute the sole remedy, which may be enforced solely against FHHLC and not the Seller, respecting such breach available able to the Purchaser on pay its behalf. debts as they become due.
(p) The representations and warranties contained in this Agreement shall not be construed as a warranty or guaranty by the Seller as to the future payments by any Mortgagor. It is understood and agreed that the representations and warranties set forth in this Section 4.1 shall survive the sale terms of the Mortgage Loans Receivables have not been extended or modified, except as permitted under the Credit and Collection Policy.
(q) The Credit and Collection Policy has not been materially changed in any way which might reasonably lead to the Purchaser hereundera Material Adverse Effect.
Appears in 1 contract
Samples: Receivables Purchase and Sale Agreement (North Atlantic Energy Corp /Nh)
Representations and Warranties of the Seller. The Seller represents, warrants and covenants to the Purchaser that as of the Closing Date or as of such date specifically provided herein:
(a) The Seller hereby represents and warrants to the Purchaseris a corporation duly organized, as of the date of execution and delivery hereof, that:
(1) The Seller is duly organized as a national banking association and is validly existing and in good standing under the laws of the United States Commonwealth of America Pennsylvania and is duly authorized and qualified to transact any and all business contemplated by this Agreement to or will be conducted by in compliance with the Seller in any laws of each state in which a any Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such state, to the extent necessary to ensure its ability to enforce the enforceability of each Mortgage Loan and to perform any of its other obligations under this Agreement in accordance with the terms thereof.Loan;
(2b) The Seller has the requisite power and authority to sell each Mortgage Loanmake, and to execute, deliver and perform, perform its obligations under this Agreement and to enter into and consummate all of the transactions contemplated by under this Agreement Agreement, and has duly authorized by taken all necessary corporate action on the part of the Seller to authorize the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties thereto, Agreement constitutes a legal, valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except that (a) the as enforceability thereof may be limited by applicable bankruptcy, insolvency, moratoriumreorganization, receivership and moratorium or other similar laws relating to now or hereafter in effect affecting the enforcement of creditors' rights generally or of creditors of depository institutions, the accounts of which are insured by the FDIC, in general and (b) the remedy of specific performance and injunctive and other forms of equitable relief except as such enforceability may be subject limited by general principles of equity (whether considered in a proceeding at law or in equity) or by public policy with respect to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.indemnification under applicable securities laws;
(3c) The execution and delivery of this Agreement by the Seller, the sale of the Mortgage Loans by the Seller under this Agreement, the consummation of any other of the transactions contemplated by this Agreement, and the fulfillment of or its performance and compliance with the terms thereof are in the ordinary course of business of the Seller and this Agreement will not (a) result in violate the Seller's Certificate of Incorporation or Bylaws or constitute a material breach default (or an event which, with notice or lapse of any term time, or provision of the charter or by-laws of the Seller or (b) materially conflict withboth, result in would constitute a material breach, violation or acceleration ofdefault) under, or result in a the material default underbreach of, the terms of any other material contract, agreement or other instrument to which the Seller is a party or by which it may be bound, or (c) constitute a material violation of any statute, order or regulation applicable to the Seller or any of its assets;
(d) No litigation before any court, regulatory body, administrative agency tribunal or governmental body having jurisdiction over is currently pending, nor to the knowledge of the Seller is threatened against the Seller, other than nor is there any such conflictslitigation currently pending, breaches, violations, accelerations or defaults which, individually or on nor to the knowledge of the Seller threatened against the Seller with respect to this Agreement that in the opinion of the Seller has a cumulative basis, would not have reasonable likelihood of resulting in a material adverse effect on the transactions contemplated by this Agreement;
(e) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Seller and its subsidiariesof or compliance by the Seller with this Agreement, taken as a whole, the sale of the Mortgage Loans or the consummation of the transactions contemplated by this Agreement; Agreement except for consents, approvals, authorizations and the Seller is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it orders which breach or violation may materially impair the Seller's ability to perform or meet any of its obligations under this Agreement.have been obtained;
(4f) No litigation The consummation of the transactions contemplated by this Agreement is pending or, to in the best ordinary course of business of the Seller's knowledge, threatened against and the Seller that would prohibit transfer, assignment and conveyance of the execution or delivery of, or performance under, this Agreement by Mortgage Notes and the Seller.
(b) The Seller hereby assigns, transfers and conveys to the Purchaser all of its rights with respect Mortgages relating to the Mortgage Loans including, without limitation, the representations and warranties of FHHLC made pursuant to MLPA I, together with all rights of the Seller to require FHHLC to cure any breach thereof or to repurchase or substitute for any affected Mortgage Loan in accordance with MLPA I. It is understood and agreed that the obligation under MLPA I of FHHLC to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy, which may be enforced solely against FHHLC and not the Seller, respecting such breach available to the Purchaser on its behalf. The representations and warranties contained in this Agreement shall not be construed as a warranty or guaranty by the Seller as pursuant to this Agreement are not subject to bulk transfer or any similar statutory provisions in effect in any applicable jurisdiction;
(g) The Seller did not select such Mortgage Loans in a manner that it reasonably believed was adverse to the future payments by any Mortgagor. It is understood and agreed that interests of the representations and warranties set forth in this Section 4.1 shall survive Purchaser based on the Seller's portfolio of conventional non-conforming Mortgage Loans;
(h) The Seller will treat the sale of the Mortgage Loans to the Purchaser hereunderas a sale for reporting and accounting purposes and, to the extent appropriate, for federal income tax purposes;
(i) The Seller is an approved seller/servicer of residential mortgage loans for Xxxxxx Xxx and Xxxxxxx Mac. The Seller is in good standing to sell mortgage loans to and service mortgage loans for Xxxxxx Mae and Xxxxxxx Mac and no event has occurred which would make the Seller unable to comply with eligibility requirements or which would require notification to either Xxxxxx Mae or Xxxxxxx Mac; and
(j) No written statement, report or other document furnished or to be furnished pursuant to the Agreement contains or will contain any statement that is or will be inaccurate or misleading in any material respect.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Residential Asset Mortgage Products Inc)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to each Purchaser and the Purchaser, as of Administrative Agent on the date of execution each Purchase and delivery hereof, thaton the date of each reinvestment as follows:
(1a) The Seller and each Seller Subsidiary is a corporation duly organized as a national banking association and is incorporated, validly existing and in good standing under the laws of the United States its state of America incorporation, and is duly authorized and qualified to transact any do business, and all is in good standing, in every jurisdiction where the nature of its business contemplated by this Agreement or the ownership of its properties requires it to be conducted so qualified except where the failure to be so qualified has no reasonable likelihood of having a material adverse effect on (i) its business or properties, (ii) the ability of the Seller to perform its obligations hereunder or under any Transfer Agreement or the Secondary Purchase Agreement, (iii) the ability of such Seller Subsidiary to perform its obligations under the Transfer Agreement or the Consent and Acknowledgment to which it is a party, or (iv) the collectibility of the Pool Receivables generally or any significant portion of the Pool Receivables. As of the date hereof, the Seller owns directly or indirectly at least such percentage of the issued and outstanding common stock of each Seller Subsidiary as set forth on Schedule VI hereto.
(b) The execution, delivery and performance by the Seller in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification andof this Agreement, in any eventeach Certificate, is in compliance with the doing business laws of any such stateeach Transfer Agreement, to the extent necessary to ensure its ability to enforce each Mortgage Loan Consent and to perform any of its other obligations under this Agreement in accordance with the terms thereof.
(2) The Seller has the requisite power and authority to sell each Mortgage LoanAcknowledgement, and each Lock-Box Agreement to execute, deliver and performwhich it is a party, and to enter into and consummate by each Seller Subsidiary of the transactions contemplated by this Transfer Agreement, each Lock-Box Agreement and has the Consent and Acknowledgement to which it is a party, and all of the other documents to which it is a party to be delivered hereunder, and the Seller's use of the proceeds of purchases and reinvestments, are within its corporate powers, have been duly authorized by all necessary action corporate action, do not contravene or violate (i) its certificate of incorporation or articles of incorporation or by-laws; (ii) any law, rule or regulation applicable to it except for such laws, rules or regulations (A) the contravention of which has no reasonable likelihood of having a material adverse effect on (1) its business or properties, (m) the part ability of the Seller to perform its obligations hereunder or under any Transfer Agreement or the Secondary Purchase Agreement, or (n) the ability of the Seller Subsidiary to perform its obligations under the Transfer Agreement or the Consent and Acknowledgment to which it is a party, or (o) the collectibility of the Pool Receivables generally or any significant portion of the Pool Receivables, or (B) as may restrict or limit the assignment of Receivables of Government Obligors or Foreign Obligors; (iii) any restrictions under any agreement, contract or instrument to which it is a party or by which it or any of its property is bound except for such restrictions, (A) the contravention of which has no reasonable likelihood of having a material adverse effect on (1) its business or properties, (m) the ability of the Seller to perform its obligations hereunder or under any Transfer Agreement or the Secondary Purchase Agreement, (n) the ability of such Seller Subsidiary to perform its obligations under the Transfer Agreement or the Consent and Acknowledgment to which it is a party, or (o) the collectibility of the Pool Receivables generally or any significant portion of the Pool Receivables, or (B) as may restrict or limit the assignment of Receivables of any Government Obligor or Foreign Obligor; or (iv) any order, writ, judgment, award, injunction or decree binding on or affecting it or its property, except such order, writ, judgment, award, injunction or decree the contravention of which has no reasonable likelihood of having a material adverse effect on (1) its business or properties, (m) the ability of the Seller to perform its obligations hereunder or under any Transfer Agreement or the Secondary Purchase Agreement, (n) the ability of such Seller Subsidiary to perform its obligations under the Transfer Agreement or the Consent and Acknowledgment to which it is a party, or (o) the collectibility of the Pool Receivables generally or any significant portion of the Pool Receivables, and will not result in or require the creation of any lien, security interest or other charge or encumbrance upon or with respect to any of its properties, except as contemplated by this Agreement, the Secondary Purchase Agreement and the Transfer Agreements; and no transaction contemplated hereby requires compliance with any bulk sales act or similar law. This Agreement, each Certificate, each Transfer Agreement, each Consent and Acknowledgement and each Lock-Box Agreement to which the Seller is a party have been duly executed and delivered by the Seller, and each Transfer Agreement, each Certificate, each Lock-Box Agreement and each Consent and Acknowledgement to which a Seller Subsidiary is a party has been duly executed and delivered by such Seller Subsidiary.
(c) Other than the filings of the financing statements under the UCC of the jurisdictions that the Purchasers or the Administrative Agent deem necessary, all of which, on or prior to the date of the initial Purchase hereunder, will have been duly made and be in full force and effect, and other than such filings, registrations and notices as may be required under applicable law with respect to the assignment of Receivables of Government Obligors and Foreign Obligors, no authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Seller of this Agreement; , the Certificates, the Transfer Agreements or any other document to be delivered hereunder to which the Seller is a party or by any Seller Subsidiary of the Transfer Agreement or Consent and Acknowledgment to which it is a party.
(d) Each of this Agreement, assuming each Certificate, each Transfer Agreement, and each Lock-Box Agreement to which the due authorization, execution and delivery thereof by Seller is a party constitutes the other parties thereto, constitutes a legal, valid and binding obligation of the Seller, Seller enforceable against the Seller in accordance with its terms, except that (a) the enforceability thereof as such enforcement may be limited by applicable bankruptcy, insolvency, moratorium, receivership and reorganization or other similar laws relating to or limiting creditors' rights generally or generally. Each Transfer Agreement, each Consent and Acknowledgement and each Lock-Box Agreement to which a Seller Subsidiary is a party constitutes the legal, valid and binding obligation of creditors of depository institutionssuch Seller Subsidiary, the accounts of which are insured by the FDICenforceable against such Seller Subsidiary in accordance with its terms, and (b) the remedy of specific performance and injunctive and other forms of equitable relief except as such enforcement may be subject limited by applicable bankruptcy, insolvency, reorganization or other similar laws relating to equitable defenses and to the discretion of the court before which any proceeding therefor may be broughtor limiting creditors' rights generally.
(3e) The execution and delivery of this Agreement by the Seller, the sale unaudited consolidated financial statements of the Mortgage Loans Seller and its subsidiaries as of March 31, 1990, copies of which have been furnished to the Purchasers, fairly present the financial condition of the Seller and its subsidiaries as of such date and the consolidated results of their operations for the period ended on such date, and have been prepared in accordance with generally accepted accounting principles consistently applied in all material respects by the Seller and its subsidiaries throughout the period involved, except as set forth in the notes thereto and there has been no material adverse change in such financial position or operations as they existed as of such date.
(f) There is no pending or, to the knowledge of the Seller after due inquiry, threatened action or proceeding against the Seller or any Seller Subsidiary or any of their respective subsidiaries or properties before any court, governmental agency or arbitrator that has a reasonable likelihood of having a material adverse effect on (i) the financial condition or operations of the Seller and its subsidiaries considered on a consolidated basis as each existed as of March 31, 1990 or (ii) the ability of the Seller to perform its obligations under this Agreement, the consummation Certificates, or any Transfer Agreement or (iii) the ability of a Seller Subsidiary to perform its obligations under the Transfer Agreement or the Consent and Acknowledgment to which such Seller Subsidiary is a party, or (iv) the legality, validity or enforceability of this Agreement, any Transfer Agreement or any Lock-Box Agreement relating to a Lock- Box Account into which a significant portion of Collections are deposited, or (v) any Purchaser's interest in the Pool Receivables generally or in any significant portion of the Pool Receivables, the Related Security or the Collections with respect thereto, or (vi) the collectibility of the Pool Receivables generally or of any other significant portion of the transactions Pool Receivables.
(g) No proceeds of any purchase or reinvestment will be used (i) for a purpose which violates, or would be incohsistent with regulations G, T, U or X promulgated by the Board of Governors of the Federal Reserve System from time to time or (ii) to acquire any security (other than the capital stock of Great Northern Nekoosa Corporation) in any transaction which is subject to Section 13 and 14 of the Securities Exchange Act of 1934, as amended.
(h) Immediately prior to a Purchase hereunder, the Seller shall be the legal and beneficial owner of the Pool Receivables and Related Security with respect thereto (except with respect to Related Security and with respect to Receivables of Government Obligors and Foreign Obligors transferred by the Seller Subsidiaries, the transfer of which may be limited by applicable law), free and clear of any Adverse Claim, except as created by this Agreement and the Secondary Purchase Agreement and the documents entered into in connection herewith and therewith. This Agreement is effective to, and shall, upon each purchase or reinvestment, transfer to each Purchaser (and each Purchaser shall acquire from the Seller) a valid and perfected first priority undivided percentage ownership interest to the extent of such Purchaser's Receivable Interest in each Pool Receivable existing or hereafter arising and in the Related Security and Collections with respect thereto, except as may be limited by applicable law with respect to the Related Security and with respect to Receivables of Government Obligors and Foreign Obligors, free and clear of any Adverse Claim, except as created by this Agreement and the Secondary Purchase Agreement and the documents entered into in connection herewith and therewith. No effective financing statement or other instrument similar in effect covering any Contract or any Pool Receivable or the Related Security or Collections with respect thereto is on file in any recording office, except those filed in favor of the Administrative Agent pursuant to this Agreement and the Secondary Purchase Agreement and, with respect to the Receivables created by a Seller Subsidiary, those filed in favor of the Seller pursuant to a Transfer Agreement.
(i) Prior to a transfer pursuant to a Transfer Agreement, each Seller Subsidiary shall be the legal and beneficial owner of the Receivables and the Related Security sold to the Seller pursuant to such Transfer Agreement free and clear of any Adverse Claim. Each Transfer Agreement is effective to, and shall, upon the creation of a Receivable owing to the Seller Subsidiary party to such Transfer Agreement, transfer to the Seller (and the Seller shall acquire) from such Seller Subsidiary all right, title and interest of such Seller Subsidiary in each such Receivable and in the Related Security and Collections with respect thereto, except as may be limited by applicable law with respect to the Related Security and with respect to Receivables of Government Obligors and Foreign Obligors, free and clear of any Adverse Claim, except as contemplated by this Agreement and the Secondary Purchase Agreement.
(j) Each Investor Report (if prepared by the Seller or one of its Affiliates, or to the extent that information contained therein is supplied by the Seller or an Affiliate), information, exhibit, financial statement, document, book, record or report (other than projections prepared in good faith) furnished or to be furnished at any time by a Responsible Officer of the Seller or a Seller Subsidiary to the Administrative Agent or the Purchasers in connection with this Agreement was, is, or will be accurate in all material respects as of its date or (except as otherwise disclosed to the Administrative Agent or the Purchasers, as the case may be, at such time) as of the date so furnished, and no such document contains or will contain any untrue statement of a material fact or omits or will omit to state a material fact necessary in order to make the fulfillment statements contained therein, in light of or compliance with the terms thereof are in the ordinary course circumstances under which they were made, not misleading.
(k) The principal places of business and chief executive offices of the Seller and will not (a) result in a material breach of any term or provision the Seller Subsidiaries, are, as of the charter or bydate hereof, located at the addresses referred to in Section 12.02 and on Schedule V hereof, respectively.
(1) The names and addresses of all Lock-laws Box Banks, Depositary Banks and Concentration Banks, together with the account numbers of the Lock-Box Accounts, the Depositary Accounts and the Concentration Accounts of the Seller or (b) materially conflict with, result in a material breach, violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Seller is a party or by which it may be bound, or (c) constitute a material violation of any statute, order or regulation applicable to the Seller of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Seller, other than such conflicts, breaches, violations, accelerations or defaults which, individually or on a cumulative basis, would not have a material adverse effect on the Seller and its subsidiaries, taken as a whole, or the consummation of the transactions contemplated by this Agreement; and the Seller is not Subsidiaries at such Lock-Box Banks, such Depositary Banks and such Concentration Banks, are, as of the date hereof, specified in breach Schedule I hereto, Schedule II hereto and Schedule III hereto, respectively (or violation of any material indenture at such other Lock-Box Banks, Depositary Banks or Concentration Banks and/or with such other material agreement Lock-Box Accounts, Depositary Accounts or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Seller's ability to perform or meet any of its obligations under this Agreement.
(4) No litigation is pending or, Concentration Accounts as have been notified to the best of Administrative Agent and the Seller's knowledge, threatened against the Seller that would prohibit the execution or delivery of, or performance under, this Agreement by the Seller.
(b) The Seller hereby assigns, transfers and conveys to the Purchaser all of its rights with respect to the Mortgage Loans including, without limitation, the representations and warranties of FHHLC made pursuant to MLPA I, together with all rights of the Seller to require FHHLC to cure any breach thereof or to repurchase or substitute for any affected Mortgage Loan Purchasers in writing in accordance with MLPA I. It is understood and agreed that the obligation under MLPA I of FHHLC to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy, which may be enforced solely against FHHLC and not the Seller, respecting such breach available to the Purchaser on its behalf. The representations and warranties contained in this Agreement shall not be construed as a warranty or guaranty by the Seller as to the future payments by any Mortgagor. It is understood and agreed that the representations and warranties set forth in this Section 4.1 shall survive the sale of the Mortgage Loans to the Purchaser hereunderherewith).
Appears in 1 contract
Samples: Receivables Purchase Agreement (Georgia Pacific Corp)
Representations and Warranties of the Seller. The Seller represents, warrants and covenants to the Purchaser that as of each Closing Date or as of such date specifically provided herein:
(a) The Seller hereby represents and warrants to the Purchaseris a corporation duly organized, as of the date of execution and delivery hereof, that:
(1) The Seller is duly organized as a national banking association and is validly existing and in good standing under the laws of the United States jurisdiction of America its incorporation and has all licenses necessary to carry out its business as now being conducted, and is duly authorized licensed and qualified to transact any business in and all business contemplated by this Agreement to be conducted by is in good standing under the Seller in any laws of each state in which a 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 andand no demand for such licensing or qualification has been made upon the Seller by any such state, and in any event, event the Seller is in compliance with the doing business laws of any such state, state to the extent necessary to ensure its ability to enforce the enforceability of each Mortgage Loan and to perform any the servicing of its other obligations under this Agreement the Mortgage Loans in accordance with the terms thereof.of this Agreement;
(2b) The Seller has the requisite full power and authority and legal right to hold, transfer and convey each Mortgage Loan, to sell each Mortgage Loan, Loan and to execute, deliver and perform, and to enter into and consummate the all transactions contemplated by this Agreement Agreement, the related Purchase Price and Terms Letter and the related Assignment and Conveyance and to conduct its business as presently conducted; the Seller has duly authorized by all necessary action on the part of the Seller the execution, delivery and performance of this Agreement and any agreements contemplated hereby, has duly executed and delivered this Agreement; , the related Purchase Price and Terms Letter and the related Assignment and Conveyance, and any agreements contemplated hereby, and this Agreement, assuming the due authorizationrelated Purchase Price and Terms Letter, execution the related Assignment and delivery thereof by Conveyance and each Assignment of Mortgage to the other parties theretoPurchaser and any agreements contemplated hereby, constitutes a constitute the legal, valid and binding obligation obligations of the Seller, enforceable against the Seller it in accordance with its their respective terms, except that (a) the as such enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership reorganization and other similar laws relating laws, and by equitable principles affecting the enforceability of the rights of creditors; and all requisite corporate action has been taken by the Seller to creditors' rights generally or of creditors of depository institutionsmake this Agreement, the accounts of which are insured by related Purchase Price and Terms Letter, the FDIC, related Assignment and Conveyance and all agreements contemplated hereby valid and binding upon the Seller in accordance with their respective terms;
(bc) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion None of the court before which any proceeding therefor may be brought.
(3) The execution and delivery of this Agreement by Agreement, the Sellerrelated Purchase Price and Terms Letter, the related Assignment and Conveyance, the sale of the Mortgage Loans by to the Seller under Purchaser, the consummation of the transactions contemplated hereby, or the fulfillment of or compliance with the terms and conditions of this Agreement, the consummation related Purchase Price and Terms Letter or the related Assignment and Conveyance will conflict with any of the terms, conditions or provisions of the Seller’s charter or by-laws or materially conflict with or result in a material breach of any other of the terms, conditions or provisions of any legal restriction or any material agreement or instrument to which the Seller is now a party or by which it is bound, or constitute a default or result in an acceleration under any of the foregoing, or result in the material violation of any law, rule, regulation, order, judgment or decree to which the Seller or its property is subject;
(d) There is no litigation, suit, proceeding or investigation pending or, to the Seller’s knowledge, threatened, or any order or decree outstanding, which is reasonably likely to have a material adverse effect on the sale of the Mortgage Loans, the execution, delivery, performance or enforceability of this Agreement, the related Purchase Price and Terms Letter or the related Assignment and Conveyance, or which is reasonably likely to have a material adverse effect on the financial condition of the Seller;
(e) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Seller of or compliance by the Seller with this Agreement, the related Purchase Price and Terms Letter and the related Assignment and Conveyance, except for consents, approvals, authorizations and orders which have been obtained;
(f) The consummation of the transactions contemplated by this Agreement, the related Purchase Price and Terms Letter and the fulfillment of or compliance with the terms thereof related Assignment and Conveyance are in the ordinary course of business of the Seller Seller, and will not (a) result in a material breach of any term or provision the transfer, assignment and conveyance of the charter or by-laws of Mortgage Notes and the Mortgages by the Seller or (b) materially conflict with, result in a material breach, violation or acceleration of, or result in a material default underpursuant to this Agreement, the terms of any other material agreement or instrument to which the Seller is a party or by which it may be bound, or (c) constitute a material violation of any statute, order or regulation applicable to the Seller of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Seller, other than such conflicts, breaches, violations, accelerations or defaults which, individually or on a cumulative basis, would not have a material adverse effect on the Seller related Purchase Price and its subsidiaries, taken as a whole, or the consummation of the transactions contemplated by this Agreement; Terms Letter and the Seller is related Assignment and Conveyance are not subject to bulk transfer or any similar statutory provisions in breach or violation of effect in any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Seller's ability to perform or meet any of its obligations under this Agreement.applicable jurisdiction;
(4) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller that would prohibit the execution or delivery of, or performance under, this Agreement by the Seller.
(bg) The Seller hereby assigns, transfers and conveys to the Purchaser all of its rights with respect to has not used selection procedures that identified the Mortgage Loans including, without limitation, the representations and warranties of FHHLC made pursuant to MLPA I, together with all rights of the Seller to require FHHLC to cure any breach thereof as being less desirable or to repurchase or substitute for any affected Mortgage Loan valuable than other comparable mortgage loans in accordance with MLPA I. It is understood and agreed that the obligation under MLPA I of FHHLC to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy, which may be enforced solely against FHHLC and not the Seller, respecting such breach available to ’s portfolio at the Purchaser on its behalf. Cut-off Date;
(h) The representations and warranties contained in this Agreement shall not be construed as a warranty or guaranty by the Seller as to the future payments by any Mortgagor. It is understood and agreed that the representations and warranties set forth in this Section 4.1 shall survive will treat the sale of the Mortgage Loans to the Purchaser hereunderas a sale for reporting and accounting purposes and, to the extent appropriate, for federal income tax purposes;
(i) The Seller is an approved seller/servicer of residential mortgage loans for Fxxxxx Mae or Fxxxxxx Mac and HUD, with such facilities, procedures and personnel necessary for the sound servicing of such mortgage loans. The Seller 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 Fxxxxx Mae or Fxxxxxx Mac and no event has occurred which would make the Seller unable to comply with eligibility requirements or which would require notification to either Fxxxxx Mae or Fxxxxxx Mac;
(j) The Seller 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. 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;
(k) No statement, tape, diskette, form, report or other document prepared by, or on behalf of, the Seller pursuant to this Agreement, the related Purchase Price and Terms Letter or in connection with the transactions contemplated hereby, contains or will contain any statement that is or will be inaccurate or misleading in any material respect;
(l) The Seller acknowledges and agrees that the Servicing Fee represents reasonable compensation for performing such services and that the entire Servicing Fee shall be treated by the Seller, for accounting and tax purposes, as compensation for the servicing and administration of the Mortgage Loans pursuant to this Agreement;
(m) The Seller has delivered to the Purchaser financial statements as to its last two complete fiscal years for which financial statements are available. All such financial statements fairly present the pertinent results of operations and changes in financial position for each of such periods and the financial position at the end of each such period of the Seller and its subsidiaries and have been prepared in accordance with GAAP consistently applied throughout the periods involved, except as set forth in the notes thereto. There has been no change in the business, operations, financial condition, properties or assets of the Seller since the date of the Seller’s financial statements that would have a material adverse effect on its ability to perform its obligations under this Agreement, the related Purchase Price and Terms Letter or the related Assignment and Conveyance;
(n) The Seller 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 sale of the Mortgage Loans; and
(o) The Seller is a member of MERS in good standing, and will comply in all material respects with the rules and procedures of MERS in connection with the servicing of the MERS Mortgage Loans for as long as such Mortgage Loans are registered with MERS.
Appears in 1 contract
Samples: Seller’s Purchase, Warranties and Servicing Agreement (Prime Mortgage Trust 2007-1)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Purchaser, Depositor that as of the date of execution and delivery hereof, thatClosing Date:
(1i) The the Seller is a corporation duly organized as a national banking association and is organized, validly existing and in good standing under the laws of the United States of America governing its creation and is duly authorized existence and qualified to transact any and all business contemplated by this Agreement to be conducted by the Seller in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such state, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to perform any of its other obligations under this Agreement in accordance with the terms thereof.
(2) The Seller has the requisite full corporate power and authority to sell each Mortgage Loanown its property, carry on its business as presently conducted and to execute, deliver and perform, and to enter into and consummate perform its obligations under the transactions contemplated Assignment Agreements and this Agreement;
(ii) the execution and delivery by the Seller of the Assignment Agreements and this Agreement and has have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and delivery of the Assignment Agreements or this Agreement, nor the consummation of the transactions therein or herein contemplated, nor compliance with the provisions thereof or hereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) the execution, delivery and performance by the Seller of this Agreement; the Assignment Agreements and this AgreementAgreement and the consummation of the transactions contemplated thereby and hereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) each of the Assignment Agreements and this Agreement has been duly executed and delivered by the Seller and, assuming the due authorization, execution and delivery thereof by the other parties theretoBank, in the case of the Assignment Agreements, and the Depositor, in the case of this Agreement, constitutes a legal, valid and binding obligation of the Seller, Seller enforceable against the Seller it in accordance with its respective terms, except that (a) the as such enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership subject to (A) applicable bankruptcy and insolvency laws and other similar laws relating to creditors' affecting the enforcement of the rights generally or of creditors of depository institutions, the accounts of which are insured by the FDIC, generally and (bB) the remedy general principles of specific performance and injunctive and other forms equity regardless of equitable relief may be subject to equitable defenses and whether such enforcement is considered in a proceeding in equity or at law; and
(v) there are no actions, suits or proceedings pending or, to the discretion knowledge of the court before which any proceeding therefor may be brought.
(3) The execution and delivery of this Agreement by the Seller, threatened or likely to be asserted against or affecting the sale of the Mortgage Loans Seller, before or by the Seller under this Agreementany court, the consummation of administrative agency, arbitrator or governmental body (A) with respect to any other of the transactions contemplated by the Assignment Agreements or this Agreement, and the fulfillment of Agreement or compliance (B) with the terms thereof are respect to any other matter which in the ordinary course judgment of business of the Seller will be determined adversely to the Seller and will not (a) result in a material breach of any term or provision of the charter or by-laws of if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under the Assignment Agreements or this Agreement.
(b) materially conflict withThe Seller represents and warrants upon delivery of the Mortgage Loans to the Depositor hereunder, result as to each, that, as of the Closing Date:
(i) The information set forth with respect to the Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Mortgage Loans, and the information with respect to each Mortgage Loan on the Mortgage Loan Schedule is true and correct in a all material breach, violation respects at the date or acceleration of, or result dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in a material default under, payment) in complying with the terms of any other material agreement or instrument to which Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be insured by a generally acceptable insurer against loss by fire, hazards of extended coverage and such other hazards as are customary in the area where the related Mortgaged Property is a party or by which it may be bound, or (c) constitute a material violation of any statute, order or regulation applicable located pursuant to insurance policies conforming to the Seller requirements of any courtthe guidelines of Xxxxxx Mae or Xxxxxxx Mac. If upon origination of the Mortgage Loan, regulatory bodythe Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available), administrative agency or governmental body having jurisdiction over a flood insurance policy meeting the Sellerrequirements of the current guidelines of the Federal Flood Insurance Administration is in effect, other than such conflictswhich policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related Mortgagor thereunder to maintain the hazard insurance policy at the Mortgagor’s cost and expense, breaches, violations, accelerations or defaults which, individually or on a cumulative basis, would not have a material adverse effect and on the Seller Mortgagor’s failure to do so, authorizes the holder of the Mortgage to obtain and its subsidiariesmaintain such insurance at such Mortgagor’s cost and expense, taken as and to seek reimbursement therefor from the Mortgagor. Where required by state law or regulation, each Mortgagor has been given an opportunity to choose the carrier of the required hazard insurance, provided the policy is not a whole“master” or “blanket” hazard insurance policy covering the common facilities of a planned unit development. The hazard insurance policy is the valid and binding obligation of the insurer, or is in full force and effect, and will be in full force and effect and inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement; ;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Seller is Mortgaged Property has not been released from the lien of the Mortgage, in breach or violation of any material indenture or other material agreement or instrument, whole or in violation part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) In the case of approximately 98.01% and 1.99% of the Mortgage Loans (by Scheduled Principal Balance as of the Cut-off Date), the related Mortgage evidences a valid, subsisting, enforceable and perfected first lien or second lien, respectively, on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) the first Mortgage, in the case of a Mortgaged Property that is secured by a perfected second lien, (2) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, order (3) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or regulation attorney’s opinion of any courttitle and abstract of title delivered to the originator of such Mortgage Loan, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Seller's ability to perform or meet any of its obligations under this Agreement.
and (4) No litigation is pending orsuch other matters to which like properties are commonly subject which do not, to individually or in the best aggregate, materially interfere with the benefits of the Seller's knowledge, threatened against the Seller that would prohibit the execution or delivery of, or performance under, this Agreement security intended to be provided by the Seller.
(b) The Seller hereby assigns, transfers and conveys to Mortgage. In the Purchaser all case of its rights with respect to approximately 98.01% of the Mortgage Loans including, without limitation, the representations and warranties of FHHLC made pursuant to MLPA I, together with all rights (by Scheduled Principal Balance as of the Seller Cut-off Date), any security agreement, chattel mortgage or equivalent document related to, and delivered to require FHHLC to cure any breach thereof or to repurchase or substitute for any affected the Trustee in connection with, a Mortgage Loan in accordance with MLPA I. It is understood establishes a valid, subsisting and agreed that enforceable first lien on the obligation under MLPA I of FHHLC property described therein and the Depositor has full right to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred sell and is continuing shall constitute assign the sole remedy, which may be enforced solely against FHHLC and not the Seller, respecting such breach available same to the Purchaser on its behalf. The representations and warranties contained in this Agreement shall not be construed as a warranty or guaranty by the Seller as Trustee;
(vi) Immediately prior to the future payments by any Mortgagor. It is understood transfer and agreed that the representations and warranties set forth in this Section 4.1 shall survive the sale assignment of the Mortgage Loans to the Purchaser hereunderDepositor, the Seller was the sole owner of record and holder of each Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, of any encumbrance, equity, participation interest, lien, pledge, charge, claim or security interest, and has full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign each Mortgage Loan pursuant to this Agreement;
(vii) Each Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA Mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) No foreclosure action is being threatened or commenced with respect to any Mortgage Loan. There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Mortgage Loan or the use for which the premises were intended;
(ix) There are no mechanics’ or similar liens or claims which have been filed for work, labor or material (and no rights are outstanding that under the law could give rise to such liens) affecting the related Mortgaged Property which are or may be liens prior to, or equal or coordinate with, the lien of the related Mortgage;
(x) Each Mortgage Loan will have a CLTV of 100% or less as of the Closing Date;
(xi) Each Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2;
(xii) Each Mortgage Loan at the time it was originated complied in all material respects with applicable local, state and federal laws, including, but not limited to, all applicable local, state and federal predatory, abusive and fair lending laws; and, specifically, (a) no Mortgage Loan secured by a Mortgaged Property located in New Jersey is a “High-Cost Home Loan” as defined in the New Jersey Home Ownership Act effective November 27, 2003 (N.J.S.A. 46:10B-22 et seq.); (b) no Mortgage Loan secured by a Mortgaged Property located in New Mexico is a “High-Cost Home Loan” as defined in the New Mexico Home Loan Protection Act effective January 1, 2004 (N.M.
Appears in 1 contract
Samples: Mortgage Loan Sale and Assignment Agreement (Sasco 2007-Bnc1)
Representations and Warranties of the Seller. (a) 2.1 The Seller hereby represents and warrants to the Purchaser, as of the date of execution and delivery hereof, Buyer that:
(1a) The the Seller is a corporation duly organized as a national banking association formed and is validly existing and in good standing under the laws of the United States Province of America British Columbia, has all requisite corporate power and authority and is duly authorized qualified and qualified holds all necessary material permits, licenses and authorizations necessary or required to transact carry on its business as now conducted and to own, lease or operate its properties and assets and no steps or proceedings have been taken by any and all business contemplated by this Agreement to be conducted by person, voluntary or otherwise, requiring or authorizing its dissolution or winding up;
(b) the Seller in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such state, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to perform any of its other obligations under this Agreement in accordance with the terms thereof.
(2) The Seller has the requisite full corporate power and authority to sell each Mortgage Loan, and to execute, deliver and perform, carry on its business and to enter into this Agreement and consummate the transactions any agreement or instrument referred to or contemplated by this Agreement and has duly authorized to carry out its obligations hereunder;
(c) the execution and delivery of this Agreement and the performance by all necessary action on the part Seller of its obligations hereunder and the consummation of the transactions contemplated in this Agreement do not and will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under (whether after notice or lapse of time or both), under: (i) any statute, rule or regulation applicable to the Seller; (ii) the constating documents or resolutions of the managing member or members of the Seller which are in effect at the executiondate hereof; (iii) any mortgage, delivery note, indenture, contract, agreement, joint venture, partnership, instrument, lease or other document to which the Seller is a party or by which it is bound; or (iv) any judgment, decree or order binding on the Seller;
(d) the Property is free and performance clear of all liens, charges and encumbrances other than the Underlying NSR Royalty;
(e) the Seller is the legal and beneficial owner of the Property;
(f) there are no actions, suits, investigations or proceedings before any court, arbitrator, administrative agency or other tribunal or governmental authority, whether pending or, to the Knowledge of the Seller, threatened, which directly or indirectly relate to or affect the interests of the Seller in the Property;
(g) this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties thereto, Agreement constitutes a legal, valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except that (a) the enforceability thereof as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium, receivership and other or similar laws affecting the enforcement of creditors’ rights and remedies generally from time to time in effect and the exercise by courts of equity powers or their application of principles of public policy;
(h) the Property has been operated in accordance with all applicable Environmental Laws and there are no environmental conditions existing on the Property to which any remedial action is required, or any liability has been imposed under applicable Environmental Laws;
(i) the Seller has not received from any government instrumentality any notice of or communication relating to creditors' rights generally any actual or alleged Environmental Claims and there are no outstanding work orders or actions required to be taken relating to environmental matters respecting the Property or any operations carried out on the Property;
(j) no environmental audit, assessment, study or test has been conducted in relation to the mineral claims comprising the Property by or on behalf of creditors the Seller nor is the Seller aware after reasonable inquiry of depository institutions, any of the accounts same having been conducted by or on behalf of which are insured any governmental authority or by the FDIC, and any other Person; and
(bk) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion mineral claims comprising of the court before which any proceeding therefor may be brought.
(3) The execution Property have been duly and delivery validly staked and are recorded in the name of this Agreement by the Seller, the sale of the Mortgage Loans by the Seller under this Agreementare accurately described in Schedule “A” hereto, the consummation of any other of the transactions contemplated by this Agreement, and the fulfillment of or compliance with the terms thereof are in good standing under the ordinary course of business of the Seller and will not (a) result in a material breach of any term or provision of the charter or by-laws of the Seller or (b) materially conflict withjurisdiction in which they are located and are free and clear of all liens, result in a material breachcharges, violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Seller is a party or by which it may be bound, or (c) constitute a material violation of any statute, order or regulation applicable to the Seller of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Seller, other than such conflicts, breaches, violations, accelerations or defaults which, individually or on a cumulative basis, would not have a material adverse effect on the Seller underlying royalties and its subsidiaries, taken as a whole, or the consummation of the transactions contemplated by this Agreement; and the Seller is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Seller's ability to perform or meet any of its obligations under this Agreementencumbrances.
(4) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller that would prohibit the execution or delivery of, or performance under, this Agreement by the Seller.
(b) The Seller hereby assigns, transfers and conveys to the Purchaser all of its rights with respect to the Mortgage Loans including, without limitation, the representations and warranties of FHHLC made pursuant to MLPA I, together with all rights of the Seller to require FHHLC to cure any breach thereof or to repurchase or substitute for any affected Mortgage Loan in accordance with MLPA I. It is understood and agreed that the obligation under MLPA I of FHHLC to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy, which may be enforced solely against FHHLC and not the Seller, respecting such breach available to the Purchaser on its behalf. 2.2 The representations and warranties contained in this Agreement shall not Section 2.1 are provided for the exclusive benefit of the Buyer, and a breach of any one or more thereof may be construed as a warranty or guaranty waived by the Seller as Buyer in whole or in part at any time without prejudice to its rights in respect of any other breach of the future payments by same or any Mortgagor. It is understood other representation or warranty; and agreed that the representations and warranties set forth contained in this Section 4.1 shall 2.1 will survive the sale of the Mortgage Loans to the Purchaser hereunderClosing indefinitely.
Appears in 1 contract
Samples: Mineral Claims Acquisition Agreement
Representations and Warranties of the Seller. (a) The As used in this Section -------------------------------------------- 5, "Knowledge" of Seller hereby of or with respect to any matter means that any of the managers of the Seller or any individual serving the functional equivalent of any such role has actual awareness or knowledge of such matter, without any independent inquiry or investigation. Subject to the foregoing, Seller represents and warrants to the Purchaser, Buyer as of the date of execution and delivery hereof, thatfollows:
(1) The a. Seller is a limited liability company duly organized as a national banking association and is organized, validly existing and in good standing under the laws of the United States State of America Michigan and is duly authorized and qualified to transact any and do business in all business contemplated by this Agreement to be conducted by the Seller in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such state, to the extent jurisdictions as are necessary to ensure its ability to enforce each Mortgage Loan and to perform any of its other obligations under this Agreement in accordance with the terms thereof.
(2) The Seller has the requisite power and authority to sell each Mortgage Loan, and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement.
b. Seller has the power to enter into this Agreement and has to consummate the transactions contemplated hereby. The making and performance by Seller of this Agreement and the agreements and other instruments required hereunder to be executed by the Seller have been, or on the Closing Date will have been, duly authorized by all necessary action on the part and will not violate any provision of the organizational documents of Seller or violate any provision of any license, permit, loan or other type of agreement to which Seller is or will be subject. Further, the execution, delivery making and performance by Seller of this Agreement; Agreement and the agreements and other instruments required hereunder to be executed by Seller will not cause the creation or imposition of any lien, charge or encumbrance on any of the Interests or any of the assets of West Shore or Basin.
c. When executed and delivered, each of this Agreement, assuming Agreement and the due authorization, execution assignments required pursuant to Section 4(a)(i) hereof will constitute legal and delivery thereof by the other parties thereto, constitutes a legal, binding obligations of Seller and will be valid and binding obligation of the Seller, enforceable against the Seller in accordance with its termsthe respective terms hereof and thereof, except that (ai) the enforceability thereof may be limited enforcement of certain rights and remedies created by this Agreement is subject to bankruptcy, insolvency, moratorium, receivership reorganization and other similar laws relating to creditors' of general application affecting the rights generally or and remedies of creditors of depository institutions, the accounts of which are insured by the FDIC, parties and (bii) the remedy enforceability of specific performance and injunctive and other forms any particular provision of this Agreement under principles of equity or the availability of equitable relief may be remedies, such as specific performance, injunctive relief, waiver or other equitable remedies is subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be broughtcourts of competent jurisdiction.
(3) d. The execution Seller has title to the Interests free and delivery of this Agreement by the Seller, the sale of the Mortgage Loans by the Seller under this Agreement, the consummation clear of any security interests, mortgages, liens, pledges, charges or encumbrances, or adverse claims, other of than those that will be released on or before the transactions contemplated by this AgreementClosing Date , and Seller has full right, power and authority to transfer the fulfillment Interests, and Seller will transfer the Interests to Buyer hereunder, subject to no security interests, mortgages, liens, pledges, charges or encumbrances, or adverse claims of or compliance with any nature other than the terms thereof are in the ordinary course lien of business current taxes not yet due and payable. The interest of the Seller and will not (a) result in a material breach of any term or provision being sold hereunder is all of the charter or by-laws of the Seller or (b) materially conflict withInterests, result including a 40% membership interest in a material breach, violation or acceleration of, or result in a material default under, West Shore under the terms of any other material agreement or instrument to which the Seller is Participation, Ownership and Operating Agreement of West Shore (the "West Shore Operating Agreement") dated May 2, 1996, as amended, and a party or by which it may be bound, or (c) constitute a material violation of any statute, order or regulation applicable to 0.8% membership interest in Basin under the Seller of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Seller, other than such conflicts, breaches, violations, accelerations or defaults which, individually or on a cumulative basis, would not have a material adverse effect on the Seller and its subsidiaries, taken as a whole, or the consummation terms of the transactions contemplated by Participation, Ownership and Operating Agreement of Basin (the "Basin Operating Agreement") dated May 2, 1996, as amended.
e. Absence of Certain Changes. Between the date of execution of this Agreement; -------------------------- Agreement and the Seller is Closing Date, there will not in breach or violation of any material indenture be, without Buyer's prior written consent:
(i) A sale, transfer or other material agreement disposition of the Interests;
(ii) A mortgage, pledge or instrument, grant of a lien or security interest in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Seller's ability to perform or meet any of its obligations under this Agreement.the Interests; or
(4iii) No litigation is pending or, A contract or commitment to the best do any of the Seller's knowledge, threatened against the Seller that would prohibit the execution or delivery of, or performance under, this Agreement by the Sellerforegoing.
(b) The Seller hereby assigns, transfers and conveys to the Purchaser all of its rights with respect to the Mortgage Loans including, without limitation, the representations and warranties of FHHLC made pursuant to MLPA I, together with all rights of the Seller to require FHHLC to cure any breach thereof or to repurchase or substitute for any affected Mortgage Loan in accordance with MLPA I. It is understood and agreed that the obligation under MLPA I of FHHLC to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy, which may be enforced solely against FHHLC and not the Seller, respecting such breach available to the Purchaser on its behalf. The representations and warranties contained in this Agreement shall not be construed as a warranty or guaranty by the Seller as to the future payments by any Mortgagor. It is understood and agreed that the representations and warranties set forth in this Section 4.1 shall survive the sale of the Mortgage Loans to the Purchaser hereunder.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Markwest Hydrocarbon Inc)
Representations and Warranties of the Seller. The Seller represents, warrants and covenants to the Purchaser that as of each Closing Date or as of such date specifically provided herein:
(a) The Seller hereby represents and warrants to the Purchaseris a corporation duly organized, as of the date of execution and delivery hereof, that:
(1) The Seller is duly organized as a national banking association and is validly existing and in good standing under the laws of the United States jurisdiction of America its incorporation and has all licenses necessary to carry out its business as now being conducted, and is duly authorized licensed and qualified to transact any business in and all business contemplated by this Agreement to be conducted by is in good standing under the Seller in any laws of each state in which a 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 andand no demand for such licensing or qualification has been made upon the Seller by any such state, and in any event, event the Seller is in compliance with the doing business laws of any such state, state to the extent necessary to ensure its ability to enforce the enforceability of each Mortgage Loan and to perform any the servicing of its other obligations under this Agreement the Mortgage Loans in accordance with the terms thereof.of this Agreement;
(2b) The Seller has the requisite full power and authority and legal right to hold, transfer and convey each Mortgage Loan, to sell each Mortgage Loan, Loan and to execute, deliver and perform, and to enter into and consummate the all transactions contemplated by this Agreement Agreement, the related Purchase Price and Terms Letter and the related Assignment and Conveyance and to conduct its business as presently conducted; the Seller has duly authorized by all necessary action on the part of the Seller the execution, delivery and performance of this Agreement and any agreements contemplated hereby, has duly executed and delivered this Agreement; , the related Purchase Price and Terms Letter and the related Assignment and Conveyance, and any agreements contemplated hereby, and this Agreement, assuming the due authorizationrelated Purchase Price and Terms Letter, execution the related Assignment and delivery thereof by Conveyance and each Assignment of Mortgage to the other parties theretoPurchaser and any agreements contemplated hereby, constitutes a constitute the legal, valid and binding obligation obligations of the Seller, enforceable against the Seller it in accordance with its their respective terms, except that (a) the as such enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership reorganization and other similar laws relating laws, and by equitable principles affecting the enforceability of the rights of creditors; and all requisite corporate action has been taken by the Seller to creditors' rights generally or of creditors of depository institutionsmake this Agreement, the accounts of which are insured by related Purchase Price and Terms Letter, the FDIC, related Assignment and Conveyance and all agreements contemplated hereby valid and binding upon the Seller in accordance with their respective terms;
(bc) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion None of the court before which any proceeding therefor may be brought.
(3) The execution and delivery of this Agreement by Agreement, the Sellerrelated Purchase Price and Terms Letter, the related Assignment and Conveyance, the sale of the Mortgage Loans by to the Seller under Purchaser, the consummation of the transactions contemplated hereby, or the fulfillment of or compliance with the terms and conditions of this Agreement, the consummation related Purchase Price and Terms Letter or the related Assignment and Conveyance will conflict with any of the terms, conditions or provisions of the Seller's charter or by-laws or materially conflict with or result in a material breach of any other of the terms, conditions or provisions of any legal restriction or any material agreement or instrument to which the Seller is now a party or by which it is bound, or constitute a default or result in an acceleration under any of the foregoing, or result in the material violation of any law, rule, regulation, order, judgment or decree to which the Seller or its property is subject;
(d) There is no litigation, suit, proceeding or investigation pending or, to the Seller's knowledge, threatened, or any order or decree outstanding, which is reasonably likely to have a material adverse effect on the sale of the Mortgage Loans, the execution, delivery, performance or enforceability of this Agreement, the related Purchase Price and Terms Letter or the related Assignment and Conveyance, or which is reasonably likely to have a material adverse effect on the financial condition of the Seller;
(e) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Seller of or compliance by the Seller with this Agreement, the related Purchase Price and Terms Letter and the related Assignment and Conveyance, except for consents, approvals, authorizations and orders which have been obtained;
(f) The consummation of the transactions contemplated by this Agreement, the related Purchase Price and Terms Letter and the fulfillment of or compliance with the terms thereof related Assignment and Conveyance are in the ordinary course of business of the Seller Seller, and will not (a) result in a material breach of any term or provision the transfer, assignment and conveyance of the charter or by-laws of Mortgage Notes and the Mortgages by the Seller or (b) materially conflict with, result in a material breach, violation or acceleration of, or result in a material default underpursuant to this Agreement, the terms of any other material agreement or instrument to which the Seller is a party or by which it may be bound, or (c) constitute a material violation of any statute, order or regulation applicable to the Seller of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Seller, other than such conflicts, breaches, violations, accelerations or defaults which, individually or on a cumulative basis, would not have a material adverse effect on the Seller related Purchase Price and its subsidiaries, taken as a whole, or the consummation of the transactions contemplated by this Agreement; Terms Letter and the related Assignment and Conveyance are not subject to bulk transfer or any similar statutory provisions in effect in any applicable jurisdiction;
(g) The Seller is has not used selection procedures that identified the Mortgage Loans as being less desirable or valuable than other comparable mortgage loans in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Seller's ability to perform or meet any of its obligations under this Agreement.portfolio at the Cut-off Date;
(4) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller that would prohibit the execution or delivery of, or performance under, this Agreement by the Seller.
(bh) The Seller hereby assigns, transfers and conveys to the Purchaser all of its rights with respect to the Mortgage Loans including, without limitation, the representations and warranties of FHHLC made pursuant to MLPA I, together with all rights of the Seller to require FHHLC to cure any breach thereof or to repurchase or substitute for any affected Mortgage Loan in accordance with MLPA I. It is understood and agreed that the obligation under MLPA I of FHHLC to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy, which may be enforced solely against FHHLC and not the Seller, respecting such breach available to the Purchaser on its behalf. The representations and warranties contained in this Agreement shall not be construed as a warranty or guaranty by the Seller as to the future payments by any Mortgagor. It is understood and agreed that the representations and warranties set forth in this Section 4.1 shall survive will treat the sale of the Mortgage Loans to the Purchaser hereunderas a sale for reporting and accounting purposes and, to the extent appropriate, for federal income tax purposes;
(i) The Seller is an approved seller/servicer of residential mortgage loans for Fannie Mae or Freddie Mac and HUD, with such facilities, proceduxxx xxd personxxx xxxessary for the sound servicing of such mortgage loans. The Seller 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 event has occurred which would xxxx xhe Sellex xxxxxe to comply with eligibility requirements or which would require notification to either Fannie Mae or Freddie Mac;
(j) The Seller does not belxxxx, nor does xx xxxe 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. 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;
(k) Neither this Agreement nor any information, statement, tape, diskette, form, report, or other document furnished or to be furnished pursuant to this Agreement or any Reconstitution Agreement or in connection with the transactions contemplated hereby (including any Securitization Transfer or Whole Loan Transfer) contains or will contain any untrue statement of fact or omits or will omit to state a fact necessary to make the statements contained herein or therein not misleading;
(l) The Seller acknowledges and agrees that the Servicing Fee represents reasonable compensation for performing such services and that the entire Servicing Fee shall be treated by the Seller, for accounting and tax purposes, as compensation for the servicing and administration of the Mortgage Loans pursuant to this Agreement;
(m) The Seller has delivered to the Purchaser financial statements as to its last two complete fiscal years for which financial statements are available. All such financial statements fairly present the pertinent results of operations and changes in financial position for each of such periods and the financial position at the end of each such period of the Seller and its subsidiaries and have been prepared in accordance with GAAP consistently applied throughout the periods involved, except as set forth in the notes thereto. There has been no change in the business, operations, financial condition, properties or assets of the Seller since the date of the Seller's financial statements that would have a material adverse effect on its ability to perform its obligations under this Agreement, the related Purchase Price and Terms Letter or the related Assignment and Conveyance;
(n) The Seller 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 sale of the Mortgage Loans; and
(o) The Seller is a member of MERS in good standing, and will comply in all material respects with the rules and procedures of MERS in connection with the servicing of the MERS Mortgage Loans for as long as such Mortgage Loans are registered with MERS.
Appears in 1 contract
Samples: Seller's Purchase, Warranties and Servicing Agreement (Morgan Stanley Mortgage Loan Trust 2007-6xs)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Purchaser, Depositor that as of the date of execution and delivery hereof, thatClosing Date:
(1i) The Seller is a corporation duly organized as a national banking association and is organized, validly existing and in good standing under the laws of the United States of America governing its creation and is duly authorized existence and qualified to transact any and all business contemplated by this Agreement to be conducted by the Seller in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such state, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to perform any of its other obligations under this Agreement in accordance with the terms thereof.
(2) The Seller has the requisite full corporate power and authority to sell each Mortgage Loanown its property, and to execute, deliver and performcarry on its business as presently conducted, and to enter into and consummate perform its obligations under this Agreement, the transactions contemplated by this Assignment and Assumption Agreement and has the Bxxx of Sale;
(ii) The execution and delivery by the Seller of this Agreement, the Assignment and Assumption Agreement and the Bxxx of Sale have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and delivery of this Agreement, the Assignment and Assumption Agreement or the Bxxx of Sale, nor the consummation of the transactions herein or therein contemplated, nor compliance with the provisions hereof or thereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) The execution, delivery and performance by the Seller of this Agreement; , the Assignment and Assumption Agreement and the Bxxx of Sale and the consummation of the transactions contemplated hereby and thereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each of this Agreement, the Assignment and Assumption Agreement and the Bxxx of Sale has been duly executed and delivered by the Seller and, assuming the due authorization, execution and delivery thereof by the other parties theretoBank, in the case of the Assignment and Assumption Agreement and the Bxxx of Sale, and the Depositor, in the case of this Agreement, constitutes a legal, valid and binding obligation of the Seller, Seller enforceable against the Seller it in accordance with its respective terms, except that (a) the as such enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership subject to (A) applicable bankruptcy and insolvency laws and other similar laws relating to creditors' affecting the enforcement of the rights generally or of creditors of depository institutions, the accounts of which are insured by the FDIC, generally and (bB) the remedy general principles of specific performance and injunctive and other forms equity regardless of equitable relief may be subject to equitable defenses and whether such enforcement is considered in a proceeding in equity or at law; and
(v) There are no actions, suits or proceedings pending or, to the discretion knowledge of the court before which any proceeding therefor may be brought.
(3) The execution and delivery of this Agreement by the Seller, threatened or likely to be asserted against or affecting the sale of the Mortgage Loans Seller, before or by the Seller under this Agreementany court, the consummation of administrative agency, arbitrator or governmental body (A) with respect to any other of the transactions contemplated by this Agreement, the Assignment and Assumption Agreement or the fulfillment Bxxx of Sale or compliance (B) with the terms thereof are respect to any other matter which in the ordinary course judgment of business of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement, the Assignment and Assumption Agreement or the Bxxx of Sale.
(b) The representations and warranties of the Transferor with respect to the Mortgage Loans in the Transfer Agreement were made as of the date of the Transfer Agreement. To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of both (i) a representation or warranty of the Transferor under the Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than a breach by the Seller of the representations and warranties made by it pursuant to Sections 1.04(b)(xii), 1.04(b)(xiii), 1.04(b)(xvi), 1.04(b)(xvii) and 1.04(b)(xviii)) shall be the right to enforce the obligations of the Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii), 1.04(b)(xiii), 1.04(b)(xvi), 1.04(b)(xvii) and 1.04(b)(xviii) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xiii), 1.04(b)(xvi), 1.04(b)(xvii) and 1.04(b)(xviii)) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Mortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the Transferor in the Transfer Agreement, without regard to whether the Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the Transferor fulfills its obligations under the provisions of the Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) result in a material breach of any term or provision of with the charter or by-laws of applicable Purchase Price for the Seller affected Mortgage Loan or (b) materially conflict withwithin the two-year period following the Closing Date, result with a Qualified Substitute Mortgage Loan for such affected Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Mortgage Loans to the Depositor hereunder on the Closing Date, as to each, that:
(i) The information set forth with respect to the Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Mortgage Loans, and the information with respect to each Mortgage Loan on the Mortgage Loan Schedule is true and correct in a all material breach, violation respects at the date or acceleration of, or result dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in a material default under, payment) in complying with the terms of any other material agreement or instrument to which Mortgage Loan, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage Loan requires all buildings or other improvements on the related Mortgaged Property to be insured by a generally acceptable insurer against loss by fire, hazards of extended coverage and such other hazards as are customary in the area where the related Mortgaged Property is a party or by which it may be bound, or (c) constitute a material violation of any statute, order or regulation applicable located pursuant to insurance policies conforming to the Seller requirements of any courtthe guidelines of FNMA or FHLMC. If upon origination of a Mortgage Loan, regulatory bodythe Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage Loan obligates the related Mortgagor thereunder to maintain the hazard insurance policy at the Mortgagor’s cost and expense, administrative agency or governmental body having jurisdiction over the Seller, other than such conflicts, breaches, violations, accelerations or defaults which, individually or on a cumulative basis, would not have a material adverse effect and on the Seller Mortgagor’s failure to do so, authorizes the holder of the Mortgage to obtain and its subsidiariesmaintain such insurance at such Mortgagor’s cost and expense, taken as and to seek reimbursement therefor from the Mortgagor. Where required by state law or regulation, each Mortgagor has been given an opportunity to choose the carrier of the required hazard insurance, provided the policy is not a whole“master” or “blanket” hazard insurance policy covering the common facilities of a planned unit development. The hazard insurance policy is the valid and binding obligation of the insurer, or is in full force and effect, and will be in full force and effect and inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement; ;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Seller is Mortgaged Property has not been released from the lien of the Mortgage, in breach or violation of any material indenture or other material agreement or instrument, whole or in violation part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each Mortgage Loan evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, order (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or regulation attorney’s opinion of any courttitle and abstract of title delivered to the originator of the applicable Mortgage Loan, regulatory bodyand (3) such other matters to which like properties are commonly subject which do not, administrative agency individually or governmental body having jurisdiction over it which breach in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any security agreement, chattel mortgage or violation may materially impair equivalent document related to, and delivered to the Seller's ability Trustee in connection with, a Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to perform or meet any of its obligations under this Agreement.sell and assign the same to the Trustee;
(4vi) No litigation is pending or, Immediately prior to the best of the Seller's knowledge, threatened against the Seller that would prohibit the execution or delivery of, or performance under, this Agreement by the Seller.
(b) The Seller hereby assigns, transfers transfer and conveys to the Purchaser all of its rights with respect to the Mortgage Loans including, without limitation, the representations and warranties of FHHLC made pursuant to MLPA I, together with all rights of the Seller to require FHHLC to cure any breach thereof or to repurchase or substitute for any affected Mortgage Loan in accordance with MLPA I. It is understood and agreed that the obligation under MLPA I of FHHLC to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy, which may be enforced solely against FHHLC and not the Seller, respecting such breach available to the Purchaser on its behalf. The representations and warranties contained in this Agreement shall not be construed as a warranty or guaranty by the Seller as to the future payments by any Mortgagor. It is understood and agreed that the representations and warranties set forth in this Section 4.1 shall survive the sale assignment of the Mortgage Loans to the Purchaser hereunderDepositor, the Seller was the sole owner of record and holder of each Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, of any encumbrance, equity, participation interest, lien, pledge, charge, claim or security interest, and has full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign each Mortgage Loan pursuant to this Agreement;
(vii) Each Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller’s knowledge, no foreclosure action is being threatened or commenced with respect to any Mortgage Loan.
(ix) There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Mortgage Loan or the use for which the premises were intended;
(x) There are no mechanics’ or similar liens or claims which have been filed for work, labor or material (and no rights are outstanding that under the law could give rise to such liens) affecting the related Mortgaged Property which are or may be liens prior to, or equal or coordinate with, the lien of the related Mortgage;
(xi) Each Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, insurance company or similar institution that is supervised and examined by a Federal or State authority, or by a mortgagee approved by the Secretary of Housing and Urban Development pursuant to Sections 203 and 211 of the National Housing Act;
(xii) Each Mortgage Loan at the time it was originated complied in all material respects with applicable local, state, and federal laws including, but not limited to, all applicable predatory and abusive lending laws;
(xiii) As of the Closing Date, each Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 (determined without regard to Treas. Reg. §1.860G-2(f) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period);
(xiv) As of the Closing Date, no Mortgage Loan provides for interest other than at either (i) a single fixed rate in effect throughout the term of the Mortgage Loan or (ii) a single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term of the Mortgage Loan;
(xv) As of the Closing Date, based on delinquencies in payment on the Mortgage Loans, the Seller would not initiate foreclosure proceedings with respect to any Mortgage Loan prior to the next scheduled payment date on such Mortgage Loan;
(xvi) No Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” “high-risk home” or “predatory” loan under any applicable federal, state or local predatory or abusive lending law (or a similarly classified loan using different terminology under a law imposing heightened regulatory scrutiny or additional legal liability for residential mortgage loans having high interest rates, points and/or fees); no Mortgage Loan originated on or after November 27, 2003 is a “High-Cost Home Loan” subject to the New Jersey Home Ownership Security Act of 2003 (N.J.S.A. 46:10B-22 et seq.); no Mortgage Loan is a “High-Cost Home Loan” subject to the New Mexico Home Loan Protection Act (N.M.
Appears in 1 contract
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Purchaser, Depositor that as of the date of execution and delivery hereof, hereof that:
(1i) The the Seller is a corporation duly organized as a national banking association and is organized, validly existing and in good standing under the laws of the United States of America governing its creation and is duly authorized existence and qualified to transact any and all business contemplated by this Agreement to be conducted by the Seller in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such state, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to perform any of its other obligations under this Agreement in accordance with the terms thereof.
(2) The Seller has the requisite full corporate power and authority to sell each Mortgage Loanown its property, and to execute, deliver and performcarry on its business as presently conducted, and to enter into and consummate perform its obligations under this Agreement;
(ii) the execution and delivery by the Seller of this Agreement have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and delivery of this Agreement, nor the consummation of the transactions herein contemplated, nor compliance with the provisions hereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) the execution, delivery and performance by the Seller of this Agreement and the consummation of the transactions contemplated hereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) this Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Depositor, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its terms except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) there are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement and has duly authorized by all necessary action on or (B) with respect to any other matter which in the part judgment of the Seller will be determined adversely to the executionSeller and will if determined adversely to the Seller materially and adversely affect it or its business, delivery and performance of assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties thereto, constitutes a legal, valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally or of creditors of depository institutions, the accounts of which are insured by the FDIC, and .
(b) the remedy The representations and warranties of specific performance and injunctive and other forms of equitable relief may be subject each Transferor with respect to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
(3) The execution and delivery of this Agreement by the Seller, the sale of the Mortgage Loans by in the applicable Transfer Agreement were made as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the consummation sole right or remedy of the Depositor shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) are applicable only to facts, conditions or events that do not constitute a breach of any other representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Mortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty. Subject to the foregoing, the Seller represents and warrants upon delivery of the transactions contemplated by this AgreementMortgage Loans to the Depositor hereunder, as to each, that:
(i) The information set forth with respect to the Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Mortgage Loans, and the fulfillment of information with respect to each Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or compliance dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms thereof are in the ordinary course of business of the Seller and will not (a) result in a material breach of any term or provision of the charter or by-laws of the Seller or (b) materially conflict with, result in a material breach, violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be insured by a generally acceptable insurer against loss by fire, hazards of extended coverage and such other hazards as are customary in the area where the related Mortgaged Property is a party or by which it may be bound, or (c) constitute a material violation of any statute, order or regulation applicable located pursuant to insurance policies conforming to the Seller requirements of any courtthe guidelines of FNMA or FHLMC. If upon origination of the Mortgage Loan, regulatory bodythe Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related Mortgagor thereunder to maintain the hazard insurance policy at the Mortgagor's cost and expense, administrative agency or governmental body having jurisdiction over the Seller, other than such conflicts, breaches, violations, accelerations or defaults which, individually or on a cumulative basis, would not have a material adverse effect and on the Seller Mortgagor's failure to do so, authorizes the holder of the Mortgage to obtain and its subsidiariesmaintain such insurance at such Mortgagor's cost and expense, taken as and to seek reimbursement therefor from the Mortgagor. Where required by state law or regulation, each Mortgagor has been given an opportunity to choose the carrier of the required hazard insurance, provided the policy is not a whole"master" or "blanket" hazard insurance policy covering the common facilities of a planned unit development. The hazard insurance policy is the valid and binding obligation of the insurer, or is in full force and effect, and will be in full force and effect and inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement; and the Seller is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Seller's ability to perform or meet any of its obligations under this Agreement.
(4) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller that would prohibit the execution or delivery of, or performance under, this Agreement by the Seller.
(b) The Seller hereby assigns, transfers and conveys to the Purchaser all of its rights with respect to the Mortgage Loans including, without limitation, the representations and warranties of FHHLC made pursuant to MLPA I, together with all rights of the Seller to require FHHLC to cure any breach thereof or to repurchase or substitute for any affected Mortgage Loan in accordance with MLPA I. It is understood and agreed that the obligation under MLPA I of FHHLC to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy, which may be enforced solely against FHHLC and not the Seller, respecting such breach available to the Purchaser on its behalf. The representations and warranties contained in this Agreement shall not be construed as a warranty or guaranty by the Seller as to the future payments by any Mortgagor. It is understood and agreed that the representations and warranties set forth in this Section 4.1 shall survive the sale of the Mortgage Loans to the Purchaser hereunder.
Appears in 1 contract
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Purchaser, Depositor that as of the date of execution and delivery hereof, hereof that:
(1i) The Seller is a Delaware corporation duly organized as a national banking association and is organized, validly existing and in good standing under the laws of the United States of America governing its creation and is duly authorized existence and qualified to transact any and all business contemplated by this Agreement to be conducted by the Seller in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such state, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to perform any of its other obligations under this Agreement in accordance with the terms thereof.
(2) The Seller has the requisite full corporate power and authority to sell each Mortgage Loanown its property, and to execute, deliver and perform, carry on its business as presently conducted and to enter into and consummate perform its obligations under this Agreement;
(ii) The execution and delivery by the Seller of this Agreement have been duly authorized by all necessary corporate action on the part of the Seller; none of the execution and delivery of this Agreement, the consummation of the transactions herein contemplated or compliance with the provisions hereof will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the federal stock charter or bylaws of the Seller;
(iii) The execution, delivery and performance by the Seller of this Agreement and the consummation of the transactions contemplated hereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) This Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Depositor, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its terms except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement and has duly authorized by all necessary action on or (B) with respect to any other matter which in the part judgment of the Seller the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties thereto, constitutes a legal, valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except that (a) the enforceability thereof may will be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating determined adversely to creditors' rights generally or of creditors of depository institutions, the accounts of which are insured by the FDIC, and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
(3) The execution and delivery of this Agreement by the Seller, the sale of the Mortgage Loans by the Seller under this Agreement, the consummation of any other of the transactions contemplated by this Agreement, and the fulfillment of or compliance with the terms thereof are in the ordinary course of business of the Seller and will not (a) result in a material breach of any term or provision of the charter or by-laws of the Seller or (b) materially conflict with, result in a material breach, violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Seller is a party or by which it may be bound, or (c) constitute a material violation of any statute, order or regulation applicable if determined adversely to the Seller of any courtmaterially and adversely affect it or its business, regulatory bodyassets, administrative agency operations or governmental body having jurisdiction over the Sellercondition, other than such conflicts, breaches, violations, accelerations financial or defaults which, individually or on a cumulative basis, would not have a material adverse effect on the Seller and its subsidiaries, taken as a wholeotherwise, or the consummation of the transactions contemplated by this Agreement; and the Seller is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Seller's adversely affect its ability to perform or meet any of its obligations under this Agreement.
(4) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller that would prohibit the execution or delivery of, or performance under, this Agreement by the Seller.
(b) The Seller hereby assigns, transfers representations and conveys to warranties of the Purchaser all of its rights Transferor with respect to the Mortgage Loans includingcontained in the Transfer Agreement were made as of the date of the Transfer Agreement and brought forward to the Closing Date pursuant to the Bring Down Letter. The representations and warranties of the Transferor with respect to the Mortgage Loans contained in the Bring Down Letter are being made as of the Closing Date. To the extent that any fact, without limitationcondition or event with respect to a Mortgage Loan constitutes a breach of both (i) a representation or warranty of the Transferor under the Transfer Agreement or Bring Down Letter and (ii) a representation or warranty of the Sponsor under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Sponsor of such representation and warranty (other than a breach by the Sponsor of the representations and warranties made pursuant to Sections 1.04(b)(vi) and 1.04(b)(vii)) shall be the right to enforce the obligations of the Transferor under any applicable representation or warranty made by it; provided, however, that to the extent the Transferor fails to fulfill its contractual obligations under the Transfer Agreement then the Depositor shall have the right to enforce such obligations of the Transferor against the Sponsor. The representations made by the Sponsor pursuant to Sections 1.04(b)(vi) and 1.04(b)(vii) shall be direct obligations of the Sponsor. The Depositor acknowledges and agrees that the representations and warranties of FHHLC made pursuant to MLPA I, together with all rights of the Seller to require FHHLC to cure any breach thereof or to repurchase or substitute for any affected Mortgage Loan in accordance with MLPA I. It is understood and agreed that the obligation under MLPA I of FHHLC to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy, which may be enforced solely against FHHLC and not the Seller, respecting such breach available to the Purchaser on its behalf. The representations and warranties contained Sponsor in this Agreement shall not be construed as a warranty or guaranty by the Seller as to the future payments by any Mortgagor. It is understood and agreed that Section 1.04(b) (other than the representations and warranties set forth made pursuant to Sections 1.04(b)(vi) and 1.04(b)(vii)) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the Transferor in this Section 4.1 shall survive the sale Transfer Agreement or Bring Down Letter. With respect to a breach by the Transferor of any representation or warranty made by the Transferor in the Transfer Agreement or Bring Down Letter, if the Transferor fulfills its obligations under the provisions of the Transfer Agreement and the Bring Down Letter by substituting for the affected Mortgage Loan a mortgage loan which is not a Replacement Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Mortgage Loans to the Purchaser Depositor hereunder, as to each, that as of October 1, 2006:
(i) The information set forth with respect to the Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Mortgage Loans, and the information with respect to each Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) As of the Closing Date, no Mortgage Loan is in foreclosure;
(iii) As of the Closing Date, each Mortgage Loan is a "qualified mortgage" within the meaning of Section 860G of the Code (as determined without regard to Treas.
Appears in 1 contract
Representations and Warranties of the Seller. The Seller represents, warrants and covenants to the Purchaser that as of each Closing Date or as of such date specifically provided herein:
(a) The Seller hereby represents and warrants to the Purchaseris a corporation duly organized, as of the date of execution and delivery hereof, that:
(1) The Seller is duly organized as a national banking association and is validly existing and in good standing under the laws of the United States jurisdiction of America its incorporation and has all licenses necessary to carry out its business as now being conducted, and is duly authorized licensed and qualified to transact any business in and all business contemplated by this Agreement to be conducted by is in good standing under the Seller in any laws of each state in which a 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 andand no demand for such licensing or qualification has been made upon the Seller by any such state, and in any event, event the Seller is in compliance with the doing business laws of any such state, state to the extent necessary to ensure its ability to enforce the enforceability of each Mortgage Loan and to perform any the servicing of its other obligations under this Agreement the Mortgage Loans in accordance with the terms thereof.of this Agreement;
(2b) The Seller has the requisite full power and authority and legal right to hold, transfer and convey each Mortgage Loan, to sell each Mortgage Loan, Loan and to execute, deliver and perform, and to enter into and consummate the all transactions contemplated by this Agreement Agreement, the related Purchase Price and Terms Letter and the related Assignment and Conveyance and to conduct its business as presently conducted; the Seller has duly authorized by all necessary action on the part of the Seller the execution, delivery and performance of this Agreement and any agreements contemplated hereby, has duly executed and delivered this Agreement; , the related Purchase Price and Terms Letter and the related Assignment and Conveyance, and any agreements contemplated hereby, and this Agreement, assuming the due authorizationrelated Purchase Price and Terms Letter, execution the related Assignment and delivery thereof by Conveyance and each Assignment of Mortgage to the other parties theretoPurchaser and any agreements contemplated hereby, constitutes a constitute the legal, valid and binding obligation obligations of the Seller, enforceable against the Seller it in accordance with its their respective terms, except that (a) the as such enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership reorganization and other similar laws relating laws, and by equitable principles affecting the enforceability of the rights of creditors; and all requisite corporate action has been taken by the Seller to creditors' rights generally or of creditors of depository institutionsmake this Agreement, the accounts of which are insured by related Purchase Price and Terms Letter, the FDIC, related Assignment and Conveyance and all agreements contemplated hereby valid and binding upon the Seller in accordance with their respective terms;
(bc) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion None of the court before which any proceeding therefor may be brought.
(3) The execution and delivery of this Agreement by Agreement, the Sellerrelated Purchase Price and Terms Letter, the related Assignment and Conveyance, the sale of the Mortgage Loans by to the Seller under Purchaser, the consummation of the transactions contemplated hereby, or the fulfillment of or compliance with the terms and conditions of this Agreement, the consummation related Purchase Price and Terms Letter or the related Assignment and Conveyance will conflict with any of the terms, conditions or provisions of the Seller's charter or by-laws or materially conflict with or result in a material breach of any other of the terms, conditions or provisions of any legal restriction or any material agreement or instrument to which the Seller is now a party or by which it is bound, or constitute a default or result in an acceleration under any of the foregoing, or result in the material violation of any law, rule, regulation, order, judgment or decree to which the Seller or its property is subject;
(d) There is no litigation, suit, proceeding or investigation pending or, to the Seller's knowledge, threatened, or any order or decree outstanding, which is reasonably likely to have a material adverse effect on the sale of the Mortgage Loans, the execution, delivery, performance or enforceability of this Agreement, the related Purchase Price and Terms Letter or the related Assignment and Conveyance, or which is reasonably likely to have a material adverse effect on the financial condition of the Seller;
(e) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Seller of or compliance by the Seller with this Agreement, the related Purchase Price and Terms Letter and the related Assignment and Conveyance, except for consents, approvals, authorizations and orders which have been obtained;
(f) The consummation of the transactions contemplated by this Agreement, the related Purchase Price and Terms Letter and the fulfillment of or compliance with the terms thereof related Assignment and Conveyance are in the ordinary course of business of the Seller Seller, and will not (a) result in a material breach of any term or provision the transfer, assignment and conveyance of the charter or by-laws of Mortgage Notes and the Mortgages by the Seller or (b) materially conflict with, result in a material breach, violation or acceleration of, or result in a material default underpursuant to this Agreement, the terms of any other material agreement or instrument to which the Seller is a party or by which it may be bound, or (c) constitute a material violation of any statute, order or regulation applicable to the Seller of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Seller, other than such conflicts, breaches, violations, accelerations or defaults which, individually or on a cumulative basis, would not have a material adverse effect on the Seller related Purchase Price and its subsidiaries, taken as a whole, or the consummation of the transactions contemplated by this Agreement; Terms Letter and the related Assignment and Conveyance are not subject to bulk transfer or any similar statutory provisions in effect in any applicable jurisdiction;
(g) The Seller is has not used selection procedures that identified the Mortgage Loans as being less desirable or valuable than other comparable mortgage loans in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Seller's ability to perform or meet any of its obligations under this Agreement.portfolio at the Cut-off Date;
(4) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller that would prohibit the execution or delivery of, or performance under, this Agreement by the Seller.
(bh) The Seller hereby assigns, transfers and conveys to the Purchaser all of its rights with respect to the Mortgage Loans including, without limitation, the representations and warranties of FHHLC made pursuant to MLPA I, together with all rights of the Seller to require FHHLC to cure any breach thereof or to repurchase or substitute for any affected Mortgage Loan in accordance with MLPA I. It is understood and agreed that the obligation under MLPA I of FHHLC to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy, which may be enforced solely against FHHLC and not the Seller, respecting such breach available to the Purchaser on its behalf. The representations and warranties contained in this Agreement shall not be construed as a warranty or guaranty by the Seller as to the future payments by any Mortgagor. It is understood and agreed that the representations and warranties set forth in this Section 4.1 shall survive will treat the sale of the Mortgage Loans to the Purchaser hereunderas a sale for reporting and accounting purposes and, to the extent appropriate, for federal income tax purposes;
(i) The Seller is an approved seller/servicer of residential mortgage loans for Fannie Mae or Freddie Mac and HUD, with such facilities, proceduxxx xxd xxrsonxxx xxxessary for the sound servicing of such mortgage loans. The Seller 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 event has occurred which would xxxx xhe Sellex xxxxxe to comply with eligibility requirements or which would require notification to either Fannie Mae or Freddie Mac;
(j) The Seller does not xxxxxxe, nor dxxx xx 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. 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;
(k) Neither this Agreement nor any information, statement, tape, diskette, form, report, or other document furnished or to be furnished pursuant to this Agreement or any Reconstitution Agreement or in connection with the transactions contemplated hereby (including any Securitization Transfer or Whole Loan Transfer) contains or will contain any untrue statement of fact or omits or will omit to state a fact necessary to make the statements contained herein or therein not misleading;
(l) The Seller acknowledges and agrees that the Servicing Fee represents reasonable compensation for performing such services and that the entire Servicing Fee shall be treated by the Seller, for accounting and tax purposes, as compensation for the servicing and administration of the Mortgage Loans pursuant to this Agreement;
(m) The Seller has delivered to the Purchaser financial statements as to its last two complete fiscal years for which financial statements are available. All such financial statements fairly present the pertinent results of operations and changes in financial position for each of such periods and the financial position at the end of each such period of the Seller and its subsidiaries and have been prepared in accordance with GAAP consistently applied throughout the periods involved, except as set forth in the notes thereto. There has been no change in the business, operations, financial condition, properties or assets of the Seller since the date of the Seller's financial statements that would have a material adverse effect on its ability to perform its obligations under this Agreement, the related Purchase Price and Terms Letter or the related Assignment and Conveyance;
(n) The Seller 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 sale of the Mortgage Loans; and
(o) The Seller is a member of MERS in good standing, and will comply in all material respects with the rules and procedures of MERS in connection with the servicing of the MERS Mortgage Loans for as long as such Mortgage Loans are registered with MERS.
Appears in 1 contract
Samples: Seller's Purchase, Warranties and Servicing Agreement (Morgan Stanley Mortgage Loan Trust 2007-1xs)
Representations and Warranties of the Seller. The Seller represents and warrants to, and agrees with each of the Underwriters and the Trust that:
(a) The Seller hereby represents and warrants to the Purchaser, as of the date of execution and delivery hereof, that:
(1) The Seller is duly organized as a national banking association and is validly existing under the laws of the United States of America and is duly authorized and qualified to transact any and all business contemplated by this Agreement to be conducted compliance by the Seller in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with all the doing business laws provisions of any such state, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to perform any of its other obligations under this Agreement in accordance with the terms thereof.
(2) The Seller has the requisite power and authority to sell each Mortgage Loan, and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary action on the part of the Seller the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties thereto, constitutes a legal, valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally or of creditors of depository institutions, the accounts of which are insured by the FDIC, and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
(3) The execution and delivery of this Agreement by the Seller, the sale of the Mortgage Loans by the Seller under this Agreement, the Contract, the Collateral Agreement and Reimbursement Agreement and the consummation of any other of the transactions herein and therein contemplated by this Agreement, and the fulfillment of or compliance with the terms thereof are in the ordinary course of business of the Seller and will not (a) result in a material breach of any term or provision of the charter or by-laws of the Seller or (b) materially conflict with, result in a material breach, violation or acceleration of, or result in a material breach or violation of any of the terms or provisions of, or constitute a default under, the terms any indenture, mortgage, deed of any trust, loan agreement or other material agreement or instrument to which the Seller is a party or by which it may be boundthe Seller is bound or to which any of the property or assets of the Seller is subject, or (c) constitute a material nor will such action result in any violation of the provisions of any statutestatute or any order, order rule or regulation applicable to the Seller of any court, regulatory body, administrative court or governmental agency or governmental body having jurisdiction over the Seller or any of the property of the Seller; and no consent, other than approval, authorization, order, registration or qualification of or with any such conflicts, breaches, violations, accelerations court or defaults which, individually governmental agency or on a cumulative basis, would not have a material adverse effect on body is required for the compliance by the Seller and its subsidiaries, taken as a whole, with or the consummation by the Seller of the transactions contemplated by this Agreement; and , the Seller is not in breach or violation of any material indenture or other material agreement or instrumentContract, or in violation of any statutethe Collateral Agreement or the Reimbursement Agreement, order except such as may be required by the NASD or regulation of any court, regulatory body, administrative agency the registration under the Act or governmental body having jurisdiction over it which breach or violation may materially impair the Seller's ability to perform or meet any of its obligations under this Agreement.
(4) No litigation is pending or, to the best 1940 Act of the Seller's knowledgeShares and, threatened against if the Seller that would prohibit Shares are no longer listed on the execution American Stock Exchange, except for such consents, approvals, authorizations, orders, registrations, qualifications, licenses and permits as may be required under state securities or delivery of, or performance under, this Agreement by Blue Sky laws in connection with the Sellerpurchase and distribution of the Shares.
(b) This Agreement has been duly authorized, executed and delivered by the Seller. Each of the Contract, the Collateral Agreement and the Reimbursement Agreement have been duly authorized, by the Seller and when duly executed and delivered by the Seller pursuant to the terms hereof, and, assuming due authorization, execution and delivery by the other parties thereto, will constitute a valid and legally binding agreement of the Seller, enforceable against the Seller in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditor's rights generally and to general equity principles (whether considered in a proceeding in equity or at law).
(c) The Seller hereby assignshas, transfers and conveys immediately prior to the Purchaser all Closing Date and the Additional Closing Date (as defined in Section 3(c) hereof) the Seller will have, good and valid title to _______ shares of its rights Common Stock and _______ shares of Nonvoting Common Stock $_____ par value per share (the "Nonvoting Stock" and together with the Common Stock, the "Stock") of FPFG (except with respect to the Mortgage Loans includingCommon Stock on loan pursuant to a lending agreement dated ), free and clear of all liens, encumbrances, equities, restrictions, legends or claims other than those created pursuant to the Collateral Agreement; each share of Nonvoting Common owned by the Seller is convertible at any time by any person other than the Seller and its Affiliates or Farm Bureau Insurance Company and its Affiliates into one share of Common Stock (subject to certain adjustments) without limitationpayment of further consideration; all consents, approvals, authorizations and orders necessary for the Seller to pledge and assign the shares of Stock to be pledged and assigned by the Seller pursuant to the Collateral Agreement have been obtained; the Seller has full right, power and authority to pledge and assign the shares of Stock to be pledged and assigned by the Seller pursuant to the Collateral Agreement; and upon delivery of such shares of Stock and payment therefor pursuant to the Contract, good and valid title to such shares of Stock, free and clear of all liens, encumbrances, equities, restrictions, legends or claims, will pass to the Trust.
(d) The representations and warranties of FHHLC made pursuant to MLPA I, together with all rights the Seller set forth in Section 3 of the Seller to require FHHLC to cure any breach thereof or to repurchase or substitute for any affected Mortgage Loan in accordance Collateral Agreement are true and correct on and as of the date hereof with MLPA I. It is understood and agreed that the obligation under MLPA I of FHHLC to cure, repurchase or replace any Mortgage Loan same effect as to which a breach has occurred and is continuing shall constitute the sole remedy, which may be enforced solely against FHHLC and not the Seller, respecting though such breach available to the Purchaser on its behalf. The representations and warranties contained had been set forth in full in this Agreement Agreement;
(e) During the period beginning from the date hereof and continuing to and including the date 90 days after the date of the Prospectus, the Seller will not offer, sell, contract to sell or otherwise dispose of, except as provided hereunder, any Common Stock or any securities of FPFG that are substantially similar to the Common Stock, including but not limited to any securities that are convertible into or exchangeable for, or that represent the right to receive, Common Stock or any such substantially similar securities without your prior written consent; provided however, that to the extent the Seller has, at the date of the Prospectus or at any time thereafter, borrowings under a margin loan (which loan shall not be construed as a warranty in excess of $____) the foregoing restrictions shall not apply to sales by the lender or guaranty any or all those shares of Stock that are pledged by the Seller as collateral for such margin loan upon default or failure to meet a margin call by Seller [and provided further, that if the Underwriters have not exercised their right to purchase all the Additional Shares pursuant to subsection 2(b) hereof as of the 30th calendar day after the date of the Prospectus, the agreement of the Seller in this paragraph (e) of subsection 2 shall not apply to those Additional Shares the Underwriters have not purchased by such date;
(f) Seller has not taken, nor will Seller take, directly or indirectly, any action which is designed to or which has constituted or which might reasonably by expected to cause or result in stabilization or manipulation of the price of any security of the Trust to facilitate the sale or resale of the TIMES;
(g) At the time of the effectiveness of the Registration Statement or the effectiveness of any post-effective amendment to the future payments Registration Statement, when the Prospectus is first filed with the Commission pursuant to Rule 497 or Rule 434 of the Regulations, when any supplement to or amendment of the Prospectus is filed with the Commission, when any document incorporated therein by reference is filed with the Commission and at the Closing Date and the Additional Closing Date, if any Mortgagor. It (as hereinafter respectively defined), the Notification, the Registration Statement and the Prospectus and any amendments thereof and supplements thereto complied or will comply in all material respects with the applicable provisions of the Act, the 1940 Act and the Regulations and does not or will not contain and untrue statement of a material fact and does not or will not omit to state any material fact required to be stated therein or necessary in order to make the statements therein (i) in the case of the Registration Statement, not misleading and (ii) in the case of the Prospectus, in light of the circumstances under which they were made, not misleading;
(h) The Seller is understood not, and agreed that has not during the representations and warranties three month period preceding the date of this Agreement been, an "affiliate" of the Trust or FPFG, as such term is defined in Rule 12b-2 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or an executive officer or director of FPFG; and
(i) Each Share of Stock owned by the Seller is freely transferable without registration under Section 5 of the Act by reason of the exemption set forth in this Section 4.1 shall survive the sale 4(1) of the Mortgage Loans to the Purchaser hereunderAct.
Appears in 1 contract
Samples: Underwriting Agreement (Mandatory Common Exchange Trust)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Purchaser, as of the date of execution and delivery hereof, that:
(1) The Seller is duly organized as a national banking association Kansas corporation and is validly existing and in good standing under the laws of the United States State of America Kansas and is duly authorized and qualified to transact any and all business contemplated by this Agreement to be conducted by the Seller in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such state, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to perform any of its other obligations under this Agreement in accordance with the terms thereof.
(2) The Seller has the requisite full corporate power and authority to sell each Mortgage Loan, and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary corporate action on the part of the Seller the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties thereto, constitutes a legal, valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally or of creditors of depository institutions, the accounts of which are insured by the FDIC, and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
(3) The execution and delivery of this Agreement by the Seller, the sale of the Mortgage Loans by the Seller under this Agreement, the consummation of any other of the transactions contemplated by this Agreement, and the fulfillment of or compliance with the terms thereof are in the ordinary course of business of the Seller and will not (a) result in a material breach of any term or provision of the charter or by-laws of the Seller or (b) materially conflict with, result in a material breach, violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Seller is a party or by which it may be bound, or (c) constitute a material violation of any statute, order or regulation applicable to the Seller of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Seller, other than such conflicts, breaches, violations, accelerations or defaults which, individually or on a cumulative basis, would not have a material adverse effect on the Seller and its subsidiaries, taken as a whole, or the consummation of the transactions contemplated by this Agreement; and the Seller is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Seller's ability to perform or meet any of its obligations under this Agreement.
(4) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller that would prohibit the execution or delivery of, or performance under, this Agreement by the Seller.
(b) The Seller hereby assigns, transfers makes the representations and conveys warranties set forth in Schedule B hereto to the Purchaser, as of the Closing Date, or if so specified therein, as of the Cut-off Date.
(c) Upon discovery by either of the parties hereto of a breach of a representation or warranty made pursuant to Schedule B hereto that materially and adversely affects the interests of the Purchaser all in any Mortgage Loan, the party discovering such breach shall give prompt notice thereof to the other party. The Seller hereby covenants that within 90 days of the earlier of its rights discovery or its receipt of written notice from the Purchaser of a breach of any representation or warranty made pursuant to Schedule B hereto which materially and adversely affects the interests of the Purchaser in any Mortgage Loan, it shall cure such breach in all material respects, and if such breach is not so cured, shall, (i) if such 90-day period expires prior to the second anniversary of the Closing Date, remove such Mortgage Loan (a "Deleted Mortgage Loan") from the pool of mortgages listed on Schedule B hereto and substitute in its place a Substitute Mortgage Loan, in the manner and subject to the conditions set forth in this Section; or (ii) repurchase the affected Mortgage Loan or Mortgage Loans from the Purchaser at the Mortgage Loan Purchase Price in the manner set forth below. With respect to the representations and warranties described in this Section which are made to the best of the Seller's knowledge, if it is discovered by either the Seller or the Purchaser that the substance of such representation and warranty is inaccurate and such inaccuracy materially and adversely affects the value of the related Mortgage Loan or the interests of the Purchaser therein, notwithstanding the Seller's lack of knowledge with respect to the substance of such representation or warranty, such inaccuracy shall be deemed a breach of the applicable representation or warranty. With respect to any Substitute Mortgage Loan or Loans, the Seller shall deliver to the Trustee or to the Custodian on its behalf the Mortgage Note, the Mortgage, the related assignment of the Mortgage, and such other documents and agreements as are required by Section 2.1, with the Mortgage Note endorsed and the Mortgage assigned as required by Section 2.1. No substitution is permitted to be made in any calendar month after the Determination Date for such month. Scheduled Payments due with respect to Substitute Mortgage Loans includingin the month of substitution will be retained by the Seller. Upon such substitution, without limitationthe Substitute Mortgage Loan or Loans shall be subject to the terms of this Agreement in all respects, and the Seller shall be deemed to have made with respect to such Substitute Mortgage Loan or Loans, as of the date of substitution, the representations and warranties of FHHLC made pursuant to MLPA I, together Schedule B hereto with all rights of the Seller respect to require FHHLC to cure any breach thereof or to repurchase or substitute for any affected such Mortgage Loan in accordance with MLPA I. Loan. It is understood and agreed that the obligation under MLPA I this Agreement of FHHLC the Seller to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy, which may be enforced solely remedy against FHHLC and not the Seller, Seller respecting such breach available to the Purchaser on its behalf. The representations and warranties contained in this Agreement shall not be construed as a warranty or guaranty by the Seller as to the future payments by any Mortgagor. It is understood and agreed that the representations and warranties set forth in this Section 4.1 3.1 shall survive the sale of the Mortgage Loans to the Purchaser hereunder.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (First Horizon Asset Securities Inc)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Purchaser, HopFed Bancorp as of the date of execution this Agreement and delivery hereof, thatthe Closing as follows:
(1) The Seller is duly organized as a national banking association and is validly existing under the laws of the United States of America and is duly authorized and qualified to transact any and all business contemplated by this Agreement to be conducted by the Seller in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such state, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to perform any of its other obligations under this Agreement in accordance with the terms thereof.
(2a) The Seller has the requisite capacity, power and authority to sell each Mortgage Loan, enter into this Agreement and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary action on the part of the Seller the hereby.
(b) The execution, delivery and performance of this Agreement; Agreement by the Seller and this Agreement, assuming the due authorization, execution sale and delivery thereof of the Shares hereunder have been duly authorized by all necessary actions on the part of the Seller and any necessary third party (including any consultation, approval or other action by or with any other person or governmental entity), and will not conflict with or result in a breach or violation of any of the terms or provisions of its certificate of incorporation or bylaws or result in the material breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or any other agreement or instrument to which it is a party or by which it is bound or to which any of its properties or assets is subject, nor will any such action result in any violation of the provisions of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over it or its property.
(c) This Agreement has been duly executed and delivered by the other parties thereto, Seller and constitutes a legal, valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except that (a) the enforceability thereof may be limited by subject to bankruptcy, insolvency, moratoriumfraudulent transfer, receivership reorganization, moratorium and other similar laws of general applicability relating to or affecting creditors' ’ rights generally or of creditors of depository institutions, the accounts of which are insured by the FDIC, and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion general equity principles (regardless of the court before which any whether enforcement is sought in a proceeding therefor may be broughtin equity or at law).
(3d) The execution Seller has record and beneficial ownership of and good and valid title to the Shares, and such ownership and title are free and clear of all liens, pledges, charges, equities, claims or other encumbrances.
(e) Upon each delivery of the Shares hereunder and payment therefor pursuant hereto, good and valid title to the Shares, free and clear of all liens, pledges, charges, equities, claims and encumbrances, will pass to HopFed Bancorp.
(f) The Seller does not hold or own, of record or beneficially, any securities of HopFed Bancorp other than the Shares.
(g) The Seller is not participating with any other person in any “group”, as such term is used in Rule 13D under the Securities Exchange Act of 1934, as amended, with respect to any HopFed Bancorp security.
(h) There is not pending or, to the knowledge of the Seller, threatened against the Seller any action, suit or proceeding at law or in equity before any court, tribunal, governmental body, agency or official or any arbitrator that might affect the legality, validity or enforceability against the Seller of this Agreement by or the Seller, ’s ability to perform the sale Seller’s obligations hereunder.
(i) No person or entity acting on behalf or under the authority of the Mortgage Loans by the Seller under this Agreementis or will be entitled to any broker’s, the consummation of any other of finder’s, or similar fee or commission in connection with the transactions contemplated by this Agreement, and the fulfillment of or compliance with the terms thereof are in the ordinary course of business of the Seller and will not (a) result in a material breach of any term or provision of the charter or by-laws of the Seller or (b) materially conflict with, result in a material breach, violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Seller is a party or by which it may be bound, or (c) constitute a material violation of any statute, order or regulation applicable to the Seller of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Seller, other than such conflicts, breaches, violations, accelerations or defaults which, individually or on a cumulative basis, would not have a material adverse effect on the Seller and its subsidiaries, taken as a whole, or the consummation of the transactions contemplated by this Agreement; and the Seller is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Seller's ability to perform or meet any of its obligations under this Agreement.
(4) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller that would prohibit the execution or delivery of, or performance under, this Agreement by the Seller.
(b) The Seller hereby assigns, transfers and conveys to the Purchaser all of its rights with respect to the Mortgage Loans including, without limitation, the representations and warranties of FHHLC made pursuant to MLPA I, together with all rights of the Seller to require FHHLC to cure any breach thereof or to repurchase or substitute for any affected Mortgage Loan in accordance with MLPA I. It is understood and agreed that the obligation under MLPA I of FHHLC to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy, which may be enforced solely against FHHLC and not the Seller, respecting such breach available to the Purchaser on its behalf. The representations and warranties contained in this Agreement shall not be construed as a warranty or guaranty by the Seller as to the future payments by any Mortgagor. It is understood and agreed that the representations and warranties set forth in this Section 4.1 shall survive the sale of the Mortgage Loans to the Purchaser hereunder.
Appears in 1 contract
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Purchaser, Depositor that as of the date of execution and delivery hereof, hereof that:
(1i) The Seller is duly organized as a national banking association and is association, validly existing and in good standing under the laws of the United States of America and is duly authorized and qualified to transact any and all business contemplated by this Agreement to be conducted by the Seller in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such state, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to perform any of its other obligations under this Agreement in accordance with the terms thereof.
(2) The Seller has the requisite full corporate power and authority to sell each Mortgage Loanown its property, and to execute, deliver and perform, carry on its business as presently conducted and to enter into and consummate perform its obligations under this Agreement;
(ii) The execution and delivery by the Seller of this Agreement have been duly authorized by all necessary corporate action on the part of the Seller; none of the execution and delivery of this Agreement, the consummation of the transactions herein contemplated or compliance with the provisions hereof will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the federal stock charter or bylaws of the Seller;
(iii) The execution, delivery and performance by the Seller of this Agreement and the consummation of the transactions contemplated hereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) This Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Depositor, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its terms except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement and has duly authorized by all necessary action on or (B) with respect to any other matter which in the part judgment of the Seller the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties thereto, constitutes a legal, valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except that (a) the enforceability thereof may will be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating determined adversely to creditors' rights generally or of creditors of depository institutions, the accounts of which are insured by the FDIC, and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
(3) The execution and delivery of this Agreement by the Seller, the sale of the Mortgage Loans by the Seller under this Agreement, the consummation of any other of the transactions contemplated by this Agreement, and the fulfillment of or compliance with the terms thereof are in the ordinary course of business of the Seller and will not (a) result in a material breach of any term or provision of the charter or by-laws of the Seller or (b) materially conflict with, result in a material breach, violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Seller is a party or by which it may be bound, or (c) constitute a material violation of any statute, order or regulation applicable if determined adversely to the Seller of any courtmaterially and adversely affect it or its business, regulatory bodyassets, administrative agency operations or governmental body having jurisdiction over the Sellercondition, other than such conflicts, breaches, violations, accelerations financial or defaults which, individually or on a cumulative basis, would not have a material adverse effect on the Seller and its subsidiaries, taken as a wholeotherwise, or the consummation of the transactions contemplated by this Agreement; and the Seller is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Seller's adversely affect its ability to perform or meet any of its obligations under this Agreement.
(4) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller that would prohibit the execution or delivery of, or performance under, this Agreement by the Seller.
(b) The Seller hereby assigns, transfers representations and conveys to warranties of the Purchaser all of its rights Transferor with respect to the Mortgage Loans includingcontained in the Transfer Agreement were made as of the date of the Transfer Agreement and brought forward to the Closing Date pursuant to the Bring Down Letter. The representations and warranties of the Transferor with respect to the Mortgage Loans contained in the Bring Down Letter were made as of the Closing Date. To the extent that any fact, without limitationcondition or event with respect to a Mortgage Loan constitutes a breach of both (i) a representation or warranty of the Transferor under the Transfer Agreement or Bring Down Letter and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than a breach by the Seller of the representations and warranties made pursuant to Sections 1.04(b)(vii) and 1.04(b)(viii)) shall be the right to enforce the obligations of the Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(vii) and 1.04(b)(viii) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of FHHLC made pursuant to MLPA I, together with all rights of the Seller to require FHHLC to cure any breach thereof or to repurchase or substitute for any affected Mortgage Loan in accordance with MLPA I. It is understood and agreed that the obligation under MLPA I of FHHLC to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy, which may be enforced solely against FHHLC and not the Seller, respecting such breach available to the Purchaser on its behalf. The representations and warranties contained in this Agreement shall not be construed as a warranty or guaranty by the Seller as to the future payments by any Mortgagor. It is understood and agreed that Section 1.04(b) (other than the representations and warranties set forth made pursuant to Sections 1.04(b)(vii) and 1.04(b)(viii)) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the Transferor in this Section 4.1 the Transfer Agreement or Bring Down Letter. The Seller shall survive have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the sale Mortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the Transferor in the Transfer Agreement or Bring Down Letter, without regard to whether the Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the Transferor fulfills its obligations under the provisions of the Transfer Agreement and the Bring Down Letter by substituting for the affected Mortgage Loan a mortgage loan which is not a Replacement Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Mortgage Loans to the Purchaser Depositor hereunder, as to each, that as of September 29, 2005:
(i) The information set forth with respect to the Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Mortgage Loans, and the information with respect to each Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) As of the Closing Date, no Mortgage Loan is in foreclosure;
(iii) As of the Closing Date, each Mortgage Loan is a "qualified mortgage" within the meaning of Section 860G of the Code (as determined without regard to Treas.
Appears in 1 contract
Samples: Mortgage Loan Sale and Assignment Agreement (Wachovia Mortgage Loan Trust, Series 2005-Wmc1)
Representations and Warranties of the Seller. The Seller represents, warrants and covenants to the Purchaser that as of the related Closing Date or as of such date specifically provided herein:
(a) The Seller hereby represents and warrants to the Purchaseris a corporation duly organized, as of the date of execution and delivery hereof, that:
(1) The Seller is duly organized as a national banking association and is validly existing and in good standing under the laws of the United States State of America New Jersey and has all licenses necessary to carry out its business as now being conducted, and is duly authorized licensed and qualified to transact any business in and all business contemplated by this Agreement to be conducted by is in good standing under the Seller in any laws of each state in which a 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 andand no demand for such licensing or qualification has been made upon such Seller by any such state, and in any event, event such Seller is in compliance with the doing business laws of any such state, state to the extent necessary to ensure its ability to enforce the enforceability of each Mortgage Loan and to perform any the servicing of its other obligations under this Agreement the Mortgage Loans in accordance with the terms thereof.of this Agreement;
(2b) The Seller has the requisite full power and authority and legal right to hold, transfer and convey each Mortgage Loan, to sell each Mortgage Loan, Loan and to execute, deliver and perform, and to enter into and consummate the all transactions contemplated by this Agreement and to conduct its business as presently conducted, has duly authorized by all necessary action on the part of the Seller the execution, delivery and performance of this Agreement; Agreement and any agreements contemplated hereby, has duly executed and delivered this Agreement, assuming and any agreements contemplated hereby, and this Agreement and each Assignment of Mortgage to the due authorization, execution Purchaser and delivery thereof by the other parties theretoany agreements contemplated hereby, constitutes a legal, valid and binding obligation of the Seller, enforceable against the Seller it in accordance with its terms, except that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally or of creditors of depository institutions, the accounts of which are insured all requisite corporate action has been taken by the FDIC, Seller to make this Agreement and all agreements contemplated hereby valid and binding upon the Seller in accordance with their terms;
(bc) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion None of the court before which any proceeding therefor may be brought.
(3) The execution and delivery of this Agreement Agreement, the origination of the Mortgage Loans by the Seller, the sale of the Mortgage Loans by to the Seller under this AgreementPurchaser, the consummation of any other of the transactions contemplated by this Agreementhereby, and or the fulfillment of or compliance with the terms thereof are in the ordinary course and conditions of business this Agreement will conflict with any of the Seller and will not (a) terms, conditions or provisions of the Seller’s charter or by-laws or materially conflict with or result in a material breach of any term or provision of the charter terms, conditions or by-laws of the Seller or (b) materially conflict with, result in a material breach, violation or acceleration of, or result in a material default under, the terms provisions of any other material legal restriction or any agreement or instrument to which the Seller is now a party or by which it may be is bound, or (c) constitute a default or result in an acceleration under any of the foregoing, or result in the material violation of any statutelaw, rule, regulation, order, judgment or decree to which the Seller or its property is subject or impair the ability of the Purchaser to realize on the Mortgage Loans or impair the value of the Mortgage Loans;
(d) Each Mortgage Note, each Mortgage, each Assignment of Mortgage and any other documents required pursuant to this Agreement to be delivered to the Purchaser or its designee, or its assignee for each Mortgage Loan, have been, on or before the related Closing Date, delivered to the Purchaser or its designee, or its assignee with the exception of documents required to be recorded and documents dependant on such recorded documents, such as title policies;
(e) There is no litigation, suit, proceeding or investigation pending or threatened, or any order or regulation applicable decree outstanding, with respect to the Seller of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Seller, other than such conflicts, breaches, violations, accelerations or defaults which, individually either in one instance or on a cumulative basisin the aggregate, would not is reasonably likely to have a material adverse effect on the sale or servicing of the Mortgage Loans, the execution, delivery, performance or enforceability of this Agreement, or which is reasonably likely to have a material adverse effect on the financial condition of the Seller;
(f) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Seller of or compliance by the Seller with this Agreement, or the sale of the Mortgage Loans and its subsidiaries, taken as a whole, delivery of the Mortgage Files to the Purchaser or the consummation of the transactions contemplated by this Agreement; , except for consents, approvals, authorizations and orders which have been obtained;
(g) The consummation of the transactions contemplated by this Agreement is in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to bulk transfer or any similar statutory provisions in effect in any applicable jurisdiction;
(h) The origination, collection and servicing practices used by the Seller, any Originator and Prior Servicers, with respect to each Mortgage Note and Mortgage have been legal and in accordance with applicable laws and regulations, and in all material respects proper and prudent in the mortgage origination and servicing business. With respect to escrow deposits and payments that the Seller is not entitled to collect, all such payments are in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Seller's ability to perform or meet any of its obligations under this Agreement.
(4) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller that would prohibit the execution or delivery possession of, or performance underunder the control of, this Agreement by the Seller., and there exist no deficiencies in connection therewith for which customary arrangements for repayment thereof have not been made. All escrow payments have been collected in full compliance with state and federal law and the provisions of the related Mortgage Note and Mortgage. 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;
(bi) The Seller hereby assigns, transfers and conveys used no adverse selection procedures in selecting from among the outstanding first lien residential mortgage loans owned by it which were available for inclusion in the sale to the Purchaser all of its rights with respect to the Mortgage Loans including, without limitation, the representations and warranties of FHHLC made pursuant to MLPA I, together with all rights of the Purchaser;
(j) The Seller to require FHHLC to cure any breach thereof or to repurchase or substitute for any affected Mortgage Loan in accordance with MLPA I. It is understood and agreed that the obligation under MLPA I of FHHLC to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy, which may be enforced solely against FHHLC and not the Seller, respecting such breach available to the Purchaser on its behalf. The representations and warranties contained in this Agreement shall not be construed as a warranty or guaranty by the Seller as to the future payments by any Mortgagor. It is understood and agreed that the representations and warranties set forth in this Section 4.1 shall survive will treat the sale of the Mortgage Loans to the Purchaser hereunderas a sale for reporting and accounting purposes and, to the extent appropriate, for federal income tax purposes;
(k) Seller is an approved seller/servicer of residential mortgage loans for Xxxxxx Mae/Xxxxxxx Mac and HUD, with such facilities, procedures and personnel necessary for the sound servicing of such mortgage loans. The Seller is duly qualified, licensed, registered and otherwise authorized under all applicable federal, state and local laws, and regulations, if applicable, meets the minimum capital requirements set forth by the OCC, and is in good standing to sell mortgage loans to and service mortgage loans for Xxxxxx Mae/Xxxxxxx Mac and no event has occurred which would make Seller unable to comply with eligibility requirements or which would require notification to either Xxxxxx Mae or Xxxxxxx Mac;
(l) The Seller 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. 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;
(m) No statement, tape, diskette, form, report or other document prepared by, or on behalf of, Seller pursuant to this Agreement or in connection with the transactions contemplated hereby, contains or will contain any statement that is or will be inaccurate or misleading in any material respect;
(n) The Seller acknowledges and agrees that the Servicing Fee represents reasonable compensation for performing such services and that the entire Servicing Fee shall be treated by the Seller, for accounting and tax purposes, as compensation for the servicing and administration of the Mortgage Loans pursuant to this Agreement; in the opinion of Seller, the consideration received by Seller upon the sale of the Mortgage Loans to Purchaser under this Agreement constitutes fair consideration for the Mortgage Loans under current market conditions.
(o) If requested by the Purchaser, the Seller has delivered to the Purchaser financial statements as to its last two complete fiscal years. All such financial statements fairly present the pertinent results of operations and changes in financial position for each of such periods and the financial position at the end of each such period of the Seller and its subsidiaries and have been prepared in accordance with GAAP consistently applied throughout the periods involved, except as set forth in the notes thereto. There has been no change in the business, operations, financial condition, properties or assets of the Seller since the date of the Seller’s financial statements that would have a material adverse effect on its ability to perform its obligations under this Agreement;
(p) The Seller 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 sale of the Mortgage Loans; and
(q) The Seller is a member of MERS in good standing, and will comply in all material respects with the rules and procedures of MERS in connection with the servicing of the MERS Mortgage Loans for as long as such Mortgage Loans are registered with MERS.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (J.P. Morgan Mortgage Trust 2006-A1)
Representations and Warranties of the Seller. (a) The Seller hereby the Distributor and the Advisor. Each of the Seller, the Distributor and the Advisor represents and warrants to the PurchaserPurchaser and the Program Agent, as to itself, on and as of the date hereof and on and as of execution and delivery hereofeach Purchase Date, thatas follows:
(1a) The Seller it is duly organized as a national banking association and is validly existing and in good standing under the laws of the United States jurisdiction of America its incorporation, with full corporate power and is duly authorized authority to own and qualified to transact any and all operate its property, conduct the business contemplated by this Agreement to be conducted by the Seller in any state in which a Mortgaged Property it is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such state, to the extent necessary to ensure its ability to enforce each Mortgage Loan now engaged and to execute and deliver and perform any of its other obligations under this Agreement in accordance with and the terms thereof.other Facility Documents to which it is a party;
(2b) The Seller has it is duly qualified to do business as a foreign corporation and is in good standing in each jurisdiction in which the requisite power and authority to sell each Mortgage Loan, and to execute, deliver and perform, and to enter into and consummate nature of its business or the transactions contemplated by performance of its obligations under this Agreement and has duly authorized by all necessary action on the part other Program Documents to which it is a party requires such qualification, where the failure to be so qualified could give rise to a reasonable possibility of the Seller an Adverse Effect;
(c) the execution, delivery and performance by it of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties thereto, constitutes Facility Documents to which it is a party and the other instruments and agreements contemplated hereby or thereby have been duly authorized by all requisite corporate action and have been duly executed and delivered by it and constitute its legal, valid and binding obligation obligations, enforceable against it in accordance with their respective terms, except as such enforceability may be limited by applicable bankruptcy laws and any other similar laws affecting the rights and remedies of creditors generally and by equitable principles;
(i) it has the requisite corporate power and authority and legal right to execute and deliver this Agreement and the other Facility Documents to which it is a party and to perform its obligations hereunder and thereunder, and (ii) the Distributor and the Seller have the requisite corporate power and authority and legal right to from time to time, sell Receivables (and in the case of the Seller, enforceable against the Seller Ancillary Rights with respect thereto) relating to each Fund, and the Collections with respect thereto in accordance with its terms, except that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally or of creditors of depository institutions, the accounts of which are insured by the FDIC, and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion terms of the court before which any proceeding therefor may be brought.Facility Documents and it has duly authorized each such sale by all necessary action;
(3e) The neither the execution and delivery of this Agreement by the Seller, the sale of the Mortgage Loans by the Seller under this Agreement, the consummation of any other of the transactions contemplated by this Agreement, and the fulfillment of or compliance with the terms thereof are in the ordinary course of business of the Seller and will not (a) result in Program Documents to which it is a material breach of any term or provision of the charter or by-laws of the Seller or (b) materially conflict with, result in a material breach, violation or acceleration ofparty, or result in a material default underany instrument or agreement referred to herein or therein, the terms of any other material agreement or instrument to which the Seller is a party or by which it may be bound, or (c) constitute a material violation of any statute, order or regulation applicable to the Seller of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Seller, other than such conflicts, breaches, violations, accelerations or defaults which, individually or on a cumulative basis, would not have a material adverse effect on the Seller and its subsidiaries, taken as a whole, or the consummation of the transactions contemplated by this Agreement; and the Seller is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Seller's ability to perform or meet any of its obligations under this Agreement.
(4) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller that would prohibit the execution or delivery of, or performance under, this Agreement by the Seller.
(b) The Seller hereby assigns, transfers and conveys to the Purchaser all of its rights with respect to the Mortgage Loans including, without limitation, the representations and warranties of FHHLC made pursuant to MLPA I, together with all rights of the Seller to require FHHLC to cure any breach thereof or to repurchase or substitute for any affected Mortgage Loan in accordance with MLPA I. It is understood and agreed that the obligation under MLPA I of FHHLC to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy, which may be enforced solely against FHHLC and not the Seller, respecting such breach available to the Purchaser on its behalf. The representations and warranties contained in this Agreement shall not be construed as a warranty or guaranty by the Seller as to the future payments by any Mortgagor. It is understood and agreed that the representations and warranties set forth in this Section 4.1 shall survive the sale of the Mortgage Loans to the Purchaser hereunder.
Appears in 1 contract
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Purchaser, Depositor that as of the date of execution and delivery hereof, hereof that:
(1i) The Seller is a Delaware corporation duly organized as a national banking association and is organized, validly existing and in good standing under the laws of the United States of America governing its creation and is duly authorized existence and qualified to transact any and all business contemplated by this Agreement to be conducted by the Seller in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such state, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to perform any of its other obligations under this Agreement in accordance with the terms thereof.
(2) The Seller has the requisite full corporate power and authority to sell each Mortgage Loanown its property, and to execute, deliver and perform, carry on its business as presently conducted and to enter into and consummate perform its obligations under this Agreement;
(ii) The execution and delivery by the Seller of this Agreement have been duly authorized by all necessary corporate action on the part of the Seller; none of the execution and delivery of this Agreement, the consummation of the transactions herein contemplated or compliance with the provisions hereof will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the federal stock charter or bylaws of the Seller;
(iii) The execution, delivery and performance by the Seller of this Agreement and the consummation of the transactions contemplated hereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) This Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Depositor, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its terms except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement and has duly authorized by all necessary action on or (B) with respect to any other matter which in the part judgment of the Seller the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties thereto, constitutes a legal, valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except that (a) the enforceability thereof may will be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating determined adversely to creditors' rights generally or of creditors of depository institutions, the accounts of which are insured by the FDIC, and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
(3) The execution and delivery of this Agreement by the Seller, the sale of the Mortgage Loans by the Seller under this Agreement, the consummation of any other of the transactions contemplated by this Agreement, and the fulfillment of or compliance with the terms thereof are in the ordinary course of business of the Seller and will not (a) result in a material breach of any term or provision of the charter or by-laws of the Seller or (b) materially conflict with, result in a material breach, violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Seller is a party or by which it may be bound, or (c) constitute a material violation of any statute, order or regulation applicable if determined adversely to the Seller of any courtmaterially and adversely affect it or its business, regulatory bodyassets, administrative agency operations or governmental body having jurisdiction over the Sellercondition, other than such conflicts, breaches, violations, accelerations financial or defaults which, individually or on a cumulative basis, would not have a material adverse effect on the Seller and its subsidiaries, taken as a wholeotherwise, or the consummation of the transactions contemplated by this Agreement; and the Seller is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Seller's adversely affect its ability to perform or meet any of its obligations under this Agreement.
(4) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller that would prohibit the execution or delivery of, or performance under, this Agreement by the Seller.
(b) The Seller hereby assigns, transfers representations and conveys to warranties of the Purchaser all of its rights Transferor with respect to the Mortgage Loans including, without limitation, contained in the representations Transfer Agreement were made as of the date of the Transfer Agreement and warranties of FHHLC made brought forward to the Closing Date pursuant to MLPA I, together with all rights of the Seller to require FHHLC to cure any breach thereof or to repurchase or substitute for any affected Mortgage Loan in accordance with MLPA I. It is understood and agreed that the obligation under MLPA I of FHHLC to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy, which may be enforced solely against FHHLC and not the Seller, respecting such breach available to the Purchaser on its behalfBring Down Letter. The representations and warranties of the Transferor with respect to the Mortgage Loans contained in the Bring Down Letter were made as of the Closing Date. To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of a representation or warranty of the Transferor under the Transfer Agreement or Bring Down Letter (whether or not such fact, condition or event would also constitute a representation or warranty of the Seller under this Agreement shall not be construed as Agreement) the only rights or remedies of the Depositor with respect to a warranty or guaranty breach by the Seller as of such representation and warranty shall be first, the right to enforce the obligations of the Transferor under such applicable representation or warranty made by it and, second, only if the Transferor is unable or unwilling to fulfill its obligation to cure or repurchase such Mortgage Loan, the Depositor shall have the right to enforce such rights against the Seller under this Agreement with respect to such representation or warranty; provided, that in the event that the Depositor has received evidence of the issuance of a Transferor Affirmation Notice, the Depositor shall only be entitled to enforce any right it has against the Transferor under the Transferor Agreement and shall not have any rights against the Seller under the Sale Agreement with respect to such representation or warranty. The representations made by the Seller pursuant to Sections 1.04(b)(vii) and 1.04(b)(viii) shall be direct obligations of the Seller. In furtherance of the above, the Seller expressly acknowledges that prior to the future payments issuance of a Transferor Affirmation Notice, it shall be obligated and liable to the Depositor for any breach of a representation or warranty made under the Transfer Agreement, but only after the Transferor evidences that it is unwilling or unable to fulfill its contractual obligations under the Transfer Agreement. With respect to a breach by the Transferor of any Mortgagorrepresentation or warranty made by the Transferor in the Transfer Agreement or Bring Down Letter, if the Transferor fulfills its obligations under the provisions of the Transfer Agreement and the Bring Down Letter by substituting for the affected Mortgage Loan a mortgage loan which is not a Replacement Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Mortgage Loan. It is understood Subject to the foregoing, the Seller represents and agreed that the representations and warranties set forth in this Section 4.1 shall survive the sale warrants upon delivery of the Mortgage Loans to the Purchaser Depositor hereunder, as to each, that as of October 28, 2005:
(i) The information set forth with respect to the Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Mortgage Loans, and the information with respect to each Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) As of the Closing Date, no Mortgage Loan is in foreclosure;
(iii) As of the Closing Date, each Mortgage Loan is a "qualified mortgage" within the meaning of Section 860G of the Code (as determined without regard to Treas.
Appears in 1 contract
Samples: Mortgage Loan Sale and Assignment Agreement (Ownit Mortgage Loan Trust, Series 2005-4)
Representations and Warranties of the Seller. (a) The 7.1.1 As an inducement to the Acquirer to enter into this Agreement and the Ancillary Agreements, the Seller hereby represents and warrants to the Purchaser, as Acquirer that each of the following representations and warranties is on the date of execution hereof (and delivery hereofwill be on the Completion Date) true and accurate unless the statement refers to only one such date, that:in which case it is made solely at such specified date.
(1) 7.1.2 The Seller (a) is duly organized as a national banking association organised and is validly existing and in good standing under the laws of the United States of America Delaware and is duly authorized and qualified to transact any and has all business contemplated by this Agreement to be conducted by the Seller in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such state, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to perform any of its other obligations under this Agreement in accordance with the terms thereof.
(2) The Seller has the requisite power and authority to sell enter into this Agreement and each Mortgage LoanAncillary Agreement to which it is a party, to carry out its obligations hereunder and thereunder and to execute, deliver and perform, and to enter into and consummate the transactions contemplated hereby and thereby, and (b) the execution and delivery by the Seller of this Agreement and has each Ancillary Agreement to which it is a party, the performance by the Seller of its obligations hereunder and thereunder and the consummation by the Seller of the transactions contemplated hereby and thereby have been duly authorized by in accordance with all necessary action on the part applicable laws. This Agreement constitutes, and upon its execution each of the Seller the executionAncillary Agreements will constitute, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties thereto, constitutes a legal, valid and binding obligation of the Seller, Seller enforceable against the Seller in accordance with its their terms, except that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally or of creditors of depository institutions, the accounts of which are insured by the FDIC, and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
(3) 7.1.3 The execution execution, delivery and delivery performance of this Agreement by and the Seller, the sale of the Mortgage Loans Ancillary Agreements by the Seller under this Agreement, the consummation of any other of the transactions contemplated by this Agreement, and the fulfillment of or compliance with the terms thereof are in the ordinary course of business of the Seller do not and will not (a) violate, conflict with or result in a material the breach of any term or provision of the charter or by-laws (or similar organisational documents) of the Seller or Seller, (b) materially conflict withwith or violate (or cause an event which could have a material adverse effect as a result of) any law, regulation, decree, judgement or governmental order applicable to the Seller, or (c) result in a material breach, violation or acceleration of, or result in a material default under, the terms creation of any encumbrance on any shares or securities pursuant to, any note, bond, mortgage or indenture, contract, agreement, lease, sublease, license, permit, franchise or other material agreement instrument or instrument arrangement to which the Seller is a party or by which it may be boundparty.
7.1.4 The Seller will own immediately prior to their transfer to the Acquirer pursuant to clause 2.1 of this Agreement, or (c) constitute a material violation free and clear of any statuteEncumbrance, order or regulation applicable the Shares. The Seller will on the Completion Date have the right and the authority to transfer to the Seller of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Seller, other than such conflicts, breaches, violations, accelerations or defaults which, individually or on a cumulative basis, would not have a material adverse effect Acquirer on the Seller terms and its subsidiaries, taken as a whole, or the consummation of the transactions contemplated by conditions set out in this Agreement; , the full legal title to and the Seller is not full beneficial interest in breach or violation of the Shares. no person has any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Seller's ability to perform or meet any of its obligations under this Agreement.
right (4) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller that would prohibit the execution or delivery of, or performance under, this Agreement by the Seller.
(b) The Seller hereby assigns, transfers and conveys to the Purchaser all of its rights with respect to the Mortgage Loans including, without limitation, a pre-emptive right, a tag along right or a call or put option right on any shares or securities) that would preclude, or conflict with, the representations transfer to the Acquirer of the Shares.
7.1.5 The authorized share capital of the Company consists of 117,644 shares with a nominal value of Euro 15.24 per share, of which 117,644 shares are issued and warranties outstanding, all of FHHLC made pursuant to MLPA Iwhich are validly issued and fully paid (including any share premium). None of the Shares was issued in violation of any pre-emptive rights or other third party's rights. All Shares are ordinary shares, all of the same class bearing the same rights and obligations, and there are no preference shares in existence on the date hereof. Schedule 7.1.5 sets forth the name of the Persons holding Shares on the date hereof and the number of Shares held by each such Person, together with all the percentage of the issued share capital which such Shares represent. There are no Securities, or other rights, agreements, arrangements or commitments of any character relating to the capital stock of the Company or obligating any Person holding Shares or Securities or the Company to grant, issue or sell any shares or any other interest in the share capital or voting rights of the Seller Company. The Shares represent 100% of the fully diluted share capital of the Company. At Completion, full legal title to require FHHLC the Shares will be validly conveyed to cure the Acquirer, free and clear of any breach thereof or to repurchase or substitute for any affected Mortgage Loan Encumbrance, in accordance with MLPA I. It the terms of this Agreement, and recorded in the name of the Acquirer in the Company's share register. There is understood no Encumbrance on, over or affecting any of the Shares nor is there any commitment to give or create such Encumbrance and agreed that no Person has claimed to be entitled to such Encumbrance.
7.1.6 The authorized share capital of the obligation under MLPA I Subsidiary consists of FHHLC to cure220,250 shares with a nominal value of 15.24 euro per share, repurchase of which 220,250 shares are issued and outstanding, all of which are validly issued and fully paid (including any share premium). None of the Subsidiary shares was issued in violation of any pre-emptive rights or replace other third party's rights. All Subsidiary shares are of the same class bearing the same rights and obligations, and there are no preference shares in existence on the date hereof. Schedule 7.1.6 sets forth the name of the Persons holding Subsidiary shares on the date hereof and the number of Subsidiary shares held by each such Person, together with the percentage of the issued share capital which such Subsidiary shares represent). There are no Securities, or other rights, agreements, arrangements or commitments of any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy, which may be enforced solely against FHHLC and not the Seller, respecting such breach available character relating to the Purchaser on its behalfcapital stock of the Subsidiary or obligating any Person holding Subsidiary shares or Securities or the Subsidiary to grant, issue or sell any shares or any other interest in the share capital or voting rights of the Subsidiary. The representations and warranties contained in this Agreement shall not Subsidiary shares represent 100% of the fully diluted share capital of the Subsidiary. At Completion, full legal title to the Subsidiary shares will be construed as a warranty or guaranty validly held by the Seller as to Company, free and clear of any Encumbrance and recorded in the future payments by any Mortgagor. It is understood and agreed that the representations and warranties set forth in this Section 4.1 shall survive the sale name of the Mortgage Loans Company in the Subsidiary's share register. There is no Encumbrance on, over or affecting any of the Subsidiary shares nor is there any commitment to the Purchaser hereundergive or create such Encumbrance and no Person has claimed to be entitled to such Encumbrance.
Appears in 1 contract
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Purchaser, as of the date of execution and delivery hereof, that:
(1) The Seller is duly organized as a national banking association and is validly existing and in good standing under the laws of the United States of America and is duly authorized and qualified to transact any and all business contemplated by this Agreement to be conducted by the Seller in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such state, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to perform any of its other obligations under this Agreement in accordance with the terms thereof.
(2) The Seller has the requisite power and authority to sell each Mortgage Loan, and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary action on the part of the Seller the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties thereto, constitutes a legal, valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership receivership, supervisory powers of bank regulatory agencies generally and other similar laws relating to creditors' ’ rights generally or the rights of creditors of depository institutions, institutions the accounts of which are insured by the FDIC, Federal Deposit Insurance Corporation and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
(3) The execution and delivery of this Agreement by the Seller, the sale of the Mortgage Loans by the Seller under this Agreement, the consummation of any other of the transactions contemplated by this Agreement, and the fulfillment of or compliance with the terms thereof are in the ordinary course of business of the Seller and will not (a) result in a material breach of any term or provision of the charter or by-laws of the Seller or (b) materially conflict with, result in a material breach, violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Seller is a party or by which it may be bound, or (c) constitute a material violation of any statute, order or regulation applicable to the Seller of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Seller, other than such conflicts, breaches, violations, accelerations or defaults which, individually or on a cumulative basis, would not have a material adverse effect on the Seller and its subsidiaries, taken as a whole, or the consummation of the transactions contemplated by this Agreement; and the Seller is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Seller's ’s ability to perform or meet any of its obligations under this Agreement.
(4) No litigation is pending or, to the best of the Seller's ’s knowledge, threatened against the Seller that would prohibit the execution or delivery of, or performance under, this Agreement by the Seller.
(5) The Seller is a member of MERS in good standing, and will comply in all material respects with the rules and procedures of MERS in connection with the servicing of the MERS Mortgage Loans for as long as such Mortgage Loans are registered with MERS.
(b) The Seller hereby assigns, transfers makes the representations and conveys warranties set forth in Schedule B hereto to the Purchaser, as of the Closing Date, or if so specified therein, as of the Cut-off Date.
(c) Upon discovery by either of the parties hereto of a breach of a representation or warranty made pursuant to Schedule B hereto that materially and adversely affects the interests of the Purchaser all in any Mortgage Loan, the party discovering such breach shall give prompt notice thereof to the other party. The Seller hereby covenants that within 90 days of the earlier of its rights discovery or its receipt of written notice from the Purchaser of a breach of any representation or warranty made pursuant to Schedule B hereto which materially and adversely affects the interests of the Purchaser in any Mortgage Loan, it shall cure such breach in all material respects, and if such breach is not so cured, shall, (i) if such 90-day period expires prior to the second anniversary of the Closing Date, remove such Mortgage Loan (a “Deleted Mortgage Loan”) from the pool of mortgages listed on Schedule B hereto and substitute in its place a Substitute Mortgage Loan, in the manner and subject to the conditions set forth in this Section; or (ii) repurchase the affected Mortgage Loan or Mortgage Loans from the Purchaser at the Mortgage Loan Purchase Price in the manner set forth below. With respect to the representations and warranties described in this Section which are made to the best of the Seller’s knowledge, if it is discovered by either the Seller or the Purchaser that the substance of such representation and warranty is inaccurate and such inaccuracy materially and adversely affects the value of the related Mortgage Loan or the interests of the Purchaser therein, notwithstanding the Seller’s lack of knowledge with respect to the substance of such representation or warranty, such inaccuracy shall be deemed a breach of the applicable representation or warranty. With respect to any Substitute Mortgage Loan or Loans, the Seller shall deliver to the Trustee or to the Custodian on its behalf the Mortgage Note, the Mortgage, the related assignment of the Mortgage, and such other documents and agreements as are required by Section 3.1, with the Mortgage Note endorsed and the Mortgage assigned as required by Section 3.1. No substitution is permitted to be made in any calendar month after the Determination Date for such month. Scheduled Payments due with respect to Substitute Mortgage Loans includingin the month of substitution will be retained by the Seller. Upon such substitution, without limitationthe Substitute Mortgage Loan or Loans shall be subject to the terms of this Agreement in all respects, and the Seller shall be deemed to have made with respect to such Substitute Mortgage Loan or Loans, as of the date of substitution, the representations and warranties of FHHLC made pursuant to MLPA I, together Schedule B hereto with all rights of the Seller respect to require FHHLC to cure any breach thereof or to repurchase or substitute for any affected such Mortgage Loan in accordance with MLPA I. Loan. It is understood and agreed that the obligation under MLPA I this Agreement of FHHLC the Seller to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy, which may be enforced solely remedy against FHHLC and not the Seller, Seller respecting such breach available to the Purchaser on its behalf. The representations and warranties contained in this Agreement shall not be construed as a warranty or guaranty by the Seller as to the future payments by any Mortgagor. It is understood and agreed that the representations and warranties set forth in this Section 4.1 shall survive the sale of the Mortgage Loans to the Purchaser hereunder.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (First Horizon Asset Sec Mort Pass THR Certs Ser 2007-6)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Purchaser, other parties hereto as of the date of execution and delivery hereof, Closing Date that:
(1a) The Seller is has been duly organized as a national banking association and is validly existing as a limited liability company in good standing under the laws of the United States of America Florida, with full power and is duly authorized authority to own its assets and qualified to transact any and all conduct its business contemplated by this Agreement to be conducted by the Seller in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such state, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to perform any of its other obligations under this Agreement in accordance with the terms thereofas presently being conducted.
(2b) The Seller has the requisite full entity power and authority to sell each Mortgage Loan, execute and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary action on the part of the Seller to perform its obligations hereunder, and the execution, delivery and performance of this Agreement; and Agreement (including all instruments of transfer to be delivered pursuant to this Agreement, assuming the due authorization, execution and delivery thereof ) by the other parties thereto, Seller and the consummation of the transactions contemplated hereby have been duly and validly authorized.
(c) This Agreement constitutes a legal, valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except that (a) the as enforceability thereof may be limited by applicable bankruptcy, insolvency, moratoriumreorganization, receivership and moratorium or other similar laws relating to now or hereafter in effect affecting the enforcement of creditors' ’ rights generally or of creditors of depository institutions, the accounts of which are insured by the FDIC, in general and (b) the remedy of specific performance and injunctive and other forms of equitable relief except as such enforceability may be subject to equitable defenses and to the discretion limited by general principles of the court before which any equity (whether considered in a proceeding therefor may be broughtat law or in equity).
(3d) The None of the execution and delivery of this Agreement by the SellerAgreement, the sale of the Mortgage Loans by the Seller under this AgreementSeller, the consummation of any other of the transactions contemplated by this Agreementhereby, and or the fulfillment of or compliance with the terms thereof are in the ordinary course and conditions of business of the Seller and this Agreement will not (a) result in a material breach of any term or provision of the charter or by-laws of the Seller or (b) materially conflict with, result in a material breach, violation or acceleration of, with or result in a material default underbreach of any of the terms, the terms certificate of incorporation, bylaws or any other material legal restriction or any agreement or instrument to which the Seller is now a party or by which it may be is bound, or (c) constitute a material default or result in the violation of any statutelaw, rule, regulation, order, judgment or decree to which the Seller or its property is subject, or impair the ability of the Issuing Entity to realize on the Mortgage Loans, or impair the value of the Mortgage Loans.
(e) No consent, approval, authorization or order of any court or regulation applicable to governmental agency or body is required for the execution, delivery and performance by the Seller of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Seller, other than such conflicts, breaches, violations, accelerations or defaults which, individually or on a cumulative basis, would not have a material adverse effect on compliance by the Seller and its subsidiaries, taken with this Agreement or the sale of the Mortgage Loans as a whole, or evidenced by the consummation of the transactions contemplated by this Agreement; and , or if required, such consent, approval, authorization or order has been obtained prior to the related Closing Date.
(f) There is no action, suit, proceeding or investigation pending or to its knowledge threatened against the Seller is not which, either individually or in breach or violation of the aggregate, may result in any material indenture adverse change in the business, operations, financial condition, properties or other material agreement or instrumentassets of the Seller, or in violation any material impairment of the right or ability of the Seller to carry on its business substantially as now conducted, or which would draw into question the validity of this Agreement or the Mortgage Loans or of any statuteaction taken or contemplated herein, order or regulation which would be likely to impair materially the ability of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Seller's ability Seller to perform or meet any under the terms of its obligations under this Agreement.
(4g) No litigation is pending orThe transfer, assignment and conveyance of the Mortgage Loans by the Seller pursuant to this Agreement are not subject to the best of the Seller's knowledge, threatened against the Seller that would prohibit the execution bulk transfer or delivery of, or performance under, this Agreement by the Sellerany similar statutory provisions in effect in any applicable jurisdiction.
(bh) The Seller hereby assigns, transfers is solvent and conveys to the Purchaser all of its rights with respect to the Mortgage Loans including, without limitation, the representations and warranties of FHHLC made pursuant to MLPA I, together with all rights of the Seller to require FHHLC to cure any breach thereof or to repurchase or substitute for any affected Mortgage Loan in accordance with MLPA I. It is understood and agreed that the obligation under MLPA I of FHHLC to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy, which may be enforced solely against FHHLC and not the Seller, respecting such breach available to the Purchaser on its behalf. The representations and warranties contained in this Agreement shall not be construed as a warranty or guaranty by the Seller as to the future payments by any Mortgagor. It is understood and agreed that the representations and warranties set forth in this Section 4.1 shall survive the sale of the Mortgage Loans will not cause the Seller to become insolvent. The sale of the Mortgage Loans is not undertaken to hinder, delay or defraud any of the Seller’s creditors.
(i) The consideration received by the Seller upon the sale of the Mortgage Loans under this Agreement constitutes fair consideration and reasonably equivalent value for the Mortgage Loans.
(j) The Seller has determined that the disposition of the Mortgage Loans from Seller to Depositor pursuant to this Agreement will be afforded sale treatment for accounting purposes, all on a non-consolidated basis.
(k) The Seller has not transferred the Mortgage Loans to the Purchaser hereunderDepositor with any intent to hinder, delay or defraud any of its creditors.
(l) The Seller has not dealt with any broker, investment banker, agent or other Person that may be entitled to any commission or compensation in the connection with the sale of the Mortgage Loans.
(m) Immediately prior to the transfer by the Seller to the Depositor of each Mortgage Loan, the Seller had good and equitable title to each Mortgage Loan, subject to no prior lien, claim, participation interest, mortgage, security interest, pledge, charge or other encumbrance or other interest of any nature. On and after the transfer by the Seller to the Depositor of each Mortgage Loan, the Depositor will have good and equitable title to each Mortgage Loan, subject to no prior lien, claim, participation interest, mortgage, security interest, pledge, charge or other encumbrance or other interest of any nature.
(n) None of this Agreement, the information set forth in the Mortgage Loan Schedules attached hereto and the information contained in the related electronic data file delivered to the Master Servicer by the Seller, nor any statement, report or other document furnished or to be furnished by or on behalf of the Seller pursuant to this Agreement or in connection with the transactions contemplated hereby, contains any untrue statement of material fact or omits to state a material fact necessary to make the statements contained therein not misleading.
(o) The information about the Seller under the heading “The Sponsor” in the Prospectus relating to the Seller, as of the respective dates of the preliminary prospectus supplement and the prospectus supplement, and as of the Closing Date, does not include an untrue statement of a material fact and does not omit to state a material fact, with respect to the statements made, necessary in order to make the statements in light of the circumstances under which they were made not misleading.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (First NLC Securitization, Inc.)
Representations and Warranties of the Seller. Xxxxxx, Bean & Xxxxxxxx Mortgage Corp., in its capacity as Seller (for the purposes of this Section 3.01 only, the “Company”), represents, warrants and covenants to the Purchaser that as of each Closing Date or as of such date specifically provided herein:
(a) The Seller hereby represents and warrants to the PurchaserCompany is a corporation duly organized, as of the date of execution and delivery hereof, that:
(1) The Seller is duly organized as a national banking association and is validly existing and in good standing under the laws of the United States jurisdiction of America its incorporation and has all licenses necessary to carry out its business as now being conducted, and is duly authorized licensed and qualified to transact any business in and all business contemplated by this Agreement to be conducted by is in good standing under the Seller in any laws of each state in which a 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 andhas been made upon the Company by any such state, and in any event, event the Company is in compliance with the doing business laws of any such state, state to the extent necessary to ensure its ability to enforce the enforceability of each Mortgage Loan and to perform any the servicing of its other obligations under this Agreement the Mortgage Loans in accordance with the terms thereof.of this Agreement;
(2b) The Seller Company has the requisite full power and authority and legal right to hold, transfer and convey each Mortgage Loan, to sell each Mortgage Loan, Loan and to execute, deliver and perform, and to enter into and consummate the all transactions contemplated by this Agreement and to conduct its business as presently conducted; the Company has duly authorized by all necessary action on the part of the Seller the execution, delivery and performance of this Agreement; Agreement and any agreements contemplated hereby, has duly executed and delivered this Agreement and any agreements contemplated hereby, and this AgreementAgreement and each Assignment of Mortgage to the Purchaser and any agreements contemplated hereby, assuming constitute the due authorization, execution and delivery thereof by the other parties thereto, constitutes a legal, valid and binding obligation obligations of the SellerCompany, enforceable against the Seller it in accordance with its termstheir respective terms , except that (a) the as such enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership reorganization and other similar laws relating to laws, and by equitable principles affecting the enforceability of the rights of creditors' rights generally or of creditors of depository institutions, the accounts of which are insured ; and all requisite corporate action has been taken by the FDIC, Company to make this Agreement and (b) all agreements contemplated hereby valid and binding upon the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.Company in accordance with their terms;
(3c) The Neither the execution and delivery of this Agreement by the SellerAgreement, the sale of the Mortgage Loans by to the Seller under this AgreementPurchaser, the consummation of any other of the transactions contemplated by this Agreementhereby, and nor the fulfillment of or compliance with the terms thereof and conditions of this Agreement will conflict with any of the terms, conditions or provisions of the Company’s charter or by-laws or materially conflict with or result in a material breach of any of the terms, conditions or provisions of any legal restriction or any agreement or instrument to which the Company is now a party or by which it is bound, or constitute a default or result in an acceleration under any of the foregoing, or result in the material violation of any law, rule, regulation, order, judgment or decree to which the Company or its property is subject;
(d) There is no litigation, suit, proceeding or investigation pending or threatened, or any order or decree outstanding, that is reasonably likely to have a material adverse effect on the sale of the Mortgage Loans, the execution, delivery, performance or enforceability of this Agreement, or which is reasonably likely to have a material adverse effect on the financial condition of the Company;
(e) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Company of or compliance by the Company with this Agreement, except for consents, approvals, authorizations and orders that have been obtained;
(f) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller Company, and will not (a) result in a material breach of any term or provision the transfer, assignment and conveyance of the charter Mortgage Notes and the Mortgages by the Company pursuant to this Agreement are not subject to bulk transfer or by-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 of and regulations, and in all material respects proper and prudent in the Seller or (b) materially conflict withmortgage origination and servicing business. With respect to escrow deposits and payments that the Company is entitled to collect, result all such payments are in a material breach, violation or acceleration the possession of, or result under the control of, the Company, and there exist no deficiencies in a material default underconnection 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 any other material agreement or instrument the related Mortgage Note. Any interest required to which the Seller is a party or by which it may be bound, or (c) constitute a material violation of any statute, order or regulation applicable paid pursuant to the Seller of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Seller, other than such conflicts, breaches, violations, accelerations or defaults which, individually or on a cumulative basis, would not have a material adverse effect on the Seller state and its subsidiaries, taken as a whole, or the consummation of the transactions contemplated by this Agreement; local law has been properly paid and the Seller is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Seller's ability to perform or meet any of its obligations under this Agreement.credited;
(4) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller that would prohibit the execution or delivery of, or performance under, this Agreement by the Seller.
(bh) The Seller hereby assigns, transfers and conveys to the Purchaser all of its rights with respect to Company has not used selection procedures that identified the Mortgage Loans including, without limitation, as being less desirable or valuable than other comparable mortgage loans in the representations and warranties of FHHLC made pursuant to MLPA I, together with all rights of Company’s portfolio at the Seller to require FHHLC to cure any breach thereof or to repurchase or substitute for any affected Mortgage Loan in accordance with MLPA I. It is understood and agreed that the obligation under MLPA I of FHHLC to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy, which may be enforced solely against FHHLC and not the Seller, respecting such breach available to the Purchaser on its behalf. Cut-off Date;
(i) The representations and warranties contained in this Agreement shall not be construed as a warranty or guaranty by the Seller as to the future payments by any Mortgagor. It is understood and agreed that the representations and warranties set forth in this Section 4.1 shall survive Company will treat the sale of the Mortgage Loans to the Purchaser hereunderas a sale for reporting and accounting purposes and, to the extent appropriate, for federal income tax purposes;
(j) The Company is an approved seller/servicer of residential mortgage loans for 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 Xxxxxxx Mac, and no event has occurred that would make the Company unable to comply with eligibility requirements or that would require notification to 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. The Company is solvent and the sale of the Mortgage Loans will not cause the Company to become insolvent. The sale of the Mortgage Loans is not undertaken with the intent to hinder, delay or defraud any of the Company’s creditors;
(l) No statement, tape, diskette, form, report or other document prepared by, or on behalf of, the Company pursuant to this Agreement or in connection with the transactions contemplated hereby, contains or will contain any statement that is or will be inaccurate or misleading in any material respect. The Company has prudently originated and underwritten each Mortgage Loan;
(m) [Reserved];
(n) The Company has delivered to the Purchaser financial statements as to its last two complete fiscal years. All such financial statements fairly present the pertinent results of operations and changes in 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 GAAP consistently applied throughout the periods involved, except as set forth in the notes thereto. There has been no change in the business, operations, financial condition, properties or assets of the Company since the date of the Company’s financial statements that would have a material adverse effect on its ability to perform its obligations under this Agreement;
(o) 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 sale of the Mortgage Loans; and
(p) The Company is a member of MERS in good standing, and will comply in all material respects with the rules and procedures of MERS in connection with the servicing of the MERS Mortgage Loans for as long as such Mortgage Loans are registered with MERS.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (TBW Mortgage-Backed Trust Series 2006-4)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Purchaser, Depositor that as of the date of execution and delivery hereof, hereof that:
(1i) The Seller is a Delaware corporation duly organized as a national banking association and is organized, validly existing and in good standing under the laws of the United States of America governing its creation and is duly authorized existence and qualified to transact any and all business contemplated by this Agreement to be conducted by the Seller in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such state, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to perform any of its other obligations under this Agreement in accordance with the terms thereof.
(2) The Seller has the requisite full corporate power and authority to sell each Mortgage Loanown its property, and to execute, deliver and perform, carry on its business as presently conducted and to enter into and consummate perform its obligations under this Agreement;
(ii) The execution and delivery by the Seller of this Agreement have been duly authorized by all necessary corporate action on the part of the Seller; none of the execution and delivery of this Agreement, the consummation of the transactions herein contemplated or compliance with the provisions hereof will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the federal stock charter or bylaws of the Seller;
(iii) The execution, delivery and performance by the Seller of this Agreement and the consummation of the transactions contemplated hereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) This Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Depositor, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its terms except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement and has duly authorized by all necessary action on or (B) with respect to any other matter which in the part judgment of the Seller the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties thereto, constitutes a legal, valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except that (a) the enforceability thereof may will be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating determined adversely to creditors' rights generally or of creditors of depository institutions, the accounts of which are insured by the FDIC, and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
(3) The execution and delivery of this Agreement by the Seller, the sale of the Mortgage Loans by the Seller under this Agreement, the consummation of any other of the transactions contemplated by this Agreement, and the fulfillment of or compliance with the terms thereof are in the ordinary course of business of the Seller and will not (a) result in a material breach of any term or provision of the charter or by-laws of the Seller or (b) materially conflict with, result in a material breach, violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Seller is a party or by which it may be bound, or (c) constitute a material violation of any statute, order or regulation applicable if determined adversely to the Seller of any courtmaterially and adversely affect it or its business, regulatory bodyassets, administrative agency operations or governmental body having jurisdiction over the Sellercondition, other than such conflicts, breaches, violations, accelerations financial or defaults which, individually or on a cumulative basis, would not have a material adverse effect on the Seller and its subsidiaries, taken as a wholeotherwise, or the consummation of the transactions contemplated by this Agreement; and the Seller is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Seller's adversely affect its ability to perform or meet any of its obligations under this Agreement.
(4) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller that would prohibit the execution or delivery of, or performance under, this Agreement by the Seller.
(b) The Seller hereby assigns, transfers representations and conveys to warranties of the Purchaser all of its rights Transferor with respect to the Mortgage Loans includingcontained in the Transfer Agreement were made as of the date of the Transfer Agreement and brought forward to the Closing Date pursuant to the Bring Down Letter. The representations and warranties of the Transferor with respect to the Mortgage Loans contained in the Bring Down Letter were made as of the Closing Date. To the extent that any fact, without limitationcondition or event with respect to a Mortgage Loan constitutes a breach of both (i) a representation or warranty of the Transferor under the Transfer Agreement or Bring Down Letter and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than a breach by the Seller of the representations and warranties made pursuant to Sections 1.04(b)(vii) and 1.04(b)(viii)) shall be the right to enforce the obligations of the Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(vii) and 1.04(b)(viii) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of FHHLC made pursuant to MLPA I, together with all rights of the Seller to require FHHLC to cure any breach thereof or to repurchase or substitute for any affected Mortgage Loan in accordance with MLPA I. It is understood and agreed that the obligation under MLPA I of FHHLC to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy, which may be enforced solely against FHHLC and not the Seller, respecting such breach available to the Purchaser on its behalf. The representations and warranties contained in this Agreement shall not be construed as a warranty or guaranty by the Seller as to the future payments by any Mortgagor. It is understood and agreed that Section 1.04(b) (other than the representations and warranties set forth made pursuant to Sections 1.04(b)(vii) and 1.04(b)(viii)) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the Transferor in this Section 4.1 the Transfer Agreement or Bring Down Letter. The Seller shall survive have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the sale Mortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the Transferor in the Transfer Agreement or Bring Down Letter, without regard to whether the Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the Transferor fulfills its obligations under the provisions of the Transfer Agreement and the Bring Down Letter by substituting for the affected Mortgage Loan a mortgage loan which is not a Replacement Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Mortgage Loans to the Purchaser Depositor hereunder, as to each, that as of May 31, 2005:
(i) The information set forth with respect to the Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Mortgage Loans, and the information with respect to each Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) As of the Closing Date, no Mortgage Loan is in foreclosure;
(iii) As of the Closing Date, each Mortgage Loan is a "qualified mortgage" within the meaning of Section 860G of the Code (as determined without regard to Treas.
Appears in 1 contract
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Purchaser, Depositor that as of the date of execution and delivery hereof, hereof that:
(1i) The Seller is a Delaware corporation duly organized as a national banking association and is organized, validly existing and in good standing under the laws of the United States of America governing its creation and is duly authorized existence and qualified to transact any and all business contemplated by this Agreement to be conducted by the Seller in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such state, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to perform any of its other obligations under this Agreement in accordance with the terms thereof.
(2) The Seller has the requisite full corporate power and authority to sell each Mortgage Loanown its property, and to execute, deliver and performcarry on its business as presently conducted, and to enter into and consummate perform its obligations under this Agreement;
(ii) The execution and delivery by the Seller of this Agreement have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and delivery of this Agreement, nor the consummation of the transactions herein contemplated, nor compliance with the provisions hereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the federal stock charter or bylaws of the Seller;
(iii) The execution, delivery and performance by the Seller of this Agreement and the consummation of the transactions contemplated hereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) This Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Depositor, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its terms except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement and has duly authorized by all necessary action on or (B) with respect to any other matter which in the part judgment of the Seller the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties thereto, constitutes a legal, valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except that (a) the enforceability thereof may will be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating determined adversely to creditors' rights generally or of creditors of depository institutions, the accounts of which are insured by the FDIC, and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
(3) The execution and delivery of this Agreement by the Seller, the sale of the Mortgage Loans by the Seller under this Agreement, the consummation of any other of the transactions contemplated by this Agreement, and the fulfillment of or compliance with the terms thereof are in the ordinary course of business of the Seller and will not (a) result in a material breach of any term or provision of the charter or by-laws of the Seller or (b) materially conflict with, result in a material breach, violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Seller is a party or by which it may be bound, or (c) constitute a material violation of any statute, order or regulation applicable if determined adversely to the Seller of any courtmaterially and adversely affect it or its business, regulatory bodyassets, administrative agency operations or governmental body having jurisdiction over the Sellercondition, other than such conflicts, breaches, violations, accelerations financial or defaults which, individually or on a cumulative basis, would not have a material adverse effect on the Seller and its subsidiaries, taken as a wholeotherwise, or the consummation of the transactions contemplated by this Agreement; and the Seller is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Seller's adversely affect its ability to perform or meet any of its obligations under this Agreement.
(4) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller that would prohibit the execution or delivery of, or performance under, this Agreement by the Seller.
(b) The Seller hereby assigns, transfers representations and conveys to warranties of the Purchaser all of its rights Transferor with respect to the Mortgage Loans includingin the Transfer Agreement were made as of the date of the Transfer Agreement. To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of both (i) a representation or warranty of the Transferor under the Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the only right or remedy of the Depositor shall be the right to enforce the obligations of the Transferor under any applicable representation or warranty made by it. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the Transferor in the Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Mortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the Transferor in the Transfer Agreement, without limitationregard to whether the Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the Transferor fulfills its obligations under the provisions of the Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Replacement Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Mortgage Loans to the Depositor hereunder, as to each, that:
(i) The information set forth with respect to the Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Mortgage Loans, and the information with respect to each Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There is no Mortgage Loan underlying the security that was originated on or after October 1, 2002, which is secured by property located in the state of Georgia;
(iii) As of the Closing Date, no Mortgage Loan is in foreclosure;
(iv) As of the Closing Date, each Mortgage Loan is a "qualified mortgage" within the meaning of Section 860G of the Code and Treas. Reg.
Section 1. 860G-2; and
(v) As to the servicing of the Mortgage Loans, the representations and warranties of FHHLC made pursuant to MLPA Icontained in Sections 7.02(iii), together with all rights (iv), (ix), (xvii), (xxiii) and (xxxiv) of the Seller to require FHHLC to cure any breach thereof or to repurchase or substitute for any affected Mortgage Loan in accordance with MLPA I. It is understood and agreed that Transfer Agreement are incorporated herein by reference as of the obligation under MLPA I of FHHLC to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy, which may be enforced solely against FHHLC and not the Seller, respecting such breach available to the Purchaser on its behalf. The representations and warranties contained in this Agreement shall not be construed as a warranty or guaranty by the Seller as to the future payments by any MortgagorClosing Date. It is understood and agreed that the representations and warranties set forth in this Section 4.1 1.04(b) herein shall survive the sale delivery of the Mortgage Loans Files and the Assignment of Mortgage of each Mortgage Loan to the Purchaser hereunderDepositor. Upon discovery by either the Seller or the Depositor of a breach of any of the foregoing representations and warranties that adversely and materially affects the value of the related Mortgage Loan, and, that does not also constitute a breach of a representation or warranty of the Transferor in the Transfer Agreement, the party discovering such breach shall give prompt written notice to the other party. Within 60 days of the discovery of any such breach, the Seller shall either (a) cure such breach in all material respects, (b) repurchase such Mortgage Loan or any property acquired in respect thereof from the Depositor at the applicable Purchase Price or (c) within the two year period following the Closing Date, substitute a Replacement Mortgage Loan for the affected Mortgage Loan. The Seller indemnifies and holds the Trust Fund, the Trustee, the Depositor, the Servicer, the NIMs Insurer and each Certificateholder harmless against any and all taxes, claims, losses, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, fees and expenses that the Trust Fund, the Trustee, the Depositor, the Servicer, the NIMs Insurer and any Certificateholder may sustain in connection with any actions of the Seller relating to a repurchase of a Mortgage Loan other than in compliance with the terms of this Section 2.03 of the Pooling Agreement and this Agreement, to the extent that any such action causes (i) any federal or state tax to be imposed on the Trust Fund or any REMIC provided for in the Pooling Agreement, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup date" under Section 860(d)(1) of the Code, or (ii) any REMIC created in the Pooling Agreement to fail to qualify as a REMIC at any time that any Certificate is outstanding.
Appears in 1 contract
Samples: Mortgage Loan Sale and Assignment Agreement (Merrill Lynch Mortgage Investors Inc)
Representations and Warranties of the Seller. The Seller -------------------------------------------- represents and warrants as follows:
(a) The Seller hereby represents and warrants to the Purchaseris a limited liability company duly organized, as of the date of execution and delivery hereof, that:
(1) The Seller is duly organized as a national banking association and is validly existing and in good standing under the laws of the United States of America Delaware and is duly authorized and qualified to transact any do business, and is in good standing, in all states where the nature of its business contemplated by this Agreement to be conducted or the ownership or use of property requires such qualification.
(b) The execution, delivery and performance by the Seller in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification andof this Agreement, in any eventthe NewCo Agreements, is in compliance with the doing business laws of any such state, to Ownership Document and all other instruments and documents delivered by the extent necessary to ensure its ability to enforce each Mortgage Loan Seller hereunder and to perform any of its other obligations under this Agreement in accordance with the terms thereof.
(2) The Seller has the requisite power and authority to sell each Mortgage Loanthereunder, and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement hereby and has thereby, and the Seller's use of the proceeds of Purchases, are within the Seller's limited liability company powers, have been duly authorized by all necessary action on corporate action, do not contravene (i) the part Seller's Articles of the Seller the execution, delivery and performance of this Agreement; and this Organization or Operating Agreement, assuming the due authorization, execution and delivery thereof by the other parties thereto, constitutes a legal, valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except that (aii) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally law or of creditors of depository institutions, the accounts of which are insured by the FDIC, and (biii) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
(3) The execution and delivery of this Agreement by the Seller, the sale of the Mortgage Loans by the Seller under this Agreement, the consummation provision of any other loan or credit agreement, indenture, mortgage, deed of the transactions contemplated by this Agreementtrust, and the fulfillment of or compliance with the terms thereof are in the ordinary course of business of the Seller and will not (a) result in a material breach of any term or provision of the charter or by-laws of the Seller or (b) materially conflict with, result in a material breach, violation or acceleration of, or result in a material default under, the terms of any other material security agreement or instrument similar agreement to which the Seller is a party or by which it its property may be bound, and do not result in or require the creation of any lien, security interest or other charge or encumbrance upon or with respect to any of its properties, except as contemplated by this Agreement or the Ownership Document; and no transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(c) constitute a material violation of any statute, order No authorization or regulation applicable to the Seller of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Seller, other than such conflicts, breaches, violations, accelerations or defaults which, individually or on a cumulative basis, would not have a material adverse effect on the Seller and its subsidiaries, taken as a whole, or the consummation of the transactions contemplated by this Agreement; and the Seller is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Seller's ability to perform or meet any of its obligations under this Agreement.
(4) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller that would prohibit the execution or delivery approval of, or performance underapplication or notice to or filing with, this Agreement by the Seller.
(b) The Seller hereby assigns, transfers and conveys to the Purchaser all of its rights with respect to the Mortgage Loans any governmental entity including, without limitation, the representations Public Service Commission of Wisconsin, the Minnesota Public Utilities Commission, the Illinois Commerce Commission, the Federal Energy Regulatory Commission and warranties the Securities and Exchange Commission is required for the due execution, delivery and performance by the Seller of FHHLC this Agreement, the NewCo Agreements, the Ownership Document or any other document or instrument to be delivered hereunder or thereunder except for (i) the filing of the UCC Financing Statements referred to in Section 3.03 and (ii) the approval of the Public Service Commission of Wisconsin, the Minnesota Public Utilities Commission, the Illinois Commerce Commission and the Securities and Exchange Commission, all of which, at the time required in Section 3.01, shall have been duly made pursuant and shall be in full force and effect.
(d) Each of this Agreement and the NewCo Agreements constitutes, and the Ownership Document when delivered hereunder shall constitute, the legal, valid and binding obligation of the Seller enforceable against the Seller in accordance with their respective terms.
(e) The balance sheet as of , 1999, certified by the ------------ Seller's chief financial officer, a copy of which has been furnished to MLPA Ithe Agent, together with all rights fairly presents the financial condition of the Seller as of the date of such balance sheet. Since , 1999, there has been no material ---------- adverse change in the financial condition or operations of the Seller.
(i) There are no actions, suits or proceedings pending, or to the knowledge of the Seller threatened, against or affecting the Seller or any subsidiary, or the property of the Seller or of any subsidiary, in any court, or before any arbitrator of any kind, or before or by any governmental body, which, if determined adversely to the Seller, would materially adversely affect the financial condition or operations of the Seller or the ability of the Seller to require FHHLC perform its obligations under this Agreement, the NewCo Agreements or the Ownership Document; (ii) there is no pending or threatened litigation which purports to cure affect the legality, validity or enforceability of this Agreement or the NewCo Agreements or any breach thereof transaction contemplated hereby or thereby or which seeks to repurchase enjoin or substitute challenge any proposed use of the proceeds of the Purchases hereunder; and (iii) the Seller is not in default with respect to any order of any court, arbitrator or governmental body except for defaults with respect to orders of governmental agencies which defaults are not material to the business or operations of the Seller.
(g) No proceeds of any affected Mortgage Loan Purchase will be used (i) for a purpose which violates, or would be inconsistent with, regulation T, U or X promulgated by the Board of Governors of the Federal Reserve System from time to time or (ii) to acquire any security in any transaction which is subject to Sections 13 and 14 of the Securities Exchange Act of 1934, as amended.
(i) The Receivables Pool is composed solely of Eligible Receivables, except for such Receivables as shall not, in the aggregate, constitute a material portion of the Receivables Pool; and (ii) upon each Purchase or reinvestment, the Owner making such Purchase or reinvestment will acquire a valid and perfected first priority undivided percentage ownership interest to the extent of the pertinent Share in each Pool Receivable then existing or thereafter arising and in the Related Security and Collections with respect thereto free and clear of Adverse Claims; and no effective financing statement or other instrument similar in effect covering any Pool Receivable or the Related Security or Collections with respect thereto is on file in any recording office, except (A) those filed in favor of CNA, as Agent, in accordance with MLPA I. It this Agreement, the NewCo Agreements, and the Originator Agreements or (B) UCC Financing Statements, if any, filed in favor of the Seller, as secured party.
(i) Each Investor Report (if prepared by the Seller or any Person designated by the Seller, or to the extent that information contained therein is understood supplied by the Seller or any Person designated by the Seller), information, exhibit, financial statement, document, book, record or report furnished at any time by the Seller to the Agent or any Owner in connection with this Agreement or the Originator Agreement is accurate in all material respects as of its date and agreed (except as otherwise disclosed to the Agent or such Owner, as the case may be, at or prior to the time furnished) as of the date so furnished, and no such document contains, as of its date or (except as otherwise disclosed to the Agent or such Owner, as the case may be, at or prior to the time furnished) as of the date so furnished, any material misstatement of fact or omits to state a material fact or any fact necessary to make the statements contained therein not materially misleading.
(j) The chief place of business and chief executive office of the Seller are located at 000 Xxxx Xxxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxx 00000-0000, and the offices where the Seller keeps all its books, records and documents evidencing Pool Receivables or the related Contracts are located at 000 Xxxx Xxxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxx 00000-0000.
(k) The Pool Receivables are accounts receivable representing all or part of the sale price of merchandise, insurance or services within the meaning of Section 3(c)(5) of the Investment Company Act of 1940, as amended; the nature of the Pool Receivables is such that their purchase with the obligation under MLPA I proceeds of FHHLC to curenotes would constitute a "current transaction" within the meaning of Section 3(a)(3) of the Securities Act of 1933, repurchase or replace any Mortgage Loan as amended.
(l) The Joint Expenses Ratio is not in excess of 25%.
(m) The NewCo Agreements are the only agreement pursuant to which the Seller purchases receivables from any Originator or any SPV and each of the Receivables sold hereunder has been purchased under one of the NewCo Agreements. The Seller has given the Agent true, correct and complete copies of the NewCo Agreements and the Originator Agreements, each of which is in full force and effect, and there are no written or oral understandings which would vary, waive or otherwise modify the terms thereof except those which have been approved in writing by the Agent.
(n) The Seller has no subsidiaries and does not own or hold, directly or indirectly, any capital stock or equity security of, or any equity interest in, any other Person and has conducted no other business except for the execution and delivery of the NewCo Agreements, this Agreement, the acquisition of the Pool Receivables and sales thereof contemplated thereunder and hereunder, and such other activities as are incidental to the foregoing.
(o) The Seller is operated as an entity separate from the Originators and each other member of the Parent Group and, towards such end, the Seller:
(i) maintains books and records of account (including financial records) which are separate from each other member of the Parent Group and maintains its assets in a breach has occurred manner which facilitates their identification and is continuing shall constitute segregation from those of any other member of the sole remedyParent Group;
(ii) maintains its assets, funds and transactions separate from those of any member of the Parent Group, reflecting such assets and transactions in financial statements separate and distinct from those of such members, and evidencing such assets, funds and transactions by appropriate entries in the books and records referred to in clause (i) above, and providing for its own operating expenses and liabilities from its own assets and funds other than certain expenses and liabilities relating to basic corporate overhead which may be enforced solely against FHHLC allocated between the Seller and not the Parent Group;
(iii) conducts all intercompany transactions with all members of the Parent Group on an arm's length basis;
(iv) at all times enters into its contracts and otherwise holds itself out to the public under the Seller's own name as a legal entity separate and distinct from its Affiliates;
(v) holds such appropriate meetings or obtains such appropriate consents of its Board of Managers as are necessary to authorize all the Seller's actions required by law to be authorized by such Board of Managers, respecting keeping minutes of such breach available meetings and of meetings of its members and observing all other limited liability company formalities.
(p) The Seller has been adequately capitalized in light of its business and, on the date hereof, (i) is not "insolvent" (as such term is defined in the Bankruptcy Code), (ii) is able to pay its debts as they mature, and (iii) does not have unreasonably small capital for the business in which it is engaged.
(q) The Seller shall have given reasonably equivalent value to the Purchaser on its behalf. The representations and warranties contained SPVs in this Agreement shall not be construed as a warranty or guaranty by consideration for the transfer to the Seller as to the future payments by any Mortgagor. It is understood and agreed that the representations and warranties set forth in this Section 4.1 shall survive the sale of the Mortgage Loans to Receivables and Related Security and such transfer is not voidable under Sections 544, 545, 548, 549 or 724(a) of the Purchaser hereunderBankruptcy Code.
Appears in 1 contract
Samples: Receivables Purchase and Sale Agreement (Alliant Energy Corp)
Representations and Warranties of the Seller. The Seller represents, warrants and covenants to the Purchaser that as of each Closing Date or as of such date specifically provided herein:
(a) The Seller hereby represents and warrants to the Purchaseris a corporation duly organized, as of the date of execution and delivery hereof, that:
(1) The Seller is duly organized as a national banking association and is validly existing and in good standing under the laws of the United States State of America New Jersey and has all licenses necessary to carry out its business as now being conducted, and is duly authorized licensed and qualified to transact any business in and all business contemplated by this Agreement to be conducted by is in good standing under the Seller in any laws of each state in which a 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 andand no demand for such licensing or qualification has been made upon such Seller by any such state, and in any event, event such Seller is in compliance with the doing business laws of any such state, state to the extent necessary to ensure its ability to enforce the enforceability of each Mortgage Loan and to perform any the servicing of its other obligations under this Agreement the Mortgage Loans in accordance with the terms thereof.of this Agreement;
(2b) The Seller has the requisite full power and authority and legal right to hold, transfer and convey each Mortgage Loan, to sell each Mortgage Loan, Loan included in the related Mortgage Loan Package and to execute, deliver and perform, and to enter into and consummate the all transactions contemplated by this Agreement and to conduct its business as presently conducted, has duly authorized by all necessary action on the part of the Seller the execution, delivery and performance of this Agreement; Agreement and any agreements contemplated hereby, has duly executed and delivered this Agreement, assuming and any agreements contemplated hereby, and this Agreement and each Assignment of Mortgage to the due authorization, execution Purchaser and delivery thereof by the other parties theretoany agreements contemplated hereby, constitutes a legal, valid and binding obligation of the Seller, enforceable against the Seller it in accordance with its terms, except that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally or of creditors of depository institutions, the accounts of which are insured all requisite corporate action has been taken by the FDIC, Seller to make this Agreement and all agreements contemplated hereby valid and binding upon the Seller in accordance with their terms;
(bc) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion None of the court before which any proceeding therefor may be brought.
(3) The execution and delivery of this Agreement Agreement, the origination of the Mortgage Loans by the Seller, the sale of the Mortgage Loans by to the Seller under this AgreementPurchaser, the consummation of any other of the transactions contemplated by this Agreementhereby, and or the fulfillment of or compliance with the terms thereof are in the ordinary course and conditions of business this Agreement will conflict with any of the Seller and will not (a) terms, conditions or provisions of the Seller's charter or by-laws or materially conflict with or result in a material breach of any term or provision of the charter terms, conditions or by-laws of the Seller or (b) materially conflict with, result in a material breach, violation or acceleration of, or result in a material default under, the terms provisions of any other material legal restriction or any agreement or instrument to which the Seller is now a party or by which it may be is bound, or (c) constitute a default or result in an acceleration under any of the foregoing, or result in the material violation of any statutelaw, rule, regulation, order, judgment or decree to which the Seller or its property is subject or impair the ability of the Purchaser to realize on the Mortgage Loans or impair the value of the Mortgage Loans;
(d) Each Mortgage Note, each Mortgage, each Assignment of Mortgage and any other documents required pursuant to this Agreement to be delivered to the Purchaser or its designee, or its assignee for each Mortgage Loan, have been, on or before the related Closing Date, delivered to the Purchaser or its designee, or its assignee;
(e) There is no litigation, suit, proceeding or investigation pending or threatened, or any order or regulation applicable decree outstanding, with respect to the Seller of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Seller, other than such conflicts, breaches, violations, accelerations or defaults which, individually either in one instance or on a cumulative basisin the aggregate, would not is reasonably likely to have a material adverse effect on the sale or servicing of the Mortgage Loans, the execution, delivery, performance or enforceability of this Agreement, or which is reasonably likely to have a material adverse effect on the financial condition of the Seller.
(f) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Seller of or compliance by the Seller with this Agreement, or the sale of the Mortgage Loans and its subsidiaries, taken as a whole, delivery of the Mortgage Files to the Purchaser or the consummation of the transactions contemplated by this Agreement; , except for consents, approvals, authorizations and orders which have been obtained;
(g) The consummation of the transactions contemplated by this Agreement is in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to bulk transfer or any similar statutory provisions in effect in any applicable jurisdiction;
(h) The origination, collection and servicing practices used by the Seller, any Originator and Prior Servicers, with respect to each Mortgage Note and Mortgage have been legal and in accordance with applicable laws and regulations, and in all material respects proper and prudent in the mortgage origination and servicing business. With respect to escrow deposits and payments that the Seller is not entitled to collect, all such payments are in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Seller's ability to perform or meet any of its obligations under this Agreement.
(4) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller that would prohibit the execution or delivery possession of, or performance underunder the control of, this Agreement by the Seller., and there exist no deficiencies in connection therewith for which customary arrangements for repayment thereof have not been made. All escrow payments have been collected in full compliance with state and federal law and the provisions of the related Mortgage Note and Mortgage. 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;
(bi) The Seller hereby assigns, transfers and conveys used no adverse selection procedures in selecting from among the outstanding first lien residential mortgage loans owned by it which were available for inclusion in the sale to the Purchaser all of its rights with respect to the Mortgage Loans including, without limitation, the representations and warranties of FHHLC made pursuant to MLPA I, together with all rights of the Purchaser;
(j) The Seller to require FHHLC to cure any breach thereof or to repurchase or substitute for any affected Mortgage Loan in accordance with MLPA I. It is understood and agreed that the obligation under MLPA I of FHHLC to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy, which may be enforced solely against FHHLC and not the Seller, respecting such breach available to the Purchaser on its behalf. The representations and warranties contained in this Agreement shall not be construed as a warranty or guaranty by the Seller as to the future payments by any Mortgagor. It is understood and agreed that the representations and warranties set forth in this Section 4.1 shall survive will treat the sale of the Mortgage Loans to the Purchaser hereunderas a sale for reporting and accounting purposes and, to the extent appropriate, for federal income tax purposes;
(k) Seller is an approved seller/servicer of residential mortgage loans for Xxxxxx Xxx/FHLMC and HUD, with such facilities, procedures and personnel necessary for the sound servicing of such mortgage loans. The Seller is duly qualified, licensed, registered and otherwise authorized under all applicable federal, state and local laws, and regulations, if applicable, meets the minimum capital requirements set forth by the OCC, and is in good standing to sell mortgage loans to and service mortgage loans for Xxxxxx Mae/FHLMC and no event has occurred which would make Seller unable to comply with eligibility requirements or which would require notification to either Xxxxxx Xxx or FHLMC;
(l) The Seller 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. 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;
(m) No statement, tape, diskette, form, report or other document prepared by, or on behalf of, Seller pursuant to this Agreement or in connection with the transactions contemplated hereby, contains or will contain any statement that is or will be inaccurate or misleading in any material respect;
(n) The Seller acknowledges and agrees that the Servicing Fee represents reasonable compensation for performing such services and that the entire Servicing Fee shall be treated by the Seller, for accounting and tax purposes, as compensation for the servicing and administration of the Mortgage Loans pursuant to this Agreement; in the opinion of Seller, the consideration received by Seller upon the sale of the Mortgage Loans to Purchaser under this Agreement constitutes fair consideration for the Mortgage Loans under current market conditions.
(o) If requested by the Purchaser, the Seller has delivered to the Purchaser financial statements as to its last two complete fiscal years. All such financial statements fairly present the pertinent results of operations and changes in financial position for each of such periods and the financial position at the end of each such period of the Seller and its subsidiaries and have been prepared in accordance with GAAP consistently applied throughout the periods involved, except as set forth in the notes thereto. There has been no change in the business, operations, financial condition, properties or assets of the Seller since the date of the Seller's financial statements that would have a material adverse effect on its ability to perform its obligations under this Agreement;
(p) The Seller 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 sale of the Mortgage Loans; and
(q) The Seller is a member of MERS in good standing, and will comply in all material respects with the rules and procedures of MERS in connection with the servicing of the MERS Mortgage Loans for as long as such Mortgage Loans are registered with MERS.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (J.P. Morgan Mortgage Trust 2006-S1)
Representations and Warranties of the Seller. The Seller hereby represents, warrants and covenants with and to the Issuer, the Indenture Trustee, the Servicer, the Securities Insurer and the Securityholders as of the Closing Date:
(a) The Seller hereby represents is a corporation duly organized, validly existing, and warrants to the Purchaser, as of the date of execution and delivery hereof, that:
(1) The Seller is duly organized as a national banking association and is validly existing in good standing under the laws of the United States State of America Nevada and has all licenses necessary to carry on its business as now being conducted and is duly authorized licensed, qualified and qualified in good standing in each Mortgaged Property State if the laws of such state require licensing or qualification in order to transact any and all conduct business contemplated by this Agreement to be of the type conducted by the Seller in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with and perform its obligations as Seller hereunder; the doing business laws of any such state, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to perform any of its other obligations under this Agreement in accordance with the terms thereof.
(2) The Seller has the requisite power and authority to sell each Mortgage Loan, execute and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary action on the part of the Seller to perform in accordance herewith; the execution, delivery and performance of this Agreement; and Agreement (including all instruments of transfer to be delivered pursuant to this Agreement, assuming the due authorization, execution and delivery thereof ) by the other parties theretoSeller and the consummation of the transactions contemplated hereby have been duly and validly authorized by all necessary action of the Seller; this Agreement evidences the valid, constitutes a legal, valid binding and binding enforceable obligation of the Seller; and all requisite action has been taken by the Seller to make this Agreement valid, binding and enforceable against upon the Seller in accordance with its terms, except that (a) subject to the enforceability thereof may be limited by effect of bankruptcy, insolvency, moratoriumreorganization, receivership moratorium and other other, similar laws relating to or affecting creditors' rights generally or the application of creditors of depository institutionsequitable principles in any proceeding, the accounts of which are insured by the FDIC, and whether at law or in equity;
(b) All actions, approvals, consents, waivers, exemptions, variances, franchises, orders, permits, authorizations, rights and licenses required to be taken, given or obtained, as the remedy of specific performance and injunctive and case may be, by or from any federal, state or other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which governmental authority or agency (other than any proceeding therefor may be brought.
(3) The execution and delivery of this Agreement by the Sellersuch actions, the sale of the Mortgage Loans by the Seller approvals, etc. under this Agreementany state securities laws, the consummation of any other of the transactions contemplated by this Agreementreal estate syndication or "Blue Sky" statutes, and the fulfillment of or compliance with the terms thereof are in the ordinary course of business of the Seller and will not (a) result in a material breach of any term or provision of the charter or by-laws of the Seller or (b) materially conflict with, result in a material breach, violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument as to which the Seller is a party makes no such representation or warranty) that are necessary in connection with the purchase and sale of the Securities and the execution and delivery by which it may be bound, or (c) constitute a material violation of any statute, order or regulation applicable to the Seller of this Agreement and the other related documents to which it is a party, have been duly taken, given or obtained, as the case may be, are in full force and effect, are not subject to any courtpending proceedings or appeals (administrative, regulatory bodyjudicial or otherwise) and either the time within which any appeal therefrom may be taken or review thereof may be obtained has expired or no review thereof may be obtained or appeal therefrom taken, administrative agency or governmental body having jurisdiction over the Seller, other than such conflicts, breaches, violations, accelerations or defaults which, individually or on a cumulative basis, would not have a material adverse effect on the Seller and its subsidiaries, taken as a whole, or are adequate to authorize the consummation of the transactions contemplated by this Agreement; Agreement and such other documents on the part of the Seller and the performance by the Seller of its obligations as Seller under this Agreement and such other documents to which it is a party;
(c) The consummation of the transactions contemplated by this Agreement will not result in (i) the breach of any terms or provisions of the Articles of Incorporation or Bylaws of the Seller, (ii) the breach of any term or provision of, or conflict with or constitute a default under or result in the acceleration of any obligation under, any material agreement, indenture or loan or credit agreement or other material instrument to which the Seller, or its property is subject, or (iii) the violation of any material indenture law, rule, regulation, order, judgment or decree to which the Seller or its respective property is subject;
(d) Neither this Agreement nor the Prospectus nor any statement, report or other material agreement document prepared by the Seller and furnished or instrument, to be furnished pursuant to this Agreement or in violation connection with the transactions contemplated hereby contains any untrue statement of any statute, order material fact or regulation of any court, regulatory body, administrative agency omits to state a material fact necessary to make the statements contained herein or governmental body having jurisdiction over it which breach or violation may materially impair the Seller's ability to perform or meet any of its obligations under this Agreement.therein not misleading;
(4e) No litigation There is no action, suit, proceeding or investigation pending or, to the best of the Seller's knowledge, threatened against the Seller that would prohibit which, either in any one instance or in the execution aggregate, may result in any material adverse change in the business, operations, financial condition, properties or delivery of, assets of the Seller or performance under, this Agreement by in any material impairment of the Seller.
(b) The Seller hereby assigns, transfers and conveys to the Purchaser all of its rights with respect to the Mortgage Loans including, without limitation, the representations and warranties of FHHLC made pursuant to MLPA I, together with all rights right or ability of the Seller to require FHHLC to cure carry on its business substantially as now conducted, or in any breach thereof material liability on the part of the Seller or which would draw into question the validity of this Agreement or the Home Loans or of any action taken or to repurchase be taken in connection with the obligations of the Seller contemplated herein, or substitute for which would be likely to impair materially the ability of the Seller to perform under the terms of this Agreement;
(f) The Seller is not in default with respect to any affected Mortgage Loan in accordance with MLPA I. It is understood and agreed that the obligation under MLPA I order or decree of FHHLC to cureany court or any order, repurchase regulation or replace demand of any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedyfederal, state, municipal or other governmental agency, which may be enforced solely against FHHLC default might have consequences that would materially and not adversely affect the Sellercondition (financial or otherwise) or operations of the Seller or its properties or might have consequences that would materially and adversely affect its performance hereunder;
(g) As of the Closing Date, respecting the Issuer will have good and marketable title to each Initial Home Loan and such breach available other items comprising the corpus of the Trust free and clear of any lien, mortgage, pledge, charge, security interest or other encumbrance;
(h) As of any Subsequent Transfer Date, the Issuer will have good and marketable title to each Subsequent Home Loan transferred on such date and such other items comprising the Purchaser on its behalf. corpus of the Trust free and clear of any lien, mortgage, pledge, charge, security interest or other encumbrance; and
(i) The representations transfer, assignment and warranties contained in this Agreement shall not be construed as a warranty or guaranty conveyance of the Home Loans, the Debt Instruments and the Mortgages by the Seller as pursuant to this Agreement or any Subsequent Transfer Agreement are not subject to the future payments by bulk transfer laws or any Mortgagor. It is understood similar statutory provisions in effect in any applicable jurisdiction.
(j) The Seller shall provide each Rating Agency and agreed that the representations Securities Insurer with notice and warranties set forth in this Section 4.1 shall survive a copy of any amendment to the sale Articles of Incorporation of the Mortgage Loans to Seller promptly after the Purchaser hereunderfiling thereof.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Firstplus Investment Corp)
Representations and Warranties of the Seller. The Seller -------------------------------------------- represents and warrants as follows:
(a) The Seller hereby represents and warrants to the Purchaseris a limited liability company duly organized, as of the date of execution and delivery hereof, that:
(1) The Seller is duly organized as a national banking association and is validly existing and in good standing under the laws of the United States jurisdiction of America its organization and is duly authorized and qualified to transact any do business, and is in good standing, in all states where the nature of its business contemplated by this Agreement to be conducted or the ownership or use of property requires such qualification.
(b) The execution, delivery and performance by the Seller in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification andof this Agreement, in any event, is in compliance with the doing business laws of any such state, to Ownership Document and all other instruments and documents delivered by the extent necessary to ensure its ability to enforce each Mortgage Loan and to perform any of its other obligations under this Agreement in accordance with the terms thereof.
(2) The Seller has the requisite power and authority to sell each Mortgage Loanhereunder, and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement hereby and has thereby, and the Seller's use of the proceeds of Purchases, are within the Seller's corporate powers, have been duly authorized by all necessary action on corporate action, do not contravene (i) the part Seller's Articles of the Seller the execution, delivery and performance of this Agreement; and this Organization or Operating Agreement, assuming the due authorization, execution and delivery thereof by the other parties thereto, constitutes a legal, valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except that (aii) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally law or of creditors of depository institutions, the accounts of which are insured by the FDIC, and (biii) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
(3) The execution and delivery of this Agreement by the Seller, the sale of the Mortgage Loans by the Seller under this Agreement, the consummation provision of any other loan or credit agreement, indenture, mortgage, deed of the transactions contemplated by this Agreementtrust, and the fulfillment of or compliance with the terms thereof are in the ordinary course of business of the Seller and will not (a) result in a material breach of any term or provision of the charter or by-laws of the Seller or (b) materially conflict with, result in a material breach, violation or acceleration of, or result in a material default under, the terms of any other material security agreement or instrument similar agreement to which the Seller is a party or by which it its property may be bound, and do not result in or require the creation of any lien, security interest or other charge or encumbrance upon or with respect to any of its properties, except as contemplated by this Agreement or the Ownership Document; and no transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(c) constitute a material violation of any statute, order No authorization or regulation applicable to the Seller of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Seller, other than such conflicts, breaches, violations, accelerations or defaults which, individually or on a cumulative basis, would not have a material adverse effect on the Seller and its subsidiaries, taken as a whole, or the consummation of the transactions contemplated by this Agreement; and the Seller is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Seller's ability to perform or meet any of its obligations under this Agreement.
(4) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller that would prohibit the execution or delivery approval of, or performance underapplication or notice to or filing with, this Agreement by the Seller.
(b) The Seller hereby assigns, transfers and conveys to the Purchaser all of its rights with respect to the Mortgage Loans any governmental entity including, without limitation, the representations Public Service Commission of Wisconsin, the Minnesota Public Utilities Commission, the Illinois Commerce Commission, the Federal Energy Regulatory Commission and warranties the Securities and Exchange Commission is required for the due execution, delivery and performance by the Seller of FHHLC this Agreement, the Ownership Document or any other document or instrument to be delivered hereunder except for (i) the filing of such UCC Financing Statements, naming the Seller as the seller of Receivables and the Purchaser as the purchaser of Receivables, as may be necessary or, in the opinion of the Purchaser, desirable under the UCC of all appropriate jurisdictions or any comparable law to perfect the ownership interests in all Receivables purchased from the Seller hereunder and (ii) the approval of the Public Service Commission of Wisconsin, the Minnesota Public Utilities Commission, the Illinois Commerce Commission and the Securities and Exchange Commission, all of which, at the time required in Section 3.01, shall have been duly made pursuant and shall be in full force and effect.
(d) This Agreement constitutes, and the Ownership Document when delivered hereunder shall constitute, the legal, valid and binding obligation of the Seller enforceable against the Seller in accordance with their respective terms.
(e) The balance sheet as of , 1999, and the statements of --------- income and retained earnings and cash flows of the Seller for the year then ended, each as certified by the Seller's chief financial officer, copies of which have been furnished to MLPA Ithe Purchaser, together with all rights fairly present the financial condition of the Seller as of the date of such balance sheet and the results of operations for the respective periods covered by said statements of income and retained earnings. Since , 1999, there has been no ---------- material adverse change in the financial condition or operations of the Seller.
(i) There are no actions, suits or proceedings pending, or to the knowledge of the Seller threatened, against or affecting the Seller or any subsidiary, or the property of the Seller or of any subsidiary, in any court, or before any arbitrator of any kind, or before or by any governmental body, which, if determined adversely to the Seller, would materially adversely affect the financial condition or operations of the Seller or the ability of the Seller to require FHHLC perform its obligations under this Agreement or the Ownership Document; (ii) there is no pending or threatened litigation which purports to cure affect the legality, validity or enforceability of this Agreement or any breach thereof transaction contemplated hereby or which seeks to repurchase enjoin or substitute challenge any proposed use of the proceeds of the Purchases hereunder; and (iii) the Seller is not in default with respect to any order of any court, arbitrator or governmental body except for defaults with respect to orders of governmental agencies which defaults are not material to the business or operations of the Seller.
(g) No proceeds of any affected Mortgage Loan Purchase will be used (i) for a purpose which violates, or would be inconsistent with, regulation T, U or X promulgated by the Board of Governors of the Federal Reserve System from time to time or (ii) to acquire any security in any transaction which is subject to Sections 13 and 14 of the Securities Exchange Act of 1934, as amended.
(i) The Receivables Pool is composed solely of Eligible Receivables, except for such Receivables as shall not, in the aggregate, constitute a material portion of the Receivables Pool; and (ii) upon each Purchase, the Purchaser will acquire a valid and perfected first priority ownership interest in each Pool Receivable then existing or thereafter arising and in the Related Security and Collections with respect thereto free and clear of Adverse Claims; and no effective financing statement or other instrument similar in effect covering any Pool Receivable or the Related Security or Collections with respect thereto is on file in any recording office, except those filed in favor of the Seller, the Purchaser and the Agent in accordance with MLPA I. It this Agreement, the Originator Agreement, the Xxxxxx Agreement and the Citibank Agreement.
(i) Each Investor Report (if prepared by the Seller or Services, or to the extent that information contained therein is understood supplied by the Seller or Services), information, exhibit, financial statement, document, book, record or report furnished at any time by the Collection Agent to the Purchaser in connection with this Agreement or to the Agent or any Owner in connection with the Xxxxxx Agreement or the Citibank Agreement is accurate in all material respects as of its date and agreed (except as otherwise disclosed to the Purchaser, the Agent or such Owner, as the case may be, at or prior to the time furnished) as of the date so furnished, and no such document contains, as of its date or (except as otherwise disclosed to the Purchaser, the Agent or such Owner, as the case may be, at or prior to the time furnished) as of the date so furnished, any material misstatement of fact or omits to state a material fact or any fact necessary to make the statements contained therein not materially misleading.
(j) The chief place of business and chief executive office of the Seller are located at , and the -------------------------------------------- offices where the Seller keeps all its books, records and documents evidencing Pool Receivables or the related Contracts are located at , or at other local offices within ---------------------------------------- the State of . -----------
(k) The Pool Receivables are accounts receivable representing all or part of the sale price of merchandise, insurance or services within the meaning of Section 3(c)(5) of the Investment Company Act of 1940, as amended; the nature of the Pool Receivables is such that their purchase with the obligation under MLPA I proceeds of FHHLC to curenotes would constitute a "current transaction" within the meaning of Section 3(a)(3) of the Securities Act of 1933, repurchase or replace any Mortgage Loan as amended.
(l) The Joint Expenses Ratio is not in excess of 25%.
(m) The Originator Agreement is the only agreement pursuant to which the Seller purchases receivables from any of the Originators or any SPV and each of the Receivables sold hereunder has been purchased under the Originator Agreement. The Seller has given the Purchaser true, correct and complete copies of the Originator Agreement, which is in full force and effect, and there are no written or oral understandings which would vary, waive or otherwise modify the terms thereof except those which have been approved in writing by the Agent.
(n) The Seller has no subsidiaries and does not own or hold, directly or indirectly, any capital stock or equity security of, or any equity interest in, any other Person and has conducted no other business except for the execution and delivery of the Originator Agreement, this Agreement, the acquisition of the Pool Receivables and sales thereof contemplated thereunder and hereunder, and such other activities as are incidental to the foregoing.
(o) The Seller is operated as an entity separate from the Originators and each other member of the Parent Group and, towards such end, the Seller:
(i) maintains books and records of account (including financial records) which are separate from each other member of the Parent Group and maintains its assets in a breach has occurred manner which facilitates their identification and is continuing shall constitute segregation from those of any other member of the sole remedyParent Group;
(ii) maintains its assets, funds and transactions separate from those of any member of the Parent Group, reflecting such assets and transactions in financial statements separate and distinct from those of such members, and evidencing such assets, funds and transactions by appropriate entries in the books and records referred to in clause (i) above, and providing for its own operating expenses and liabilities from its own assets and funds other than certain expenses and liabilities relating to basic corporate overhead which may be enforced solely against FHHLC allocated between the Seller and not the Parent Group;
(iii) conducts all intercompany transactions with all members of the Parent Group on an arm's length basis;
(iv) at all times enters into its contracts and otherwise holds itself out to the public under the Seller, respecting such breach available to the Purchaser on its behalf. The representations and warranties contained in this Agreement shall not be construed 's own name as a warranty legal entity separate and distinct from its Affiliates;
(v) holds such appropriate meetings or guaranty obtains such appropriate consents of its Board of Managers as are necessary to authorize all the Seller's actions required by law to be authorized by such Board of Managers, keeping minutes of such meetings and of meetings of its members and observing all other limited liability company formalities.
(p) The Seller has been adequately capitalized in light of its business and, on the Seller date hereof, (i) is not "insolvent" (as such term is defined in the Bankruptcy Code), (ii) is able to pay its debts as they mature, and (iii) does not have unreasonably small capital for the future payments by any Mortgagor. It business in which it is understood and agreed that the representations and warranties set forth in this Section 4.1 shall survive the sale of the Mortgage Loans to the Purchaser hereunderengaged.
Appears in 1 contract
Samples: Receivables Purchase and Sale Agreement (Alliant Energy Corp)
Representations and Warranties of the Seller. (a) The Seller Xxxxxx Capital hereby represents and warrants to the Purchaser, Depositor that as of the date of execution and delivery hereof, thatClosing Date:
(1i) The Seller Xxxxxx Capital is a corporation duly organized as a national banking association and is organized, validly existing and in good standing under the laws of the United States of America governing its creation and is duly authorized existence and qualified to transact any and all business contemplated by this Agreement to be conducted by the Seller in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such state, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to perform any of its other obligations under this Agreement in accordance with the terms thereof.
(2) The Seller has the requisite full corporate power and authority to sell each Mortgage Loanown its property, and to execute, deliver and performcarry on its business as presently conducted, and to enter into and consummate perform its obligations under this Agreement;
(ii) the execution and delivery by Xxxxxx Capital of this Agreement have been duly authorized by all necessary corporate action on the part of Xxxxxx Capital; neither the execution and delivery of this Agreement, nor the consummation of the transactions herein contemplated, nor compliance with the provisions hereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on Xxxxxx Capital or its properties or the certificate of incorporation or bylaws of Xxxxxx Capital;
(iii) the execution, delivery and performance by Xxxxxx Capital of this Agreement and the consummation of the transactions contemplated hereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) this Agreement has been duly executed and delivered by Xxxxxx Capital and, assuming due authorization, execution and delivery by the Depositor, constitutes a valid and binding obligation of Xxxxxx Capital enforceable against it in accordance with its terms except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) there are no actions, suits or proceedings pending or, to the knowledge of Xxxxxx Capital, threatened or likely to be asserted against or affecting Xxxxxx Capital, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or (B) with respect to any other matter which in the judgment of Xxxxxx Capital will be determined adversely to Xxxxxx Capital and has duly authorized by all necessary action on will if determined adversely to Xxxxxx Capital materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement.
(b) The representations and warranties of each Transferor with respect to the part Mortgage Loans in the applicable Transfer Agreement were made as of the Seller date of such Transfer Agreement. To the executionextent that any fact, delivery condition or event with respect to a Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the applicable Transfer Agreement and performance (ii) a representation or warranty of this Agreement; and Xxxxxx Capital under this Agreement, assuming the due authorizationonly right or remedy of the Depositor shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The Depositor acknowledges and agrees that the representations and warranties of Xxxxxx Capital in this Section 1.04(b) are applicable only to facts, execution and delivery thereof conditions or events that do not constitute a breach of any representation or warranty made by the other parties theretorelated Transferor in the applicable Transfer Agreement. Xxxxxx Capital shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Mortgage Loans if the fact, condition or event constituting such breach also constitutes a legalbreach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, Xxxxxx Capital shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Mortgage Loan. Subject to the foregoing, Xxxxxx Capital represents and warrants upon delivery of the Mortgage Loans to the Depositor hereunder, as to each, that:
(i) The information set forth with respect to the Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Mortgage Loans, and the information with respect to each Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and Xxxxxx Capital has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be insured by a generally acceptable insurer against loss by fire, hazards of extended coverage and such other hazards as are customary in the area where the related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA or FHLMC. If upon origination of the Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related Mortgagor thereunder to maintain the hazard insurance policy at the Mortgagor's cost and expense, and on the Mortgagor's failure to do so, authorizes the holder of the Mortgage to obtain and maintain such insurance at such Mortgagor's cost and expense, and to seek reimbursement therefor from the Mortgagor. Where required by state law or regulation, each Mortgagor has been given an opportunity to choose the carrier of the required hazard insurance, provided the policy is not a “master” or “blanket” hazard insurance policy covering the common facilities of a planned unit development. The hazard insurance policy is the valid and binding obligation of the Sellerinsurer, enforceable against the Seller is in accordance with its terms, except that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership full force and other similar laws relating to creditors' rights generally or of creditors of depository institutions, the accounts of which are insured by the FDICeffect, and (b) the remedy of specific performance will be in full force and injunctive effect and other forms of equitable relief may be subject to equitable defenses and inure to the discretion benefit of the court before which any proceeding therefor may be brought.
(3) The execution and delivery of this Agreement by the Seller, the sale of the Mortgage Loans by the Seller under this Agreement, the consummation of any other of the transactions contemplated by this Agreement, and the fulfillment of or compliance with the terms thereof are in the ordinary course of business of the Seller and will not (a) result in a material breach of any term or provision of the charter or by-laws of the Seller or (b) materially conflict with, result in a material breach, violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Seller is a party or by which it may be bound, or (c) constitute a material violation of any statute, order or regulation applicable to the Seller of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Seller, other than such conflicts, breaches, violations, accelerations or defaults which, individually or on a cumulative basis, would not have a material adverse effect on the Seller and its subsidiaries, taken as a whole, or Depositor upon the consummation of the transactions contemplated by this Agreement; and the Seller is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Seller's ability to perform or meet any of its obligations under this Agreement.
(4iv) No litigation Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is pending orsubject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender's Title Insurance Policy or attorney's opinion of title and abstract of title delivered to the best originator of such Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the Seller's knowledge, threatened against the Seller that would prohibit the execution or delivery of, or performance under, this Agreement security intended to be provided by the Seller.Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with a Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(bvi) The Seller hereby assigns, transfers and conveys Immediately prior to the Purchaser all of its rights with respect to the Mortgage Loans including, without limitation, the representations transfer and warranties of FHHLC made pursuant to MLPA I, together with all rights of the Seller to require FHHLC to cure any breach thereof or to repurchase or substitute for any affected Mortgage Loan in accordance with MLPA I. It is understood and agreed that the obligation under MLPA I of FHHLC to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy, which may be enforced solely against FHHLC and not the Seller, respecting such breach available to the Purchaser on its behalf. The representations and warranties contained in this Agreement shall not be construed as a warranty or guaranty by the Seller as to the future payments by any Mortgagor. It is understood and agreed that the representations and warranties set forth in this Section 4.1 shall survive the sale assignment of the Mortgage Loans to the Purchaser hereunderDepositor, Xxxxxx Capital was the sole owner of record and holder of each Mortgage Loan, and Xxxxxx Capital had good and marketable title thereto, and has full right to transfer and sell each Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, of any encumbrance, equity, participation interest, lien, pledge, charge, claim or security interest, and has full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign each Mortgage Loan pursuant to this Agreement;
(vii) Each Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney's opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including Xxxxxx Capital, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of Xxxxxx Capital's knowledge, no foreclosure action is being threatened or commenced with respect to any Mortgage Loan. There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of a Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Mortgage Loan or the use for which the premises were intended;
(ix) There are no mechanics' or similar liens or claims which have been filed for work, labor or material (and no rights are outstanding that under the law could give rise to such liens) affecting the related Mortgaged Property which are or may be liens prior to, or equal or coordinate with, the lien of the related Mortgage;
(x) Each Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution which is supervised and examined by a Federal or State authority, or by a mortgagee approved by the Secretary of Housing and Urban Development pursuant to sections 203 and 211 of the National Housing Act;
(xi) Any and all requirements of any federal, state or local law, including, without limitation, usury, truth-in-lending, real estate settlement procedures, consumer credit protection, equal credit opportunity or disclosure laws applicable to each Mortgage Loan have been complied with; and
(xii) Each Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.
Appears in 1 contract
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to Parent and the Purchaser, as of the date of execution and delivery hereof, Buyer that:
(1a) The each of the Seller and Alico Parent is duly organized as a national banking association and is organized, validly existing and in good standing (as applicable) under the laws Laws of the United States State of America Nevada and is duly authorized the State of Florida, respectively, and qualified to transact any and all business contemplated by this Agreement to be conducted by the Seller in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such state, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to perform any of its other obligations under this Agreement in accordance with the terms thereof.
(2) The Seller has the requisite full power and authority to sell each Mortgage Loan, carry on its business as now conducted and to executeown its assets (including, deliver in the case of the Seller, the Purchased Shares);
(b) each of the Seller and perform, Alico Parent has full power and authority to enter into this Agreement and to consummate the transactions contemplated hereby and thereby, including, in the case of the Seller, to sell, transfer and assign to the Buyer all right, title and interest in and to the Purchased Shares to be sold by the Seller hereunder;
(c) except as set forth on Schedule 1.2(c), the Seller has valid title to, and, together with Alico Parent, its sole member, is the record and beneficial owner of, the Purchased Shares free and clear of all security interests, claims, security interests, claims, liens or other encumbrances of any nature, including any rights of third parties in or to such shares (other than restrictions on transfer under applicable federal and state securities Laws);
(d) upon payment by the Buyer of the Purchase Price and delivery to the Buyer (or its designee) of the certificates (or evidence of book-entry delivery) representing the Purchased Shares to be sold by the Seller hereunder at the Closing, the Buyer will acquire valid title to such interests, free and clear of all security interests, claims, liens and encumbrances of any nature (including free and clear of such liens set forth on Schedule 1.2(c)), other than any liens and restrictions created by the Buyer (or its designee) or restrictions on transfer under applicable federal and state securities Laws;
(e) this Agreement has been duly and has duly authorized validly executed and delivered by all necessary action on the part each of the Seller the execution, delivery and performance of this Agreement; and this AgreementAlico Parent and, assuming the due authorization, execution and delivery thereof by the other parties theretoBuyer and Parent, constitutes is, and will be, a legal, valid and binding obligation of the SellerSeller and Alico Parent, enforceable against the Seller and Alico Parent in accordance with its terms, except that (a) the as such enforceability thereof may be limited by bankruptcy, insolvency, moratoriumreorganization, receivership moratorium and other similar laws relating to creditors' Laws affecting the rights generally or of creditors generally and by general principles of depository institutionsequity;
(f) Alico Parent has obtained valid and binding written consents constituting the vote necessary under Alico Parent’s organizational documents and applicable Law to authorize and approve this Agreement and the consummation of the transactions contemplated hereby, including the accounts of Share Purchase (the “Alico Parent Approval”), which are insured by the FDIC, and Alico Parent Approval has not been revoked or rescinded;
(bg) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
(3) The execution and delivery of this Agreement by the Seller, Seller and Alico Parent and the sale of the Mortgage Loans performance by the Seller under this Agreement, of its obligations hereunder and thereunder and the consummation of any other of the transactions contemplated hereby and thereby, will not:
(i) conflict with or violate the organizational documents of the Seller;
(ii) require any consent, waiver, approval, order or authorization of or other action by this Agreementany United States or foreign federal, state, commonwealth, local (including county or municipal) or other governmental, regulatory, self-regulatory or administrative, department, board, bureau, authority, agency, division, instrumentality or commission or any court of any of the same (each, a “Governmental Entity”) or any registration, qualification, declaration or filing (other than compliance with and any filings and/or notices required under the Securities Exchange Act of 1934, as amended, and the fulfillment rules and regulations promulgated thereunder (the “Exchange Act”)) with or without notice to any Governmental Entity, in each case on the part of or compliance with respect to the Seller, the absence or omission of which would, either individually or in the aggregate, have a material adverse effect on the Seller’s ability to consummate the transactions contemplated hereby;
(iii) except as set forth on Schedule 1.2(g)(iii), require, on the part of the Seller, any consent or waiver by or approval of or notice to any other person or entity (other than a Governmental Entity), the absence or omission of which would, either individually or in the aggregate, have a material adverse effect on the Seller’s ability to consummate the transactions contemplated hereby; or
(iv) except as set forth on Schedule 1.2(g)(iv), result (with or without notice, lapse of time or otherwise) in a breach of the terms thereof are or conditions of, a default under, a conflict with, or the acceleration of (or the creation in any person of any right to cause the ordinary course acceleration of) any performance or any increase in or creation of business any payment required by, or the termination, suspension, modification, impairment or forfeiture (or the creation in any person of any right to cause the termination, suspension, modification, impairment or forfeiture) of any material rights or privileges of the Seller and will not (a) result in a material breach of any term or provision of the charter or by-laws of the Seller or (b) materially conflict with, result in a material such breach, violation default, conflict, acceleration, increase, creation, termination, suspension, modification, impairment or acceleration offorfeiture, a “Violation”) under (x) any agreement, contract, arrangement or understanding, written or oral (collectively, “Contract”), or result in a material default underany judgment, the terms of any other material agreement writ, order or instrument decree (collectively, “Judgment”) to which the Seller is a party or by or to which it may be bound, or (c) constitute a material violation of any statute, order or regulation applicable to the Seller of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Seller, or any of its properties, assets or any of the Purchased Shares may be subject, bound or affected or (y) any applicable law, rule or regulation (collectively, “Law”), other than any such conflictsViolation as would not, breaches, violations, accelerations or defaults which, either individually or on a cumulative basisin the aggregate, would not have a material adverse effect on the Seller and its subsidiariesSeller’s ability to consummate the transactions contemplated hereby;
(h) as of the date hereof, taken as a wholethere is no action, claim, suit, investigation or proceeding, governmental, regulatory or otherwise (“Proceeding”), pending or, to the actual knowledge, after reasonable inquiry, of the individual set forth on Schedule 1.2(h) (the “Knowledge of the Seller”), threatened, against the Seller, or any of its Affiliates, relating to the consummation of Purchased Shares or the transactions contemplated by this Agreement; and the Seller is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Seller's ability to perform or meet any of its obligations under this Agreement.
(4) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller that would prohibit the execution or delivery of, or performance under, this Agreement by the Seller.
(b) The Seller hereby assigns, transfers and conveys to the Purchaser all of its rights . “Affiliates” shall mean with respect to the Mortgage Loans any natural person, general or limited partnership, corporation, limited liability company, firm, association or other legal entity (a “Person”), any other Person controlling, controlled by or under common control with such Person. The term “control” (including, without limitationwith correlative meaning, the representations terms “controlled by” and warranties “under common control with”), as applied to any Person, means the possession, directly or indirectly, of FHHLC made pursuant the power to MLPA Idirect or cause the direction of the management and policies of such Person, together with all rights whether through the ownership of voting or other securities, by contract or otherwise. Notwithstanding the foregoing, the Company and its Affiliates, on the one hand, will not be deemed to be Affiliates of any of the Seller to require FHHLC to cure any breach thereof or to repurchase or substitute for any affected Mortgage Loan in accordance with MLPA I. It is understood and agreed that its Affiliates, on the obligation under MLPA I of FHHLC to cureother hand, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy, which may be enforced solely against FHHLC and not the Seller, respecting such breach available to the Purchaser on its behalf. The representations and warranties contained in this Agreement shall not be construed as a warranty or guaranty by the Seller as to the future payments by any Mortgagor. It is understood and agreed that the representations and warranties set forth in this Section 4.1 shall survive the sale of the Mortgage Loans to the Purchaser hereunder.vice versa;
Appears in 1 contract
Samples: Stock Purchase Agreement (Atlantic Blue Group, Inc.)
Representations and Warranties of the Seller. The Seller represents, warrants and covenants to the Purchaser that as of the Closing Date or as of such date specifically provided herein:
(a) The Seller hereby represents and warrants to the Purchaseris a limited liability company duly organized, as of the date of execution and delivery hereof, that:
(1) The Seller is duly organized as a national banking association and is validly existing and in good standing under the laws of the United States State of America Delaware and has all licenses necessary to carry out its business as now being conducted, and is duly authorized licensed and qualified to transact any business in and all business contemplated by this Agreement to be conducted by is in good standing under the Seller in any laws of each state in which a 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 andand no demand for such licensing or qualification has been made upon such Seller by any such state, and in any event, event such Seller is in compliance with the doing business laws of any such state, state to the extent necessary to ensure its ability to enforce the enforceability of each Mortgage Loan and to perform any the servicing of its other obligations under this Agreement the Mortgage Loans in accordance with the terms thereof.of this Agreement;
(2b) The Seller has the requisite full power and authority and legal right to hold, transfer and convey each Mortgage Loan, to sell each Mortgage Loan, Loan and to execute, deliver and perform, and to enter into and consummate the all transactions contemplated by this Agreement and to conduct its business as presently conducted, has duly authorized by all necessary action on the part of the Seller the execution, delivery and performance of this Agreement; Agreement and any agreements contemplated hereby, has duly executed and delivered this Agreement, assuming and any agreements contemplated hereby, and this Agreement and each Assignment of Mortgage to the due authorization, execution Purchaser and delivery thereof by the other parties theretoany agreements contemplated hereby, constitutes a legal, valid and binding obligation of the Seller, enforceable against the Seller it in accordance with its terms, except that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally or of creditors of depository institutions, the accounts of which are insured all requisite corporate action has been taken by the FDIC, Seller to make this Agreement and all agreements contemplated hereby valid and binding upon the Seller in accordance with their terms;
(bc) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion None of the court before which any proceeding therefor may be brought.
(3) The execution and delivery of this Agreement Agreement, the origination of the Mortgage Loans by the Seller, the sale of the Mortgage Loans by to the Seller under this AgreementPurchaser, the consummation of any other of the transactions contemplated by this Agreementhereby, and or the fulfillment of or compliance with the terms thereof are and conditions of this Agreement will conflict with any of the terms, conditions or provisions of the Seller's charter or by-laws or materially conflict with or result in a material breach of any of the terms, conditions or provisions of any legal restriction or any agreement or instrument to which the Seller is now a party or by which it is bound, or constitute a default or result in an acceleration under any of the foregoing, or result in the material violation of any law, rule, regulation, order, judgment or decree to which the Seller or its property is subject or impair the ability of the Purchaser to realize on the Mortgage Loans or impair the value of the Mortgage Loans;
(d) Each Mortgage Note, each Mortgage, each Assignment of Mortgage and any other documents required pursuant to this Agreement to be delivered to the Purchaser or its designee, or its assignee for each Mortgage Loan, have been, on or before the Closing Date, delivered to the Purchaser or its designee, or its assignee;
(e) There is no litigation, suit, proceeding or investigation pending or threatened, or any order or decree outstanding, with respect to the Seller which is reasonably likely to have a material adverse effect on the sale or servicing of the Mortgage Loans, the execution, delivery, performance or enforceability of this Agreement, or which is reasonably likely to have a material adverse effect on the financial condition of the Seller;
(f) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Seller of or compliance by the Seller with this Agreement, except for consents, approvals, authorizations and orders which have been obtained;
(g) The consummation of the transactions contemplated by this Agreement is in the ordinary course of business of the Seller Seller, and will not (a) result in a material breach of any term or provision the transfer, assignment and conveyance of the charter or by-laws of Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to bulk transfer or any similar statutory provisions in effect in any applicable jurisdiction;
(bh) materially conflict with, result in a material breach, violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the The Seller is a party or by which it may be bound, or (c) constitute a material violation member of any statute, order or regulation applicable to the Seller of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Seller, other than such conflicts, breaches, violations, accelerations or defaults which, individually or on a cumulative basis, would not have a material adverse effect on the Seller and its subsidiaries, taken as a whole, or the consummation of the transactions contemplated by this Agreement; and the Seller is not MERS in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Seller's ability to perform or meet any of its obligations under this Agreement.good standing;
(4) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller that would prohibit the execution or delivery of, or performance under, this Agreement by the Seller.
(bi) The Seller hereby assigns, transfers and conveys used no adverse selection procedures in selecting from among the outstanding first lien residential mortgage loans owned by it which were available for inclusion in the sale to the Purchaser all of its rights with respect to the Mortgage Loans including, without limitation, the representations and warranties of FHHLC made pursuant to MLPA I, together with all rights of the Purchaser;
(j) The Seller to require FHHLC to cure any breach thereof or to repurchase or substitute for any affected Mortgage Loan in accordance with MLPA I. It is understood and agreed that the obligation under MLPA I of FHHLC to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy, which may be enforced solely against FHHLC and not the Seller, respecting such breach available to the Purchaser on its behalf. The representations and warranties contained in this Agreement shall not be construed as a warranty or guaranty by the Seller as to the future payments by any Mortgagor. It is understood and agreed that the representations and warranties set forth in this Section 4.1 shall survive will treat the sale of the Mortgage Loans to the Purchaser hereunderas a sale for reporting and accounting purposes and, to the extent appropriate, for federal income tax purposes;
(k) The Seller is an approved seller/servicer of residential mortgage loans for FNMA/FHLMC and HUD, with such facilities, procedures and personnel necessary for the sound servicing of such mortgage loans. The Seller is duly qualified, licensed, registered and otherwise authorized under all applicable federal, state and local laws, and regulations, if applicable, meets the minimum capital requirements set forth by the OCC, and is in good standing to sell mortgage loans to and service mortgage loans for FNMA/FHLMC and no event has occurred which would make Seller unable to comply with eligibility requirements or which would require notification to either FNMA or FHLMC;
(l) The Seller 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. 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;
(m) No statement, tape, diskette, form, report or other document prepared by, or on behalf of, Seller pursuant to this Agreement or in connection with the transactions contemplated hereby, contains or will contain any statement that is or will be inaccurate or misleading in any material respect;
(n) The Seller acknowledges and agrees that the Servicing Fee represents reasonable compensation for performing such services and that the entire Servicing Fee shall be treated by the Seller, for accounting and tax purposes, as compensation for the servicing and administration of the Mortgage Loans pursuant to this Agreement; in the opinion of Seller, the consideration received by Seller upon the sale of the Mortgage Loans to Purchaser under this Agreement constitutes fair consideration for the Mortgage Loans under current market conditions;
(o) If requested by the Purchaser, the Seller has delivered to the Purchaser financial statements as to its last two complete fiscal years. All such financial statements fairly present the pertinent results of operations and changes in financial position for each of such periods and the financial position at the end of each such period of the Seller and its subsidiaries and have been prepared in accordance with GAAP consistently applied throughout the periods involved, except as set forth in the notes thereto. There has been no change in the business, operations, financial condition, properties or assets of the Seller since the date of the Seller's financial statements that would have a material adverse effect on its ability to perform its obligations under this Agreement; and
(p) The Seller 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 sale of the Mortgage Loans.
Appears in 1 contract
Samples: Mortgage Loan Purchase, Warranties and Servicing Agreement (Banc of America Funding 2006-5 Trust)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Purchaser, Depositor that as of the date of execution and delivery hereof, hereof that:
(1i) The Seller is a Delaware corporation duly organized as a national banking association and is organized, validly existing and in good standing under the laws of the United States of America governing its creation and is duly authorized existence and qualified to transact any and all business contemplated by this Agreement to be conducted by the Seller in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such state, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to perform any of its other obligations under this Agreement in accordance with the terms thereof.
(2) The Seller has the requisite full corporate power and authority to sell each Mortgage Loanown its property, and to execute, deliver and perform, carry on its business as presently conducted and to enter into and consummate perform its obligations under this Agreement;
(ii) The execution and delivery by the Seller of this Agreement have been duly authorized by all necessary corporate action on the part of the Seller; none of the execution and delivery of this Agreement, the consummation of the transactions herein contemplated or compliance with the provisions hereof will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the federal stock charter or bylaws of the Seller;
(iii) The execution, delivery and performance by the Seller of this Agreement and the consummation of the transactions contemplated hereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) This Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Depositor, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its terms except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement and has duly authorized by all necessary action on or (B) with respect to any other matter which in the part judgment of the Seller the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties thereto, constitutes a legal, valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except that (a) the enforceability thereof may will be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating determined adversely to creditors' rights generally or of creditors of depository institutions, the accounts of which are insured by the FDIC, and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
(3) The execution and delivery of this Agreement by the Seller, the sale of the Mortgage Loans by the Seller under this Agreement, the consummation of any other of the transactions contemplated by this Agreement, and the fulfillment of or compliance with the terms thereof are in the ordinary course of business of the Seller and will not (a) result in a material breach of any term or provision of the charter or by-laws of the Seller or (b) materially conflict with, result in a material breach, violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Seller is a party or by which it may be bound, or (c) constitute a material violation of any statute, order or regulation applicable if determined adversely to the Seller of any courtmaterially and adversely affect it or its business, regulatory bodyassets, administrative agency operations or governmental body having jurisdiction over the Sellercondition, other than such conflicts, breaches, violations, accelerations financial or defaults which, individually or on a cumulative basis, would not have a material adverse effect on the Seller and its subsidiaries, taken as a wholeotherwise, or the consummation of the transactions contemplated by this Agreement; and the Seller is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Seller's adversely affect its ability to perform or meet any of its obligations under this Agreement.
(4) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller that would prohibit the execution or delivery of, or performance under, this Agreement by the Seller.
(b) The Seller hereby assigns, transfers representations and conveys to warranties of the Purchaser all of its rights Transferors with respect to the Mortgage Loans includingcontained in the Transfer Agreement were made as of the date of the Transfer Agreement and brought forward to the Closing Date pursuant to the Bring Down Letter. The representations and warranties of the Transferors with respect to the Mortgage Loans contained in the Bring Down Letter were made as of the Closing Date. To the extent that any fact, without limitationcondition or event with respect to a Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the Transfer Agreement or Bring Down Letter and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than a breach by the Seller of the representations and warranties made pursuant to Sections 1.04(b)(vii) and 1.04(b)(viii)) shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(vii) and 1.04(b)(viii) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of FHHLC made pursuant to MLPA I, together with all rights of the Seller to require FHHLC to cure any breach thereof or to repurchase or substitute for any affected Mortgage Loan in accordance with MLPA I. It is understood and agreed that the obligation under MLPA I of FHHLC to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy, which may be enforced solely against FHHLC and not the Seller, respecting such breach available to the Purchaser on its behalf. The representations and warranties contained in this Agreement shall not be construed as a warranty or guaranty by the Seller as to the future payments by any Mortgagor. It is understood and agreed that Section 1.04(b) (other than the representations and warranties set forth made pursuant to Sections 1.04(b)(vii) and 1.04(b)(viii)) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by a Transferor in this Section 4.1 the Transfer Agreement or Bring Down Letter. The Seller shall survive have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the sale Mortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by a Transferor in the Transfer Agreement or Bring Down Letter, without regard to whether such Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if such Transferor fulfills its obligations under the provisions of the Transfer Agreement and the Bring Down Letter by substituting for the affected Mortgage Loan a mortgage loan which is not a Replacement Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Mortgage Loans to the Purchaser Depositor hereunder, as to each, that as of August 30, 2005:
(i) The information set forth with respect to the Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Mortgage Loans, and the information with respect to each Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) As of the Closing Date, no Mortgage Loan is in foreclosure;
(iii) As of the Closing Date, each Mortgage Loan is a "qualified mortgage" within the meaning of Section 860G of the Code (as determined without regard to Treas.
Appears in 1 contract
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Purchaser, Depositor that as of the date of execution and delivery hereof, thatClosing Date:
(1i) The the Seller is a corporation duly organized as a national banking association and is organized, validly existing and in good standing under the laws of the United States of America governing its creation and is duly authorized existence and qualified to transact any and all business contemplated by this Agreement to be conducted by the Seller in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such state, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to perform any of its other obligations under this Agreement in accordance with the terms thereof.
(2) The Seller has the requisite full corporate power and authority to sell each Mortgage Loanown its property, carry on its business as presently conducted and to execute, deliver and perform, and to enter into and consummate perform its obligations under the transactions contemplated Assignment Agreements and this Agreement;
(ii) the execution and delivery by the Seller of the Assignment Agreements and this Agreement and has have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and delivery of the Assignment Agreements or this Agreement, nor the consummation of the transactions therein or herein contemplated, nor compliance with the provisions thereof or hereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) the execution, delivery and performance by the Seller of this Agreement; the Assignment Agreements and this AgreementAgreement and the consummation of the transactions contemplated thereby and hereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) each of the Assignment Agreements and this Agreement has been duly executed and delivered by the Seller and, assuming the due authorization, execution and delivery thereof by the other parties theretoBank, in the case of the Assignment Agreements, and the Depositor, in the case of this Agreement, constitutes a legal, valid and binding obligation of the Seller, Seller enforceable against the Seller it in accordance with its respective terms, except that (a) the as such enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership subject to (A) applicable bankruptcy and insolvency laws and other similar laws relating to creditors' affecting the enforcement of the rights generally or of creditors of depository institutions, the accounts of which are insured by the FDIC, generally and (bB) the remedy general principles of specific performance and injunctive and other forms equity regardless of equitable relief may be subject to equitable defenses and whether such enforcement is considered in a proceeding in equity or at law; and
(v) there are no actions, suits or proceedings pending or, to the discretion knowledge of the court before which any proceeding therefor may be brought.
(3) The execution and delivery of this Agreement by the Seller, threatened or likely to be asserted against or affecting the sale of the Mortgage Loans Seller, before or by the Seller under this Agreementany court, the consummation of administrative agency, arbitrator or governmental body (A) with respect to any other of the transactions contemplated by the Assignment Agreements or this Agreement, and the fulfillment of Agreement or compliance (B) with the terms thereof are respect to any other matter which in the ordinary course judgment of business of the Seller will be determined adversely to the Seller and will not (a) result in a material breach of any term or provision of the charter or by-laws of if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under the Assignment Agreements or this Agreement.
(b) materially conflict withThe Seller represents and warrants upon delivery of the Mortgage Loans to the Depositor hereunder, result as to each, that, as of the Closing Date:
(i) The information set forth with respect to the Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Mortgage Loans, and the information with respect to each Mortgage Loan on the Mortgage Loan Schedule is true and correct in a all material breach, violation respects at the date or acceleration of, or result dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in a material default under, payment) in complying with the terms of any other material agreement or instrument to which Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be insured by a generally acceptable insurer against loss by fire, hazards of extended coverage and such other hazards as are customary in the area where the related Mortgaged Property is a party or by which it may be bound, or (c) constitute a material violation of any statute, order or regulation applicable located pursuant to insurance policies conforming to the Seller requirements of any courtthe guidelines of Xxxxxx Xxx or Xxxxxxx Mac. If upon origination of the Mortgage Loan, regulatory bodythe Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available), administrative agency or governmental body having jurisdiction over a flood insurance policy meeting the Sellerrequirements of the current guidelines of the Federal Flood Insurance Administration is in effect, other than such conflictswhich policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related Mortgagor thereunder to maintain the hazard insurance policy at the Mortgagor’s cost and expense, breaches, violations, accelerations or defaults which, individually or on a cumulative basis, would not have a material adverse effect and on the Seller Mortgagor’s failure to do so, authorizes the holder of the Mortgage to obtain and its subsidiariesmaintain such insurance at such Mortgagor’s cost and expense, taken as and to seek reimbursement therefor from the Mortgagor. Where required by state law or regulation, each Mortgagor has been given an opportunity to choose the carrier of the required hazard insurance, provided the policy is not a whole“master” or “blanket” hazard insurance policy covering the common facilities of a planned unit development. The hazard insurance policy is the valid and binding obligation of the insurer, or is in full force and effect, and will be in full force and effect and inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement; ;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Seller is Mortgaged Property has not been released from the lien of the Mortgage, in breach or violation of any material indenture or other material agreement or instrument, whole or in violation part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, order (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or regulation attorney’s opinion of any courttitle and abstract of title delivered to the originator of such Mortgage Loan, regulatory bodyand (3) such other matters to which like properties are commonly subject which do not, administrative agency individually or governmental body having jurisdiction over it which breach in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any security agreement, chattel mortgage or violation may materially impair equivalent document related to, and delivered to the Seller's ability Trustee in connection with, a Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to perform or meet any of its obligations under this Agreement.sell and assign the same to the Trustee;
(4vi) No litigation is pending or, Immediately prior to the best of the Seller's knowledge, threatened against the Seller that would prohibit the execution or delivery of, or performance under, this Agreement by the Seller.
(b) The Seller hereby assigns, transfers transfer and conveys to the Purchaser all of its rights with respect to the Mortgage Loans including, without limitation, the representations and warranties of FHHLC made pursuant to MLPA I, together with all rights of the Seller to require FHHLC to cure any breach thereof or to repurchase or substitute for any affected Mortgage Loan in accordance with MLPA I. It is understood and agreed that the obligation under MLPA I of FHHLC to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy, which may be enforced solely against FHHLC and not the Seller, respecting such breach available to the Purchaser on its behalf. The representations and warranties contained in this Agreement shall not be construed as a warranty or guaranty by the Seller as to the future payments by any Mortgagor. It is understood and agreed that the representations and warranties set forth in this Section 4.1 shall survive the sale assignment of the Mortgage Loans to the Purchaser hereunderDepositor, the Seller was the sole owner of record and holder of each Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, of any encumbrance, equity, participation interest, lien, pledge, charge, claim or security interest, and has full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign each Mortgage Loan pursuant to this Agreement;
(vii) Each Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA Mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) No foreclosure action is being threatened or commenced with respect to any Mortgage Loan. There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Mortgage Loan or the use for which the premises were intended;
(ix) There are no mechanics’ or similar liens or claims which have been filed for work, labor or material (and no rights are outstanding that under the law could give rise to such liens) affecting the related Mortgaged Property which are or may be liens prior to, or equal or coordinate with, the lien of the related Mortgage;
(x) Each Mortgage Loan will have a CLTV of 100% or less as of the Closing Date;
(xi) Each Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2;
(xii) Each Mortgage Loan at the time it was originated complied in all material respects with applicable local, state and federal laws, including, but not limited to, all applicable local, state and federal predatory, abusive and fair lending laws; and, specifically, (a) no Mortgage Loan secured by a Mortgaged Property located in New Jersey is a “High-Cost Home Loan” as defined in the New Jersey Home Ownership Act effective November 27, 2003 (N.J.S.A. 46:10B-22 et seq.); (b) no Mortgage Loan secured by a Mortgaged Property located in New Mexico is a “High-Cost Home Loan” as defined in the New Mexico Home Loan Protection Act effective January 1, 2004 (N.M.
Appears in 1 contract
Samples: Mortgage Loan Sale and Assignment Agreement (BNC Mortgage Loan Trust 2007-3)
Representations and Warranties of the Seller. The Seller represents, warrants and covenants to the Purchaser and to any subsequent Purchaser that as of each Closing Date or as of such date specifically provided herein:
(a) The Seller hereby represents and warrants to the Purchaseris a corporation duly organized, as of the date of execution and delivery hereof, that:
(1) The Seller is duly organized as a national banking association and is validly existing and in good standing under the laws of the United States jurisdiction of America its incorporation and has all licenses and approvals necessary to carry out its business as now being conducted, and is duly authorized licensed and qualified to transact any business in and all business contemplated by this Agreement to be conducted by is in good standing under the Seller in any laws of each state in which a 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 andand no demand for such licensing or qualification has been made upon the Seller by any such state, and in any event, event the Seller is in compliance with the doing business laws of any such state, state to the extent necessary to ensure its ability to enforce the enforceability of each Mortgage Loan and to perform any the servicing of its other obligations under this Agreement the Mortgage Loans in accordance with the terms thereof.of this Agreement. No licenses or approvals obtained by the Seller are currently suspended by any court, administrative agency, arbitrator or governmental body and no proceedings are pending which might result in such suspension;
(2b) The Seller has the requisite full corporate power and authority and legal right to hold, transfer and convey each Mortgage Loan, to sell each Mortgage Loan, Loan and to execute, deliver and perform, and to enter into and consummate the all transactions contemplated by this Agreement Agreement, the related Purchase Price and Terms Letter and the related Assignment and Conveyance and to conduct its business as presently conducted; the Seller has duly authorized by all necessary action on the part of the Seller the execution, delivery and performance of this Agreement and any agreements contemplated hereby, has duly executed and delivered this Agreement; , the related Purchase Price and Terms Letter and the related Assignment and Conveyance, and any agreements contemplated hereby, and this Agreement, assuming the due authorizationrelated Purchase Price and Terms Letter, execution the related Assignment and delivery thereof by Conveyance and each Assignment of Mortgage to the other parties theretoPurchaser and any agreements contemplated hereby, constitutes a constitute the legal, valid and binding obligation obligations of the Seller, enforceable against the Seller it in accordance with its their respective terms, except that (a) the as such enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership reorganization and other similar laws relating laws, and by equitable principles affecting the enforceability of the rights of creditors; and all requisite corporate action has been taken by the Seller to creditors' rights generally or of creditors of depository institutionsmake this Agreement, the accounts of which are insured by related Purchase Price and Terms Letter, the FDIC, related Assignment and Conveyance and all agreements contemplated hereby valid and binding upon the Seller in accordance with their respective terms;
(bc) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion None of the court before which any proceeding therefor may be brought.
(3) The execution and delivery of this Agreement by Agreement, the Sellerrelated Purchase Price and Terms Letter, the related Assignment and Conveyance, the sale of the Mortgage Loans by to the Seller under Purchaser, the consummation of the transactions contemplated hereby, or the fulfillment of or compliance with the terms and conditions of this Agreement, the consummation related Purchase Price and Terms Letter or the related Assignment and Conveyance will conflict with any of the terms, conditions or provisions of the Seller's charter or by-laws or materially conflict with or result in a material breach of any other of the terms, conditions or provisions of any legal restriction or any material agreement or instrument to which the Seller is now a party or by which it is bound, or constitute a default or result in an acceleration under any of the foregoing, or result in the material violation of any law, rule, regulation, order, judgment or decree to which the Seller or its property is subject;
(d) There is no litigation, suit, proceeding or investigation pending or, to the Seller's knowledge, threatened, or any order or decree outstanding, which is reasonably likely to have a material adverse effect on the sale of the Mortgage Loans, the execution, delivery, performance or enforceability of this Agreement, the related Purchase Price and Terms Letter or the related Assignment and Conveyance, or which is reasonably likely to have a material adverse effect on the financial condition of the Seller;
(e) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Seller of or compliance by the Seller with this Agreement, the related Purchase Price and Terms Letter and the related Assignment and Conveyance, except for consents, approvals, authorizations and orders which have been obtained;
(f) The consummation of the transactions contemplated by this Agreement, the related Purchase Price and Terms Letter and the fulfillment of or compliance with the terms thereof related Assignment and Conveyance are in the ordinary course of business of the Seller Seller, and will not (a) result in a material breach of any term or provision the transfer, assignment and conveyance of the charter or by-laws of Mortgage Notes and the Mortgages by the Seller or (b) materially conflict with, result in a material breach, violation or acceleration of, or result in a material default underpursuant to this Agreement, the terms of any other material agreement or instrument to which the Seller is a party or by which it may be bound, or (c) constitute a material violation of any statute, order or regulation applicable to the Seller of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Seller, other than such conflicts, breaches, violations, accelerations or defaults which, individually or on a cumulative basis, would not have a material adverse effect on the Seller related Purchase Price and its subsidiaries, taken as a whole, or the consummation of the transactions contemplated by this Agreement; Terms Letter and the related Assignment and Conveyance are not subject to bulk transfer or any similar statutory provisions in effect in any applicable jurisdiction;
(g) The Seller is has not used selection procedures that identified the Mortgage Loans as being less desirable or valuable than other comparable mortgage loans in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Seller's ability to perform or meet any of its obligations under this Agreement.portfolio at the Cut-off Date;
(4) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller that would prohibit the execution or delivery of, or performance under, this Agreement by the Seller.
(bh) The Seller hereby assigns, transfers and conveys to the Purchaser all of its rights with respect to the Mortgage Loans including, without limitation, the representations and warranties of FHHLC made pursuant to MLPA I, together with all rights of the Seller to require FHHLC to cure any breach thereof or to repurchase or substitute for any affected Mortgage Loan in accordance with MLPA I. It is understood and agreed that the obligation under MLPA I of FHHLC to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy, which may be enforced solely against FHHLC and not the Seller, respecting such breach available to the Purchaser on its behalf. The representations and warranties contained in this Agreement shall not be construed as a warranty or guaranty by the Seller as to the future payments by any Mortgagor. It is understood and agreed that the representations and warranties set forth in this Section 4.1 shall survive will treat the sale of the Mortgage Loans to the Purchaser hereunderas a sale for reporting and accounting purposes and, to the extent appropriate, for federal income tax purposes;
(i) The Seller is an approved seller/servicer of residential mortgage loans for Fannie Mae or Fxxxxxx Xxx and XXX, xith such facilities, procedures and personnel necessary for the sound servicing of such mortgage loans. The Seller 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 Frexxxx Mac and xx xxxxt has occurred which would make the Seller unable to comply with eligibility requirements or which would require notification to either Fannie Mae or Frexxxx Xac;
(j) The Seller 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. 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;
(k) Neither this Agreement nor any information, statement, tape, diskette, form, report, or other document furnished or to be furnished by or on behalf of the Seller pursuant to this Agreement or any Reconstitution agreement or in connection with the transactions contemplated hereby (including any Pass-Through Transfer or Whole Loan Transfer) contains or will contain any untrue statement of material fact or omits or will omit to state a material fact necessary to make the statements contained herein or therein not misleading;
(l) The Seller acknowledges and agrees that the Servicing Fee represents reasonable compensation for performing such services and that the entire Servicing Fee shall be treated by the Seller, for accounting and tax purposes, as compensation for the servicing and administration of the Mortgage Loans pursuant to this Agreement;
(m) The Seller acknowledges and agrees that the consideration received by it upon the sale of the Mortgage Loans constitutes fair consideration and reasonably equivalent value for such Mortgage Loans;
(n) The Seller has delivered to the Purchaser financial statements as to its last two (2) complete fiscal years for which financial statements are available. All such financial statements fairly present the pertinent results of operations and changes in financial position for each of such periods and the financial position at the end of each such period of the Seller and its subsidiaries and have been prepared in accordance with GAAP consistently applied throughout the periods involved, except as set forth in the notes thereto. There has been no change in the business, operations, financial condition, properties or assets of the Seller since the date of the Seller's financial statements that would have a material adverse effect on its ability to perform its obligations under this Agreement, the related Purchase Price and Terms Letter or the related Assignment and Conveyance;
(o) The Seller 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 sale of the Mortgage Loans; and
(p) The Seller is a member of MERS in good standing, and will comply in all material respects with the rules and procedures of MERS in connection with the servicing of the MERS Mortgage Loans for as long as such Mortgage Loans are registered with MERS.
Appears in 1 contract
Samples: Assignment, Assumption and Recognition Agreement (HSI Asset Loan Obligation Trust 2006-2)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the PurchaserPurchaser that the statements contained in this Article III, Section 3.1 are correct and complete as of the date of execution this Agreement and delivery hereof, that:will be correct and complete as of the Closing Date (as though made then and as thought the Closing Date were substituted for the date of this Agreement throughout this Article III) (except where another date or period of time is specifically stated herein for a representation or warranty).
(1a) The Seller is a limited liability company duly organized as a national banking association formed and is validly existing under the laws Laws of the United States State of America and is duly authorized and qualified to transact any and all business contemplated by this Agreement to be conducted by the Seller in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such state, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to perform any of its other obligations under this Agreement in accordance with the terms thereof.
(2) Delaware. The Seller has the all requisite power and authority to sell each Mortgage Loan, own and operate its property (including the Assets) and to execute, deliver carry on its business as now conducted.
(b) The Seller has full power and perform, and authority to enter into and consummate the transactions contemplated by this Agreement and to consummate the Transaction. This Agreement has been duly authorized and validly executed and delivered by all necessary action on the part of the Seller and constitutes the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties thereto, constitutes a legal, valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except that (a) the as such enforceability thereof may be limited by applicable bankruptcy, insolvency, moratorium, receivership and other reorganization or similar laws relating from time to time in effect that affect creditors' ’ rights generally or of creditors of depository institutions, the accounts of which are insured by the FDICgenerally, and (b) by legal and equitable limitations on the remedy availability of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be broughtremedies.
(3c) The execution execution, delivery and delivery performance by the Seller of this Agreement and consummation by the Seller of the transaction do not and will not: (i) violate the organizational documents of the Seller, the sale of the Mortgage Loans by the Seller under this Agreement, the consummation (ii) violate any decree or judgment of any court or other of governmental authority applicable to or binding on the transactions contemplated by this Agreement, and the fulfillment of or compliance with the terms thereof are in the ordinary course of business of the Seller and will not Seller; (aiii) result in a material breach violate any provision of any term federal or provision of state statute, rule or regulation which is, to the charter Seller’s knowledge, applicable to the Seller; or by-laws of (iv) violate any contract to which the Seller or (b) materially any of its assets or properties are bound, or conflict with, result in or constitute a material breach, violation default (or acceleration ofan event which with notice or lapse of time or both would become a default) under, or result in a material default undergive to others any rights of termination, the terms amendment, acceleration or cancellation of , any other material agreement agreement, indenture or instrument to which the Seller is a party or party.
(d) Except as set for under Section 4(4), There are no restrictions on assignment, including requirements for consents from third parties to any assignment (in each case) that Seller is required to obtain in connection with the transfer of the Assets by which it may be bound, or (c) constitute a material violation of any statute, order or regulation applicable Seller to the Seller of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Seller, other than such conflicts, breaches, violations, accelerations or defaults which, individually or on a cumulative basis, would not have a material adverse effect on the Seller and its subsidiaries, taken as a whole, Purchaser or the consummation of the transactions contemplated by this Agreement; and the Agreement by Seller.
(e) There are no bankruptcy or receivership proceedings pending, being contemplated by or, to Seller’s knowledge, threatened in writing against Seller or any affiliate of Seller.
(f) Seller is not a disregarded entity as defined in breach or violation Treasury Regulation §1.445-2(b)(2)(iii). Seller is not a “foreign person” within the meaning of Section 1445 of the Code.
(g) To Seller’s knowledge, neither Seller nor any material indenture or other material agreement or instrument, or of its affiliates is in violation of any statute, order laws with respect to the ownership or regulation operation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Seller's ability to perform or meet any of its obligations under this AgreementAssets.
(4h) Seller has good and marketable title to all of its owned inventories with respect to the Assets, free and clear of any encumbrances. Seller is the sole and exclusive owner of all the inventories with the Assets and no other person or entity whatsoever has any right, claim or interest (equitable or otherwise) in any of the Assets.
(i) To Seller’s knowledge, no Seller’s domain name and trade names with respect to the Assets is subject to any order, judgment or proceeding that restricts, or that is reasonably expected to restrict in any manner, the use, transfer or licensing of any domain name and trade names with respect to the Assets by Seller or that may affect the validity, use or enforceability of such domain name and trade names with respect to the Assets.
(j) Seller has not transferred ownership of or granted any license of or other right to use or authorized the retention of any rights to use any domain name and trade names with respect to the Assets.
(k) All tax returns with respect to the Seller required to be filed by the Seller for any tax period prior to the Closing Date have been, timely filed. Such tax returns are, true, complete and correct in all respects. All taxes due and owing by Seller (whether or not shown on any tax return) have been, timely paid.
(l) The Seller has withheld and paid each tax required to have been withheld and paid in connection with amounts paid or owing to any employee, independent contractor, creditor, customer, shareholder or other party, and complied with all information reporting and backup withholding provisions of applicable law.
(m) No litigation extensions or waivers of statutes of limitations have been given or requested with respect to any taxes of Seller.
(n) All deficiencies asserted, or assessments made, against Seller as a result of any examinations by any taxing authority have been fully paid.
(o) The Seller is not a party to any action by any taxing authority. There are no pending or, to or threatened actions by any taxing authority.
(p) To the best of the Seller's ’s knowledge, threatened against there are no encumbrances for taxes upon any of the Seller that would prohibit Assets nor is any taxing authority in the execution or delivery of, or performance under, this Agreement by process of imposing any encumbrances for taxes on any of the SellerAssets (other than for current taxes not yet due and payable).
(bq) The Seller hereby assignsis not, transfers and conveys to has not been, a party to, or a promoter of, a “reportable transaction” within the Purchaser all meaning of its rights Section 6707A(c)(1) of the Code and Treasury Regulations Section 1.6011 4(b).
(r) The Seller (i) is a sophisticated person with respect to the Mortgage Loans including, without limitation, the representations and warranties of FHHLC made pursuant to MLPA I, together with all rights sale of the Seller Assets; (ii) has adequate information concerning the business and financial condition of the issuer to require FHHLC to cure any breach thereof or to repurchase or substitute for any affected Mortgage Loan in accordance with MLPA I. It is understood and agreed that the obligation under MLPA I of FHHLC to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy, which may be enforced solely against FHHLC and not the Seller, respecting such breach available to the Purchaser on its behalf. The representations and warranties contained in this Agreement shall not be construed as a warranty or guaranty by the Seller as to the future payments by any Mortgagor. It is understood and agreed that the representations and warranties set forth in this Section 4.1 shall survive make an informed decision regarding the sale of the Mortgage Loans Assets; and (c) has independently and without reliance upon the Purchaser, and based on such information as the Seller has deemed appropriate, made its own analysis and decision to enter into this Agreement, except that the Seller has relied upon the Purchaser’ express representations, warranties and covenants in this Agreement. The Seller acknowledges that the Purchaser has not given the Seller any investment advice, credit information or opinion on whether the sale of the Assets is prudent.
(s) There are no outstanding rights, options, subscriptions or other agreements or commitments obligating the Seller with respect to the Purchaser hereunderAssets.
(t) The Seller has taken no action that would give rise to any claim by any person for brokerage commissions, finder’s fees or similar payments relating to this Agreement or the transactions contemplated hereby.
Appears in 1 contract
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Purchaser, Buyer that as of the Closing Date and as of each date of execution and delivery hereof, thatthereafter on which the Master Repurchase Agreement is in effect:
(1i) The Seller is duly organized as a national banking association and is organized, validly existing and in good standing under the laws of the United States of America NEW JERSEY and is duly authorized and qualified to transact any business in and all business contemplated by this Agreement to be conducted by is in good standing under the Seller in any laws of each state in which where a Mortgaged Property is located or is otherwise exempt wider applicable law from such qualification or is otherwise not required under applicable law to effect such qualification; no demand for such qualification and, has been made upon the Seller by any state having jurisdiction; and in any event, event the Seller is or will be in compliance with the doing business laws of any such state, state to the extent necessary to ensure its ability to enforce insure the enforceability of each Mortgage Loan and to perform any the servicing of its other obligations under this Agreement the Mortgage Loans in accordance with the terms thereof.of the Servicing Agreement;
(2ii) The Seller has the requisite full power and authority to sell hold each Mortgage Loan, to sell each Mortgage Loan and to execute, deliver and perform, and to enter into and consummate the consummate, all transactions contemplated by this Agreement and each Related Document. The Seller has duly authorized by all necessary action on the part of the Seller the execution, delivery and performance of this Agreement; Agreement and the Related Documents, has duly executed and delivered this Agreement, and this Agreement and the Related Documents, assuming the due authorization, execution and delivery thereof by the other parties thereto, Initial Buyer each constitutes a legal, valid and binding obligation of the Seller, enforceable against the Seller it in accordance with its terms, except that (a) the enforceability thereof as such enforcement may be limited by bankruptcy, insolvency, moratoriumreorganization, receivership and receivership, moratorium or other similar laws law relating to creditors' or affecting the rights generally or of creditors of depository institutions, the accounts of which are insured by the FDICgenerally, and by general equity principles (b) the remedy regardless of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any whether such enforcement is considered in a proceeding therefor may be brought.in equity or at law);
(3iii) The Neither the execution and delivery of this Agreement and the Related Documents, the acquisition or origination of the Mortgage Loans by the Seller, the sale of the Mortgage Loans by to the Seller under this Agreementinitial Buyer, the consummation of any other of the transactions contemplated by this Agreementhereby, and nor the fulfillment of or compliance with the terms thereof and conditions of this Agreement and the Related Documents, will conflict with or result in a breach of any of the terms, conditions or provisions of the Seller's charter or by-laws or any legal restriction or any material agreement or instrument to which the Seller is now a party or by which it is bound, or constitute a default or result in an acceleration under any of the foregoing, or result in the violation of any law, rule, regulation, order, judgment or decree to which the Seller or its property is subject;
(iv) There is no litigation pending or, to the Seller's knowledge, threatened, which if determined adversely to the Seller would adversely affect the sale of the Mortgage Loans to the Initial Buyer, the execution, delivery or enforceability of this Agreement or any Related Document, or the ability of the Seller to service the Mortgage Loans or which would have a material adverse effect on the financial condition of the Seller;
(v) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Seller of or compliance by the Seller with this Agreement and the Related Documents, the delivery of the Mortgage Files to the Buyer for the benefit of the Buyer, the sale of the Mortgage Loans to the Buyer or the consummation of the transactions contemplated by this Agreement and the Related Documents;
(vi) The consummation of the transactions contemplated by this Agreement and the Related Documents are in the ordinary course of business of the Seller Seller, and will not (a) result in a material breach of any term or provision the transfer, assignment and conveyance of the charter or by-laws of the Seller or (b) materially conflict with, result in a material breach, violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Seller is a party or by which it may be bound, or (c) constitute a material violation of any statute, order or regulation applicable to the Seller of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Seller, other than such conflicts, breaches, violations, accelerations or defaults which, individually or on a cumulative basis, would not have a material adverse effect on the Seller and its subsidiaries, taken as a whole, or the consummation of the transactions contemplated by this Agreement; Mortgage Notes and the Seller is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Seller's ability to perform or meet any of its obligations under this Agreement.
(4) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller that would prohibit the execution or delivery of, or performance under, this Agreement by the Seller.
(b) The Seller hereby assigns, transfers and conveys to the Purchaser all of its rights with respect to the Mortgage Loans including, without limitation, the representations and warranties of FHHLC made pursuant to MLPA I, together with all rights of the Seller to require FHHLC to cure any breach thereof or to repurchase or substitute for any affected Mortgage Loan in accordance with MLPA I. It is understood and agreed that the obligation under MLPA I of FHHLC to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy, which may be enforced solely against FHHLC and not the Seller, respecting such breach available to the Purchaser on its behalf. The representations and warranties contained in this Agreement shall not be construed as a warranty or guaranty Mortgages by the Seller as contemplated by this Agreement and the Related Documents are not subject to the future payments by bulk transfer or any Mortgagor. It is understood and agreed that similar statutory provisions in effect in any applicable jurisdiction;
(vii) The Seller used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding home mortgage loans in the Seller's portfolio at the Closing Date as to which the representations and warranties set forth in Section 2.02 could be made and had outstanding principal balances on the Cut-off Date of at least $10,000;
(viii) The Seller has good and marketable title to, and is the sole owner of, the Mortgage Loans, free and clear of any lien, charge or encumbrance or any ownership or participation interest in favor of any other person, and the Mortgage Notes have not been assigned, pledged, hypothecated or otherwise transferred by the Seller to any person; and
(ix) Neither this Section 4.1 shall survive the sale Agreement nor any statement, report or other document prepared and furnished by or on behalf of the Mortgage Loans Seller pursuant to this Agreement or any Related Document or in connection with the Purchaser hereundertransactions contemplated hereby contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements contained therein not misleading.
Appears in 1 contract
Samples: Seller's Warranties Agreement (Geneva Financial Corp)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Purchaser, other parties hereto as of the date of execution and delivery hereof, Closing Date that:
(1a) The Seller is has been duly organized as a national banking association and is validly existing as a corporation in good standing under the laws of the United States of America Delaware, with full power and is duly authorized authority to own its assets and qualified to transact any and all conduct its business contemplated by this Agreement to be conducted by the Seller in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such state, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to perform any of its other obligations under this Agreement in accordance with the terms thereofas presently being conducted.
(2b) The Seller has the requisite full corporate power and authority to sell each Mortgage Loan, execute and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary action on the part of the Seller to perform its obligations hereunder, and the execution, delivery and performance of this Agreement; and Agreement (including all instruments of transfer to be delivered pursuant to this Agreement, assuming the due authorization, execution and delivery thereof ) by the other parties thereto, Seller and the consummation of the transactions contemplated hereby have been duly and validly authorized.
(c) This Agreement constitutes a legal, valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except that (a) the as enforceability thereof may be limited by applicable bankruptcy, insolvency, moratoriumreorganization, receivership and moratorium or other similar laws relating to now or hereafter in effect affecting the enforcement of creditors' ’ rights generally or of creditors of depository institutions, the accounts of which are insured by the FDIC, in general and (b) the remedy of specific performance and injunctive and other forms of equitable relief except as such enforceability may be subject to equitable defenses and to the discretion limited by general principles of the court before which any equity (whether considered in a proceeding therefor may be broughtat law or in equity).
(3d) The None of the execution and delivery of this Agreement by the SellerAgreement, the sale of the Mortgage Loans by the Seller under this AgreementSeller, the consummation of any other of the transactions contemplated by this Agreementhereby, and or the fulfillment of or compliance with the terms thereof are in the ordinary course and conditions of business of the Seller and this Agreement will not (a) result in a material breach of any term or provision of the charter or by-laws of the Seller or (b) materially conflict with, result in a material breach, violation or acceleration of, with or result in a material default underbreach of any of the terms, the terms certificate of incorporation, bylaws or any other material legal restriction or any agreement or instrument to which the Seller is now a party or by which it may be is bound, or (c) constitute a material default or result in the violation of any statutelaw, rule, regulation, order, judgment or decree to which the Seller or its property is subject, or impair the ability of the Issuer to realize on the Mortgage Loans, or impair the value of the Mortgage Loans.
(e) No consent, approval, authorization or order of any court or regulation applicable to governmental agency or body is required for the execution, delivery and performance by the Seller of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Seller, other than such conflicts, breaches, violations, accelerations or defaults which, individually or on a cumulative basis, would not have a material adverse effect on compliance by the Seller and its subsidiaries, taken with this Agreement or the sale of the Mortgage Loans as a whole, or evidenced by the consummation of the transactions contemplated by this Agreement; and , or if required, such consent, approval, authorization or order has been obtained prior to the related Closing Date.
(f) There is no action, suit, proceeding or investigation pending or to its knowledge threatened against the Seller is not which, either individually or in breach or violation of the aggregate, may result in any material indenture adverse change in the business, operations, financial condition, properties or other material agreement or instrumentassets of the Seller, or in violation any material impairment of the right or ability of the Seller to carry on its business substantially as now conducted, or which would draw into question the validity of this Agreement or the Mortgage Loans or of any statuteaction taken or contemplated herein, order or regulation which would be likely to impair materially the ability of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Seller's ability Seller to perform or meet any under the terms of its obligations under this Agreement.
(4g) No litigation is pending orThe transfer, assignment and conveyance of the Mortgage Loans by the Seller pursuant to this Agreement are not subject to the best bulk transfer or any similar statutory provisions in effect in any applicable jurisdiction.
(h) 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 to hinder, delay or defraud any of the Seller's knowledge, threatened against the Seller that would prohibit the execution or delivery of, or performance under, this Agreement by the Seller’s creditors.
(bi) The consideration received by the Seller hereby assigns, transfers and conveys to upon the Purchaser all sale of its rights with respect to the Mortgage Loans including, without limitation, under this Agreement constitutes fair consideration and reasonably equivalent value for the representations Mortgage Loans.
(j) The Mortgage Loans have been selected on such Closing Date from among the outstanding fixed and warranties of FHHLC made pursuant adjustable rate one- to MLPA I, together with all rights of four-family mortgage loans in the Seller to require FHHLC to cure any breach thereof or to repurchase or substitute for any affected Mortgage Loan in accordance with MLPA I. It is understood and agreed that the obligation under MLPA I of FHHLC to cure, repurchase or replace any Mortgage Loan Seller’s portfolio at such Closing Date as to which a breach has occurred and is continuing shall constitute the sole remedy, which may be enforced solely against FHHLC and not the Seller, respecting such breach available to the Purchaser on its behalf. The representations and warranties contained in this Agreement shall not be construed as a warranty or guaranty by the Seller as to the future payments by any Mortgagor. It is understood and agreed that the representations and warranties set forth in Schedule B could be made and such selection will not be made in a manner so as to affect adversely the interests of the Issuer.
(k) None of this Section 4.1 shall survive Agreement, the information set forth in the Mortgage Loan Schedules attached hereto and the information contained in the related electronic data file delivered to the Master Servicer by the Seller, nor any statement, report or other document furnished or to be furnished by or on behalf of the Seller pursuant to this Agreement or in connection with the transactions contemplated hereby, contains any untrue statement of material fact or omits to state a material fact necessary to make the statements contained therein not misleading.
(l) The Seller has determined that the disposition of the Mortgage Loans from Seller to Depositor pursuant to this Agreement will be afforded sale treatment for accounting purposes, all on a non-consolidated basis.
(m) The Seller has not transferred the Mortgage Loans to the Depositor with any intent to hinder, delay or defraud any of its creditors.
(n) The Seller has not dealt with any broker, investment banker, agent or other Person that may be entitled to any commission or compensation in the connection with the sale of the Mortgage Loans.
(o) Neither the Seller nor anyone acting on its behalf has offered, transferred, pledged, sold or otherwise disposed of any Mortgage Loans, any interest in any Mortgage Loans or any other similar security to, or solicited any offer to buy or accept a transfer, pledge or other disposition of any Mortgage Loans, any interest in any Mortgage Loans or any other similar security from, or otherwise approached or negotiated with respect to any Mortgage Loans, any interest in any Mortgage Loans or any other similar security with, any person in any manner, or made any general solicitation by means of general advertising or in any other manner, or taken any other action which would constitute a distribution of the Mortgage Loans under the Securities Act or which would render the disposition of any Mortgage Loans a violation of Section 5 of the Securities Act or require registration pursuant thereto, nor will it act, nor has it authorized or will it authorize any person to act, in such manner with respect to the Purchaser hereunderMortgage Loans.
(p) The information about the Seller under the heading “The Trust—Assignment of Mortgage Loans” in the Prospectus relating to the Seller does not include an untrue statement of a material fact and does not omit to state a material fact, with respect to the statements made, necessary in order to make the statements in light of the circumstances under which they were made not misleading.
(q) Immediately prior to the transfer by the Seller to the Depositor of each Mortgage Loan, the Seller had good and equitable title to each Mortgage Loan, subject to no prior lien, claim, participation interest, mortgage, security interest, pledge, charge or other encumbrance or other interest of any nature. On and after the transfer by the Seller to the Depositor of each Mortgage Loan, the Depositor will have good and equitable title to each Mortgage Loan, subject to no prior lien, claim, participation interest, mortgage, security interest, pledge, charge or other encumbrance or other interest of any nature.
Appears in 1 contract
Samples: Transfer and Servicing Agreement (FBR Securitization Trust 2005-1)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Purchaser, Depositor that as of the date of execution and delivery hereof, thatClosing Date:
(1i) The the Seller is a corporation duly organized as a national banking association and is organized, validly existing and in good standing under the laws of the United States of America governing its creation and is duly authorized existence and qualified to transact any and all business contemplated by this Agreement to be conducted by the Seller in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such state, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to perform any of its other obligations under this Agreement in accordance with the terms thereof.
(2) The Seller has the requisite full corporate power and authority to sell each Mortgage Loanown its property, carry on its business as presently conducted and to execute, deliver and perform, and to enter into and consummate perform its obligations under the transactions contemplated Assignment Agreements and this Agreement;
(ii) the execution and delivery by the Seller of the Assignment Agreements and this Agreement and has have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and delivery of the Assignment Agreements or this Agreement, nor the consummation of the transactions therein or herein contemplated, nor compliance with the provisions thereof or hereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) the execution, delivery and performance by the Seller of this Agreement; the Assignment Agreements and this AgreementAgreement and the consummation of the transactions contemplated thereby and hereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) each of the Assignment Agreements and this Agreement has been duly executed and delivered by the Seller and, assuming the due authorization, execution and delivery thereof by the other parties theretoBank, in the case of the Assignment Agreements, and the Depositor, in the case of this Agreement, constitutes a legal, valid and binding obligation of the Seller, Seller enforceable against the Seller it in accordance with its respective terms, except that (a) the as such enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership subject to (A) applicable bankruptcy and insolvency laws and other similar laws relating to creditors' affecting the enforcement of the rights generally or of creditors of depository institutions, the accounts of which are insured by the FDIC, generally and (bB) the remedy general principles of specific performance and injunctive and other forms equity regardless of equitable relief may be subject to equitable defenses and whether such enforcement is considered in a proceeding in equity or at law; and
(v) there are no actions, suits or proceedings pending or, to the discretion knowledge of the court before which any proceeding therefor may be brought.
(3) The execution and delivery of this Agreement by the Seller, threatened or likely to be asserted against or affecting the sale of the Mortgage Loans Seller, before or by the Seller under this Agreementany court, the consummation of administrative agency, arbitrator or governmental body (A) with respect to any other of the transactions contemplated by the Assignment Agreements or this Agreement, and the fulfillment of Agreement or compliance (B) with the terms thereof are respect to any other matter which in the ordinary course judgment of business of the Seller will be determined adversely to the Seller and will not (a) result in a material breach of any term or provision of the charter or by-laws of if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under the Assignment Agreements or this Agreement.
(b) materially conflict withThe Seller represents and warrants upon delivery of the Mortgage Loans to the Depositor hereunder, result as to each, that, as of the Closing Date:
(i) The information set forth with respect to the Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Mortgage Loans, and the information with respect to each Mortgage Loan on the Mortgage Loan Schedule is true and correct in a all material breach, violation respects at the date or acceleration of, or result dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in a material default under, payment) in complying with the terms of any other material agreement or instrument to which Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be insured by a generally acceptable insurer against loss by fire, hazards of extended coverage and such other hazards as are customary in the area where the related Mortgaged Property is a party or by which it may be bound, or (c) constitute a material violation of any statute, order or regulation applicable located pursuant to insurance policies conforming to the Seller requirements of any courtthe guidelines of Xxxxxx Xxx or Xxxxxxx Mac. If upon origination of the Mortgage Loan, regulatory bodythe Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available), administrative agency or governmental body having jurisdiction over a flood insurance policy meeting the Sellerrequirements of the current guidelines of the Federal Flood Insurance Administration is in effect, other than such conflictswhich policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related Mortgagor thereunder to maintain the hazard insurance policy at the Mortgagor’s cost and expense, breaches, violations, accelerations or defaults which, individually or on a cumulative basis, would not have a material adverse effect and on the Seller Mortgagor’s failure to do so, authorizes the holder of the Mortgage to obtain and its subsidiariesmaintain such insurance at such Mortgagor’s cost and expense, taken as and to seek reimbursement therefor from the Mortgagor. Where required by state law or regulation, each Mortgagor has been given an opportunity to choose the carrier of the required hazard insurance, provided the policy is not a whole“master” or “blanket” hazard insurance policy covering the common facilities of a planned unit development. The hazard insurance policy is the valid and binding obligation of the insurer, or is in full force and effect, and will be in full force and effect and inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement; ;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Seller is Mortgaged Property has not been released from the lien of the Mortgage, in breach or violation of any material indenture or other material agreement or instrument, whole or in violation part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, order (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or regulation attorney’s opinion of any courttitle and abstract of title delivered to the originator of such Mortgage Loan, regulatory bodyand (3) such other matters to which like properties are commonly subject which do not, administrative agency individually or governmental body having jurisdiction over it which breach in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any security agreement, chattel mortgage or violation may materially impair equivalent document related to, and delivered to the Seller's ability Trustee in connection with a Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to perform or meet any of its obligations under this Agreement.sell and assign the same to the Trustee;
(4vi) No litigation is pending or, Immediately prior to the best of the Seller's knowledge, threatened against the Seller that would prohibit the execution or delivery of, or performance under, this Agreement by the Seller.
(b) The Seller hereby assigns, transfers transfer and conveys to the Purchaser all of its rights with respect to the Mortgage Loans including, without limitation, the representations and warranties of FHHLC made pursuant to MLPA I, together with all rights of the Seller to require FHHLC to cure any breach thereof or to repurchase or substitute for any affected Mortgage Loan in accordance with MLPA I. It is understood and agreed that the obligation under MLPA I of FHHLC to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy, which may be enforced solely against FHHLC and not the Seller, respecting such breach available to the Purchaser on its behalf. The representations and warranties contained in this Agreement shall not be construed as a warranty or guaranty by the Seller as to the future payments by any Mortgagor. It is understood and agreed that the representations and warranties set forth in this Section 4.1 shall survive the sale assignment of the Mortgage Loans to the Purchaser hereunderDepositor, the Seller was the sole owner of record and holder of each Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, of any encumbrance, equity, participation interest, lien, pledge, charge, claim or security interest, and has full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign each Mortgage Loan pursuant to this Agreement;
(vii) Each Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA Mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To our knowledge, no foreclosure action is being threatened or commenced with respect to any Mortgage Loan. There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Mortgage Loan or the use for which the premises were intended;
(ix) There are no mechanics’ or similar liens or claims which have been filed for work, labor or material (and no rights are outstanding that under the law could give rise to such liens) affecting the related Mortgaged Property which are or may be liens prior to, or equal or coordinate with, the lien of the related Mortgage;
(x) Each Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution that is supervised and examined by a Federal or State authority, or by a mortgagee approved by the Secretary of Housing and Urban Development pursuant to sections 203 and 211 of the National Housing Act;
(xi) No Mortgage Loan has a paid through date of September 1, 2007 or earlier;
(xii) Each Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2;
(xiii) Each Mortgage Loan at the time it was originated complied in all material respects with applicable local, state and federal laws, including, but not limited to, all applicable local, state and federal predatory, abusive and fair lending laws; and, specifically, (a) no Mortgage Loan secured by a Mortgaged Property located in New Jersey is a “High-Cost Home Loan” as defined in the New Jersey Home Ownership Act effective November 27, 2003 (N.J.S.A. 46:10B-22 et seq.); (b) no Mortgage Loan secured by a Mortgaged Property located in New Mexico is a “High-Cost Home Loan” as defined in the New Mexico Home Loan Protection Act effective January 1, 2004 (N.M.
Appears in 1 contract
Samples: Mortgage Loan Sale and Assignment Agreement (BNC CORP Mortgage Loan Trust 2007-Bnc4)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Purchaser, Depositor that as of the date of execution and delivery hereof, thatClosing Date:
(1i) The the Seller is a corporation duly organized as a national banking association and is organized, validly existing and in good standing under the laws of the United States of America governing its creation and is duly authorized existence and qualified to transact any and all business contemplated by this Agreement to be conducted by the Seller in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such state, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to perform any of its other obligations under this Agreement in accordance with the terms thereof.
(2) The Seller has the requisite full corporate power and authority to sell each Mortgage Loanown its property, carry on its business as presently conducted and to execute, deliver and perform, and to enter into and consummate perform its obligations under the transactions contemplated Assignment Agreements and this Agreement;
(ii) the execution and delivery by the Seller of the Assignment Agreements and this Agreement and has have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and delivery of the Assignment Agreements or this Agreement, nor the consummation of the transactions therein or herein contemplated, nor compliance with the provisions thereof or hereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) the execution, delivery and performance by the Seller of this Agreement; the Assignment Agreements and this AgreementAgreement and the consummation of the transactions contemplated thereby and hereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) each of the Assignment Agreements and this Agreement has been duly executed and delivered by the Seller and, assuming the due authorization, execution and delivery thereof by the other parties theretoBank, in the case of the Assignment Agreements, and the Depositor, in the case of this Agreement, constitutes a legal, valid and binding obligation of the Seller, Seller enforceable against the Seller it in accordance with its respective terms, except that (a) the as such enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership subject to (A) applicable bankruptcy and insolvency laws and other similar laws relating to creditors' affecting the enforcement of the rights generally or of creditors generally and (B) general principles of depository institutionsequity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) there are no actions, suits or proceedings pending or, to the accounts knowledge of which are insured the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by the FDICAssignment Agreements or this Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, and assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under the Assignment Agreements or this Agreement.
(b) the remedy The representations and warranties of specific performance and injunctive and other forms of equitable relief may be subject each Transferor with respect to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
(3) The execution and delivery of this Agreement by the Seller, the sale of the Mortgage Loans by in the applicable Transfer Agreement were made as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the consummation of any other sole right or remedy of the transactions contemplated Depositor with respect to a breach by this Agreementthe Seller of such representation and warranty (other than a breach by the Seller of the representations made by it pursuant to Sections 1.04(b)(xii), (xiii), (xiv), (xv), (xvi) and (xvii), shall be the fulfillment right to enforce the obligations of such Transferor under any applicable representation or compliance with warranty made by it. The representations made by the terms thereof are in Seller pursuant to Sections 1.04(b)(xii), (xiii), (xiv), (xv), (xvi) and (xvii) shall be direct obligations of the ordinary course of business Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than any representations and will warranties made pursuant to Sections 1.04(b)(xii), (xiii), (xiv), (xv), (xvi) and (xvii) by it) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans (other than any representations and warranties made by it pursuant to Sections 1.04(b)(xii), (xiii), (xiv), (xv), (xvi) and (xvii)) if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) result in a material breach of any term or provision of with the charter or by-laws of applicable Purchase Price for the Seller affected Mortgage Loan or (b) materially conflict withwithin the two-year period following the Closing Date, result with a Qualified Substitute Mortgage Loan for such affected Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder, as to each that, as of the Closing Date:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in a all material breach, violation respects at the date or acceleration of, or result dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in a material default under, payment) in complying with the terms of any other material agreement or instrument to which Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be insured by a generally acceptable insurer against loss by fire, hazards of extended coverage and such other hazards as are customary in the area where the related Mortgaged Property is a party or by which it may be bound, or (c) constitute a material violation of any statute, order or regulation applicable located pursuant to insurance policies conforming to the Seller requirements of any courtthe guidelines of Xxxxxx Mae or Xxxxxxx Mac. If upon origination of the Transferred Mortgage Loan, regulatory bodythe Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available), administrative agency or governmental body having jurisdiction over a flood insurance policy meeting the Sellerrequirements of the current guidelines of the Federal Flood Insurance Administration is in effect, other than such conflictswhich policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related Mortgagor thereunder to maintain the hazard insurance policy at the Mortgagor’s cost and expense, breaches, violations, accelerations or defaults which, individually or on a cumulative basis, would not have a material adverse effect and on the Seller Mortgagor’s failure to do so, authorizes the holder of the Mortgage to obtain and its subsidiariesmaintain such insurance at such Mortgagor’s cost and expense, taken as and to seek reimbursement therefor from the Mortgagor. Where required by state law or regulation, each Mortgagor has been given an opportunity to choose the carrier of the required hazard insurance, provided the policy is not a whole“master” or “blanket” hazard insurance policy covering the common facilities of a planned unit development. The hazard insurance policy is the valid and binding obligation of the insurer, or is in full force and effect, and will be in full force and effect and inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement; ;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) The related Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of such Transferred Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller is not had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in breach or violation paragraph (v) above, of any material indenture encumbrance, equity, participation interest, lien, pledge, charge, claim or other material agreement security interest, and has full right and authority, subject to no interest or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Seller's ability to perform or meet any of its obligations under this Agreement.
(4) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller that would prohibit the execution or delivery participation of, or performance underagreement with, any other party, to sell and assign each Transferred Mortgage Loan pursuant to this Agreement by the Seller.Agreement;
(bvii) The Seller hereby Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA Mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, transfers and conveys as to the Purchaser all first priority lien of its rights the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the Mortgage Loans including, without limitationproject in which such unit is located. With respect to any Title Insurance Policy, the representations originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and warranties of FHHLC made pursuant effect and will inure to MLPA I, together with all rights the benefit of the Seller to require FHHLC to cure any breach thereof or to repurchase or substitute for any affected Mortgage Loan in accordance with MLPA I. It is understood Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and agreed that no prior holder of the obligation under MLPA I of FHHLC to curerelated Mortgage, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy, which may be enforced solely against FHHLC and not including the Seller, respecting has done, by act or omission, anything that would impair the coverage of such breach available mortgagee Title Insurance Policy;
(viii) No foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loan. There is no proceeding pending for the Purchaser total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on its behalf. The representations the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(ix) There are no mechanics’ or similar liens or claims which have been filed for work, labor or material (and warranties contained in this Agreement shall not no rights are outstanding that under the law could give rise to such liens) affecting the related Mortgaged Property which are or may be construed as liens prior to, or equal or coordinate with, the lien of the related Mortgage;
(x) Each Transferred Mortgage Loan was originated by a warranty savings and loan association, savings bank, commercial bank, credit union, insurance company or guaranty similar institution that is supervised and examined by a Federal or State authority, or by a mortgagee approved by the Seller as Secretary of Housing and Urban Development pursuant to the future payments by any Mortgagor. It is understood sections 203 and agreed that the representations and warranties set forth in this Section 4.1 shall survive the sale 211 of the National Housing Act;
(xi) Each Transferred Mortgage Loans to Loan is a “qualified mortgage” within the Purchaser hereundermeaning of Section 860G of the Code and Treas. Reg. §1.860G-2;
(xii) Each Transferred Mortgage Loan at the time it was made complied in all material respects with applicable local, state and federal laws, including, but not limited to, all applicable predatory, abusive and fair lending laws; and, specifically, (a) no Transferred Mortgage Loan secured by a Mortgaged Property located in New Jersey is a “High-Cost Home Loan” as defined in the New Jersey Home Ownership Act effective November 27, 2003 (N.J.S.A. 46:10B-22 et seq.); (b) no Transferred Mortgage Loan secured by a Mortgaged Property located in New Mexico is a “High-Cost Home Loan” as defined in the New Mexico Home Loan Protection Act effective January 1, 2004 (N.M.
Appears in 1 contract
Samples: Mortgage Loan Sale and Assignment Agreement (Lehman XS Trust 2007-14h)
Representations and Warranties of the Seller. The Seller represents and wan-ants, as of the date hereof and as of the date of each Purchase hereunder and each "Sale" under the Receivables Contribution and Sale Agreement and each Selling Affiliate Receivables Contribution and Sale Agreement, as follows:
(a) The Seller hereby represents and warrants to the Purchaseris a corporation duly incorporated, as of the date of execution and delivery hereof, that:
(1) The Seller is duly organized as a national banking association and is validly existing and in good standing under the laws of the United States jurisdiction indicated at the beginning of America this Agreement.
(b) The execution, delivery and is duly authorized and qualified to transact any and all business contemplated by this Agreement to be conducted performance by the Seller in any state in which a Mortgaged Property is located or is otherwise not required of each Purchase Document to be delivered by it hereunder and under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such state, to the extent necessary to ensure its ability to enforce each Mortgage Loan Receivables Purchase and to perform any of its other obligations under this Sale Agreement in accordance with the terms thereof.
(2) The Seller has the requisite power and authority to sell each Mortgage Loan, and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement hereby and has thereby, and the Seller's use of the proceeds of Purchases and deposits to the Seller's Account, are within the Seller's corporate powers, have been duly authorized by all necessary corporate action, do not contravene (i) the Seller's charter or by-laws or (ii) any law or Contract or other contractual restriction binding on or affecting the Seller, and do not result in or require the creation of any Adverse Claim (other than pursuant hereto) upon or with respect to any of its properties; and no transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(c) No authorization or approval or other action on by, and no notice to or filing with, any governmental authority or regulatory body or other Person is required for the part of the Seller the due execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties theretoSeller of any Purchase Document to be delivered by it hereunder or thereunder, constitutes or for the perfection of or the exercise by the Agent or any Owner of its rights and remedies under each such Purchase Document, except for (i) the filings of the financing statements referred to in Article III, all of which, on or prior to the Closing Date, will have been duly made and be in full force and effect, and (ii) upon any Person's becoming a Selling Affiliate hereunder, the filings of the financing statements required pursuant to the definition of the term "Selling Affiliate", all 124 of which, on or prior to the date such Person shall become a Selling Affiliate, will have been duly made and be in full force and effect.
(d) Each Purchase Document is, or when delivered hereunder will be, the legal, valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, respective terms (except that (a) the as such enforceability thereof may be limited by applicable bankruptcy, insolvency, moratoriumreorganization, receivership and moratorium or other similar laws relating to affecting creditors' rights generally and except as such enforceability may be limited by general principles of equity, whether considered in a suit in law or in equity). Each Assignment, when delivered hereunder, will evidence the transfer to the Secondary Purchasers of creditors of depository institutions, the accounts of which are insured by the FDIClegal and equitable title to, and (b) ownership of, an undivided percentage ownership interest in the remedy of specific performance Seller Assets, or a valid and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be broughtperfected first priority security interest therein.
(3e) The execution consolidated pro-forma balance sheet of the Seller as at the Closing Date, copies of which have been furnished to the Agent, fairly presents the consolidated pro-forma financial condition of the Seller as at such date after giving effect to the transactions contemplated to take place on the date hereof pursuant to the Purchase Documents, all in accordance with generally accepted accounting principles consistently applied.
(f) There is no pending or threatened action or proceeding affecting the Seller, Maxtor or any Selling Affiliate or any of their subsidiaries before any court, governmental agency or arbitrator which may materially adversely affect (i) the collectibility of the Subject Receivables or the ability of Maxtor, the Seller, any Selling Affiliate or the Collection Agent to collect Subject Receivables or (ii) the ability of Maxtor, the Seller or any Selling Affiliate to perform its obligations under any Purchase Document to be delivered by it hereunder, or which purports to affect the legality, validity or enforceability of any Purchase Document.
(g) No proceeds of any Purchase or deposit to the Seller's Account (other than the proceeds of Seller Collections) will be used to purchase or carry any margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System).
(h) Immediately prior to the time of the initial creation of an interest hereunder in any Seller Asset, the Seller is the legal and delivery beneficial owner of the Seller Asset, in each case free and clear of any Adverse Claim except as created by this Agreement or to the extent created by the Agent or the Secondary Purchasers or any Owner. On the date of the initial creation of an interest in each Subject Receivable hereunder, such Subject Receivable (except as otherwise set forth on the Daily Report) constitutes an Eligible Receivable or Included Foreign Receivable. Upon each Purchase and deposit to the Seller's Account, the Seller shall (i) transfer to the Owner making such Purchase or deposit (and such Owner shall acquire) a valid and perfected undivided percentage ownership interest in each Seller Asset, or (ii) grant to the Agent, for the 125 benefit of the Beneficiaries, a valid and perfected first priority security interest in each Seller Asset, free, and clear of any Adverse Claim except as created by this Agreement and the Assignments or to the extent created by the Agent or the Secondary Purchasers or any Owner. No effective financing statement or other instrument similarly in effect covering any Seller Asset or any Lock Box Account or other deposit account to the extent any Collections are from time to time deposited therein is on file in any recording office, except those filed in favor of the Agent relating to the Purchase Documents, or in favor of the Seller and the Agent or those listing the Seller or Maxtor as secured party and the applicable Obligor as debtor.
(i) Each Purchaser Report and Daily Report (in each case if prepared by the Seller, Maxtor or any Selling Affiliate or any Affiliate of any thereof, or to the sale extent that information contained therein is supplied by the Seller, Maxtor or any Selling Affiliate or any Affiliate of any thereof), notice or other written item of information, exhibit, financial statement, document, book, record or report furnished or to be furnished at any time by the Seller, Maxtor or any Selling Affiliate to the Agent, the Trustee or any Owner in each case in connection with this Agreement is or will be accurate in all material respects as of its date or (except as otherwise disclosed to the Agent, the Trustee or such Owner, as the case may be, at such time) as of the Mortgage Loans by date so furnished, and as of such relevant date no such document contains or will contain any untrue statement of a material fact or omits or will omit to state a material fact necessary in order to make the Seller under this Agreementstatements contained therein, in the consummation of any other light of the transactions contemplated by this Agreementcircumstances under which they were made, and the fulfillment of or compliance with the terms thereof are in the ordinary course not misleading.
(j) The chief place of business and chief executive office of the Seller and will not the office where the Seller keeps its records concerning the Seller Assets are located at the address specified in Section 13.02 hereto (aor at such other locations, notified to the Agent and the Trustee in accordance with Section 5.01(f), in jurisdictions where all action required by Section 6.05 has been taken and completed).
(k) result in a material breach The names and addresses of any term or provision all the Lock Box Banks, together with the account numbers of the charter or by-laws Lock Box Accounts of the Seller and the Selling Affiliates, respectively, at such Lock Box Banks, are specified in Schedule I hereto (or (b) materially conflict with, result in a material breach, violation or acceleration of, or result in a material default under, the terms of any at such other material agreement or instrument to which the Seller is a party or by which it may be bound, or (c) constitute a material violation of any statute, order or regulation applicable Lock Box Banks and/or with such other Lock Box Accounts as have been notified to the Seller of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Seller, other than such conflicts, breaches, violations, accelerations or defaults which, individually or on a cumulative basis, would not Agent and for which Lock Box Agreements have a material adverse effect on the Seller and its subsidiaries, taken as a whole, or the consummation of the transactions contemplated by this Agreement; and the Seller is not been executed in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Seller's ability to perform or meet any of its obligations under this Agreementaccordance with Section 6.06(b)).
(41) No litigation is pending or, to Neither the best Seller nor any Affiliate (of the Seller's knowledge, threatened against type set forth in clause (i)(x) of the Seller that would prohibit definition of the execution or delivery of, or performance under, this Agreement by the Seller.
(bterm "Affiliate") The Seller hereby assigns, transfers and conveys to the Purchaser all of its rights with respect to the Mortgage Loans including, without limitation, the representations and warranties of FHHLC made pursuant to MLPA I, together with all rights of the Seller to require FHHLC to cure has any breach thereof direct or to repurchase indirect ownership or substitute for other financial interest in the Agent, the Secondary Purchasers or any affected Mortgage Loan in accordance with MLPA I. It is understood and agreed that the obligation under MLPA I of FHHLC to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy, which may be enforced solely against FHHLC and not the Seller, respecting such breach available to the Purchaser on its behalf. The representations and warranties contained in this Agreement shall not be construed as a warranty or guaranty by the Seller as to the future payments by any Mortgagor. It is understood and agreed that the representations and warranties set forth in this Section 4.1 shall survive the sale of the Mortgage Loans to the Purchaser hereunderBank.
Appears in 1 contract
Samples: Receivables Purchase and Sale Agreement (Maxtor Corp)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Purchaser, Depositor that as of the date of execution and delivery hereof, hereof that:
(1i) The Seller is a Delaware corporation duly organized as a national banking association and is organized, validly existing and in good standing under the laws of the United States of America governing its creation and is duly authorized existence and qualified to transact any and all business contemplated by this Agreement to be conducted by the Seller in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such state, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to perform any of its other obligations under this Agreement in accordance with the terms thereof.
(2) The Seller has the requisite full corporate power and authority to sell each Mortgage Loanown its property, and to execute, deliver and perform, carry on its business as presently conducted and to enter into and consummate perform its obligations under this Agreement;
(ii) The execution and delivery by the Seller of this Agreement have been duly authorized by all necessary corporate action on the part of the Seller; none of the execution and delivery of this Agreement, the consummation of the transactions herein contemplated or compliance with the provisions hereof will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the federal stock charter or bylaws of the Seller;
(iii) The execution, delivery and performance by the Seller of this Agreement and the consummation of the transactions contemplated hereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) This Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Depositor, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its terms except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement and has duly authorized by all necessary action on or (B) with respect to any other matter which in the part judgment of the Seller the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties thereto, constitutes a legal, valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except that (a) the enforceability thereof may will be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating determined adversely to creditors' rights generally or of creditors of depository institutions, the accounts of which are insured by the FDIC, and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
(3) The execution and delivery of this Agreement by the Seller, the sale of the Mortgage Loans by the Seller under this Agreement, the consummation of any other of the transactions contemplated by this Agreement, and the fulfillment of or compliance with the terms thereof are in the ordinary course of business of the Seller and will not (a) result in a material breach of any term or provision of the charter or by-laws of the Seller or (b) materially conflict with, result in a material breach, violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Seller is a party or by which it may be bound, or (c) constitute a material violation of any statute, order or regulation applicable if determined adversely to the Seller of any courtmaterially and adversely affect it or its business, regulatory bodyassets, administrative agency operations or governmental body having jurisdiction over the Sellercondition, other than such conflicts, breaches, violations, accelerations financial or defaults which, individually or on a cumulative basis, would not have a material adverse effect on the Seller and its subsidiaries, taken as a wholeotherwise, or the consummation of the transactions contemplated by this Agreement; and the Seller is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Seller's adversely affect its ability to perform or meet any of its obligations under this Agreement.
(4) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller that would prohibit the execution or delivery of, or performance under, this Agreement by the Seller.
(b) The Seller hereby assigns, transfers representations and conveys to warranties of the Purchaser all of its rights Transferor with respect to the Mortgage Loans including, without limitation, contained in the representations Transfer Agreement were made as of the date of the Transfer Agreement and warranties of FHHLC made brought forward to the Closing Date pursuant to MLPA I, together with all rights of the Seller to require FHHLC to cure any breach thereof or to repurchase or substitute for any affected Mortgage Loan in accordance with MLPA I. It is understood and agreed that the obligation under MLPA I of FHHLC to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy, which may be enforced solely against FHHLC and not the Seller, respecting such breach available to the Purchaser on its behalfBring Down Letter. The representations and warranties of the Transferor with respect to the Mortgage Loans contained in the Bring Down Letter were made as of the Closing Date. To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of a representation or warranty of the Transferor under the Transfer Agreement or Bring Down Letter (whether or not such fact, condition or event would also constitute a representation or warranty of the Seller under this Agreement shall not be construed as Agreement) the only rights or remedies of the Depositor with respect to a warranty or guaranty breach by the Seller as of such representation and warranty shall be first, the right to enforce the obligations of the Transferor under such applicable representation or warranty made by it and, second, only if the Transferor is unable or unwilling to fulfill its obligation to cure or repurchase such Mortgage Loan, the Depositor shall have the right to enforce such rights against the Seller under this Agreement with respect to such representation or warranty; provided, that in the event that the Depositor has received evidence of the issuance of a Transferor Affirmation Notice, the Depositor shall only be entitled to enforce any right it has against the Transferor under the Transferor Agreement and shall not have any rights against the Seller under the Sale Agreement with respect to such representation or warranty. The representations made by the Seller pursuant to Sections 1.04(b)(vii) and 1.04(b)(viii) shall be direct obligations of the Seller. In furtherance of the above, the Seller expressly acknowledges that prior to the future payments issuance of a Transferor Affirmation Notice, it shall be obligated and liable to the Depositor for any breach of a representation or warranty made under the Transfer Agreement, but only after the Transferor evidences that it is unwilling or unable to fulfill its contractual obligations under the Transfer Agreement. With respect to a breach by the Transferor of any Mortgagorrepresentation or warranty made by the Transferor in the Transfer Agreement or Bring Down Letter, if the Transferor fulfills its obligations under the provisions of the Transfer Agreement and the Bring Down Letter by substituting for the affected Mortgage Loan a mortgage loan which is not a Replacement Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Mortgage Loan. It is understood Subject to the foregoing, the Seller represents and agreed that the representations and warranties set forth in this Section 4.1 shall survive the sale warrants upon delivery of the Mortgage Loans to the Purchaser Depositor hereunder, as to each, that as of July 27, 2006:
(i) The information set forth with respect to the Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Mortgage Loans, and the information with respect to each Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) As of the Closing Date, no Mortgage Loan is in foreclosure;
(iii) As of the Closing Date, each Mortgage Loan is a "qualified mortgage" within the meaning of Section 860G of the Code (as determined without regard to Treas.
Appears in 1 contract
Samples: Mortgage Loan Sale and Assignment Agreement (Mortgage Loan Asset-Backed Certificates Series 2006-5)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Purchaser, Buyer that as of the Closing Date and as of each date of execution and delivery hereof, thatthereafter on which the Master Repurchase Agreement is in effect:
(1i) The Seller is duly organized as a national banking association and is organized, validly existing and in good standing under the laws of the United States of America South Carolina and is duly authorized and qualified to transact any business in and all business contemplated by this Agreement to be conducted by is in good standing under the Seller in any laws of each state in which where a Mortgaged Property is located or is otherwise exempt under applicable law from such qualification or is otherwise not required under applicable law to effect such qualification; no demand for such qualification and, has been made upon the Seller by any state having jurisdiction; and in any event, event the Seller is or will be in compliance with the doing business laws of any such state, state to the extent necessary to ensure its ability to enforce insure the enforceability of each Mortgage Loan and to perform any the servicing of its other obligations under this Agreement the Mortgage Loans in accordance with the terms thereof.of the Master Repurchase Agreement;
(2ii) The Seller has the requisite full power and authority to sell hold each Mortgage Loan, to sell each Mortgage Loan and to execute, deliver and perform, and to enter into and consummate the consummate, all transactions contemplated by this Agreement and each Related Document. The Seller has duly authorized by all necessary action on the part of the Seller the execution, delivery and performance of this Agreement; Agreement and the Related Documents, has duly executed and delivered this Agreement, and this Agreement and the Related Documents, assuming the due authorization, execution and delivery thereof by the other parties thereto, Initial Buyer each constitutes a legal, valid and binding obligation of the Seller, enforceable against the Seller it in accordance with its terms, except that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally or of creditors of depository institutions, the accounts of which are insured by the FDIC, and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.;
(3iii) The Neither the execution and delivery of this Agreement and the Related Documents, the acquisition or origination of the Mortgage Loans by the Seller, the sale of the Mortgage Loans by to the Seller under this AgreementInitial Buyer, the consummation of any other of the transactions contemplated by this Agreementhereby, and nor the fulfillment of or compliance with the terms thereof and conditions of this Agreement and the Related Documents, will conflict with or result in a breach of any of the terms, conditions or provisions of the Seller's charter or by-laws or any legal restriction or any agreement or instrument to which the Seller is now a party or by which it is bound, or constitute a default or result in an acceleration under any of the foregoing, or result in the violation of any law, rule, regulation, order, judgment or decree to which the Seller or its property is subject;
(iv) There is no litigation pending or, to the Seller's knowledge, threatened, which if determined adversely to the Seller would adversely affect the sale of the Mortgage Loans to the Initial Buyer, the execution, delivery or enforceability of this Agreement or any Related Document, or the ability of the Seller to service the Mortgage Loans or which would have a material adverse effect on the financial condition of the Seller, except as disclosed in the public filings with the SEC by Seller's parent corporation, HomeGold Financial, Inc.
(v) The Financial Statements delivered to Initial Buyer by Seller and the Guarantors are true, correct and complete as of the date of such Financial Statements for the period covered thereby. Since the date of the most recent Financial Statements delivered to Initial Buyer, there has not been any material adverse change in the business, operations, properties or financial position of Seller, and Seller does not know of any fact (other than matters of a general economic or political nature) which materially adversely affects or, so far as the Seller can now reasonably foresee, will materially adversely affect, the qrigination or sale of any Mortgage Loan or the business, operations, properties or financial position of Seller or the performance by Seller of its obligations under this Agreement.
(vi) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Seller of or compliance by the Seller with this Agreement and the Related Documents, the delivery of the Mortgage Files to the Buyer for the benefit of the Buyer, the sale of the Mortgage Loans to the Initial Buyer or the consummation of the transactions contemplated by this Agreement and the Related Documents;
(vii) The consummation of the transactions contemplated by this Agreement and the Related Documents are in the ordinary course of business of the Seller Seller, and will not (a) result in a material breach of any term or provision the transfer, assignment and conveyance of the charter or by-laws of the Seller or (b) materially conflict with, result in a material breach, violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Seller is a party or by which it may be bound, or (c) constitute a material violation of any statute, order or regulation applicable to the Seller of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Seller, other than such conflicts, breaches, violations, accelerations or defaults which, individually or on a cumulative basis, would not have a material adverse effect on the Seller and its subsidiaries, taken as a whole, or the consummation of the transactions contemplated by this Agreement; Mortgage Notes and the Seller is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Seller's ability to perform or meet any of its obligations under this Agreement.
(4) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller that would prohibit the execution or delivery of, or performance under, this Agreement by the Seller.
(b) The Seller hereby assigns, transfers and conveys to the Purchaser all of its rights with respect to the Mortgage Loans including, without limitation, the representations and warranties of FHHLC made pursuant to MLPA I, together with all rights of the Seller to require FHHLC to cure any breach thereof or to repurchase or substitute for any affected Mortgage Loan in accordance with MLPA I. It is understood and agreed that the obligation under MLPA I of FHHLC to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy, which may be enforced solely against FHHLC and not the Seller, respecting such breach available to the Purchaser on its behalf. The representations and warranties contained in this Agreement shall not be construed as a warranty or guaranty Mortgages by the Seller as contemplated by this Agreement and the Related Documents are not subject to the future payments by bulk transfer or any Mortgagor. It is understood and agreed that similar statutory provisions in effect in any applicable jurisdiction;
(viii) The Seller used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding home mortgage loans in the Seller's portfolio at the Closing Date as to which the representations and warranties set forth in this Section 4.1 shall survive 2.02 could be made;
(ix) The Seller has good and marketable title to, and is the sale sole owner of, the Mortgage Loans, free and clear of any lien, charge or encumbrance or any ownership or participation interest in favor of any other person, and the mortgage note has not been assigned, pledged, hypothecated or otherwise transferred to any person;
(x) The county and state identified in Section 3.03 is the location of the Mortgage Loans principal place of business of Seller and, unless otherwise specified therein, that location is the only location in which the Financing Statements must be filed to perfect the Purchaser hereundersecurity interest granted to Buyer under Paragraph 6 of the Master Repurchase Agreement. Unless otherwise specified in Section 3.03, Seller does not do business under any other names. Upon the filing of the Financing Statement for that location, Buyer will have a valid and perfected first-priority security interest as contemplated by such Paragraph for all the obligations of Seller, free and clear of all liens and encumbrances; and
(xii) Neither this Agreement nor any statement, report or other document prepared and furnished by or on behalf of the Seller pursuant to this Agreement or any Related Document 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 not misleading.
Appears in 1 contract
Samples: Seller's Warranties Agreement (Homegold Financial Inc)
Representations and Warranties of the Seller. Seller represents, warrants to Purchaser as follows:
(a) The Seller hereby represents and warrants to the Purchaser, as of the date of execution and delivery hereof, that:
(1) The Seller is duly organized as a national banking association and is limited liability company organized, validly existing and in good standing under the laws of the United States State of America and is duly Delaware and, if required, authorized and qualified to transact any business in the Commonwealth of Kentucky;
(b) This Agreement and all business contemplated by this Agreement instruments required hereby to be conducted executed and delivered to Purchaser by Seller are, or when delivered will be, the Seller in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such state, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to perform any of its other obligations under this Agreement in accordance with the terms thereof.
(2) The Seller has the requisite power and authority to sell each Mortgage Loan, and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary action on the part of the Seller the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties thereto, constitutes a legal, valid and binding obligation obligations of such Seller;
(c) Seller has full power and authority to execute and deliver this Agreement and all related documents and to carry out the Sellertransactions contemplated herein, and this Agreement and all instruments and documents delivered pursuant hereto at the Closing shall be valid and binding documents enforceable against the such Seller in accordance with its their respective terms, except that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally or of creditors of depository institutions, the accounts of which are insured by the FDIC, and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.;
(3d) The execution and delivery of this Agreement by the Seller, the sale of the Mortgage Loans by the Seller under this Agreement, and the consummation of any other of the transactions contemplated by this Agreement, and the fulfillment of herein do not conflict with or compliance with the terms thereof are in the ordinary course of business of the Seller and will not (a) result in a material breach violate any provision of any term agreement, instrument, law or provision of the charter or by-laws of the Seller or (b) materially conflict with, result in a material breach, violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument regulation to which the Seller is a party or by which it may Seller or Seller’s property is bound;
(e) No other approval or authorization of this Agreement or any other agreements to be bound, or (c) constitute a material violation of any statute, order or regulation applicable to the Seller of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Seller, other than such conflicts, breaches, violations, accelerations or defaults which, individually or on a cumulative basis, would not have a material adverse effect on the Seller and its subsidiaries, taken as a whole, or the consummation of entered into in connection with the transactions contemplated hereby are required by law or otherwise in order to make this AgreementAgreement or any other agreements entered into in connection with the transactions contemplated herein binding upon Seller;
(f) To the best of Seller’s knowledge, Seller is the owner of and has insurable title to the Property, subject only to the Permitted Exceptions;
(g) To the best of Seller’s knowledge, there are no judgments existing, nor suits, actions or proceedings pending or threatened in any court which have any material impact against Seller or the Property; and the and
(h) Seller is not in breach or violation a “foreign person” within the meaning of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Seller's ability to perform or meet any of its obligations under this Agreement.
(4) No litigation is pending or, to the best Section 1445 of the Seller's knowledgeInternal Revenue Code and the Regulations promulgated in connection therewith, threatened against the Seller that would prohibit the execution or delivery ofand is, or performance undertherefore, this Agreement by the Sellerexempt from withholding requirements of said Section.
(b) The Seller hereby assigns, transfers and conveys to the Purchaser all of its rights with respect to the Mortgage Loans including, without limitation, the representations and warranties of FHHLC made pursuant to MLPA I, together with all rights of the Seller to require FHHLC to cure any breach thereof or to repurchase or substitute for any affected Mortgage Loan in accordance with MLPA I. It is understood and agreed that the obligation under MLPA I of FHHLC to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy, which may be enforced solely against FHHLC and not the Seller, respecting such breach available to the Purchaser on its behalf. The representations and warranties contained in this Agreement shall not be construed as a warranty or guaranty by the Seller as to the future payments by any Mortgagor. It is understood and agreed that the representations and warranties set forth in this Section 4.1 shall survive the sale of the Mortgage Loans to the Purchaser hereunder.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Old National Bancorp /In/)
Representations and Warranties of the Seller. Seller represents, warrants to Purchaser as follows:
(a) The Seller hereby represents and warrants to the Purchaser, as of the date of execution and delivery hereof, that:
(1) The Seller is duly organized as a national banking association and is limited liability company organized, validly existing and in good standing under the laws of the United States State of America and is duly Delaware and, if required, authorized and qualified to transact any business in the State of Indiana and the Commonwealth of Kentucky;
(b) This Agreement and all business contemplated by this Agreement instruments required hereby to be conducted executed and delivered to Purchaser by Seller are, or when delivered will be, the Seller in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such state, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to perform any of its other obligations under this Agreement in accordance with the terms thereof.
(2) The Seller has the requisite power and authority to sell each Mortgage Loan, and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary action on the part of the Seller the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties thereto, constitutes a legal, valid and binding obligation obligations of such Seller;
(c) Seller has full power and authority to execute and deliver this Agreement and all related documents and to carry out the Sellertransactions contemplated herein, and this Agreement and all instruments and documents delivered pursuant hereto at the Closing shall be valid and binding documents enforceable against each of the Seller in accordance with its their respective terms, except that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally or of creditors of depository institutions, the accounts of which are insured by the FDIC, and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.;
(3d) The execution and delivery of this Agreement by the Seller, the sale of the Mortgage Loans by the Seller under this Agreement, and the consummation of any other of the transactions contemplated by this Agreement, and the fulfillment of herein do not conflict with or compliance with the terms thereof are in the ordinary course of business of the Seller and will not (a) result in a material breach violate any provision of any term agreement, instrument, law or provision of the charter or by-laws of the Seller or (b) materially conflict with, result in a material breach, violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument regulation to which the Seller is a party or by which it may Seller’s properties are bound;
(e) No other approval or authorization of this Agreement or any other agreements to be bound, or (c) constitute a material violation of any statute, order or regulation applicable to the Seller of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Seller, other than such conflicts, breaches, violations, accelerations or defaults which, individually or on a cumulative basis, would not have a material adverse effect on the Seller and its subsidiaries, taken as a whole, or the consummation of entered into in connection with the transactions contemplated hereby are required by law or otherwise in order to make this AgreementAgreement or any other agreements entered into in connection with the transactions contemplated herein binding upon Seller;
(f) To the best of each Seller’s knowledge, Seller is the owner of and has insurable title to the Parcel, it will be conveying to Purchaser hereunder, subject only to the Permitted Exceptions;
(g) To the best of Seller’s knowledge, there are no judgments existing, nor suits, actions or proceedings pending or threatened in any court which have any material impact against Seller or the Property; and the and
(h) Seller is not in breach or violation a “foreign persons” within the meaning of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Seller's ability to perform or meet any of its obligations under this Agreement.
(4) No litigation is pending or, to the best Section 1445 of the Seller's knowledgeInternal Revenue Code and the Regulations promulgated in connection therewith, threatened against and is, therefore, exempt from withholding requirements of said Section. All of the Seller that would prohibit the execution or delivery of, or performance under, this Agreement by the Seller.
(b) The Seller hereby assigns, transfers and conveys to the Purchaser all of its rights with respect to the Mortgage Loans including, without limitation, the foregoing representations and warranties of FHHLC made pursuant shall be deemed to MLPA I, together with all rights be true and correct as of the Seller to require FHHLC to cure any breach thereof or to repurchase or substitute for any affected Mortgage Loan in accordance with MLPA I. It is understood date of Closing and agreed that the obligation under MLPA I of FHHLC to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy, which may be enforced solely against FHHLC and not the Seller, respecting such breach available to the Purchaser on its behalf. The representations and warranties contained in this Agreement shall not be construed as a warranty or guaranty by the Seller as to the future payments by any Mortgagor. It is understood and agreed that the representations and warranties set forth in this Section 4.1 shall survive the sale Closing for a period of the Mortgage Loans to the Purchaser hereunderone hundred eighty (180) days.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Old National Bancorp /In/)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Purchaser, as of the date of execution and delivery hereof, that:
(1) The Seller is duly organized as a national banking association Kansas corporation and is validly existing and in good standing under the laws of the United States State of America Kansas and is duly authorized and qualified to transact any and all business contemplated by this Agreement to be conducted by the Seller in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such state, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to perform any of its other obligations under this Agreement in accordance with the terms thereof.
(2) The Seller has the requisite full corporate power and authority to sell each Mortgage Loan, and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary corporate action on the part of the Seller the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties thereto, constitutes a legal, valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally or of creditors of depository institutions, the accounts of which are insured by the FDIC, and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
(3) The execution and delivery of this Agreement by the Seller, the sale of the Mortgage Loans by the Seller under this Agreement, the consummation of any other of the transactions contemplated by this Agreement, and the fulfillment of or compliance with the terms thereof are in the ordinary course of business of the Seller and will not (a) result in a material breach of any term or provision of the charter or by-laws of the Seller or (b) materially conflict with, result in a material breach, violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Seller is a party or by which it may be bound, or (c) constitute a material violation of any statute, order or regulation applicable to the Seller of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Seller, other than such conflicts, breaches, violations, accelerations or defaults which, individually or on a cumulative basis, would not have a material adverse effect on the Seller and its subsidiaries, taken as a whole, or the consummation of the transactions contemplated by this Agreement; and the Seller is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Seller's ability to perform or meet any of its obligations under this Agreement.
(4) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller that would prohibit the execution or delivery of, or performance under, this Agreement by the Seller.
(b) The Seller hereby assigns, transfers makes the representations and conveys warranties set forth in Schedule B hereto to the Purchaser, as of the Closing Date, or if so specified therein, as of the Cut-off Date.
(c) Upon discovery by either of the parties hereto of a breach of a representation or warranty made pursuant to Schedule B hereto that materially and adversely affects the interests of the Purchaser all in any Mortgage Loan, the party discovering such breach shall give prompt notice thereof to the other party. The Seller hereby covenants that within 90 days of the earlier of its rights discovery or its receipt of written notice from the Purchaser of a breach of any representation or warranty made pursuant to Schedule B hereto which materially and adversely affects the interests of the Purchaser in any Mortgage Loan it will perform the procedures specified in Attachment A with respect to such Mortgage Loan (to the extent required to be so performed) and it shall cure such breach in all material respects, and if such breach is not so cured, shall, (i) if such 90-day period expires prior to the second anniversary of the Closing Date, remove such Mortgage Loan (a "Deleted Mortgage Loan") from the pool of mortgages listed on Schedule B hereto and substitute in its place a Substitute Mortgage Loan, in the manner and subject to the conditions set forth in this Section; or (ii) repurchase the affected Mortgage Loan or Mortgage Loans from the Purchaser at the Mortgage Loan Purchase Price in the manner set forth below. With respect to the representations and warranties described in this Section which are made to the best of the Seller's knowledge, if it is discovered by either the Seller or the Purchaser that the substance of such representation and warranty is inaccurate and such inaccuracy materially and adversely affects the value of the related Mortgage Loan or the interests of the Purchaser therein, notwithstanding the Seller's lack of knowledge with respect to the substance of such representation or warranty, such inaccuracy shall be deemed a breach of the applicable representation or warranty. With respect to any Substitute Mortgage Loan or Loans, the Seller shall deliver to the Trustee or to the Custodian on its behalf the Mortgage Note, the Mortgage, the related assignment of the Mortgage, and such other documents and agreements as are required by Section 3.1, with the Mortgage Note endorsed and the Mortgage assigned as required by Section 3.1. No substitution is permitted to be made in any calendar month after the Determination Date for such month. Scheduled Payments due with respect to Substitute Mortgage Loans includingin the month of substitution will be retained by the Seller. Upon such substitution, without limitationthe Substitute Mortgage Loan or Loans shall be subject to the terms of this Agreement in all respects, and the Seller shall be deemed to have made with respect to such Substitute Mortgage Loan or Loans, as of the date of substitution, the representations and warranties of FHHLC made pursuant to MLPA I, together Schedule B hereto with all rights of the Seller respect to require FHHLC to cure any breach thereof or to repurchase or substitute for any affected such Mortgage Loan in accordance with MLPA I. Loan. It is understood and agreed that the obligation under MLPA I this Agreement of FHHLC the Seller to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy, which may be enforced solely remedy against FHHLC and not the Seller, Seller respecting such breach available to the Purchaser on its behalf. The representations and warranties contained in this Agreement shall not be construed as a warranty or guaranty by the Seller as to the future payments by any Mortgagor. It is understood and agreed that the representations and warranties set forth in this Section 4.1 shall survive the sale of the Mortgage Loans to the Purchaser hereunder.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (First Horizon Asset Securities Inc)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Purchaser, as of the date of execution and delivery hereof, that:
(1) The Seller is duly organized as a national banking association Kansas corporation and is validly existing and in good standing under the laws of the United States State of America Kansas and is duly authorized and qualified to transact any and all business contemplated by this Agreement to be conducted by the Seller in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such state, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to perform any of its other obligations under this Agreement in accordance with the terms thereof.
(2) The Seller has the requisite full corporate power and authority to sell each Mortgage Loan, and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary corporate action on the part of the Seller the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties thereto, constitutes a legal, valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally or of creditors of depository institutions, the accounts of which are insured by the FDIC, and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
(3) The execution and delivery of this Agreement by the Seller, the sale of the Mortgage Loans by the Seller under this Agreement, the consummation of any other of the transactions contemplated by this Agreement, and the fulfillment of or compliance with the terms thereof are in the ordinary course of business of the Seller and will not (a) result in a material breach of any term or provision of the charter or by-laws of the Seller or (b) materially conflict with, result in a material breach, violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Seller is a party or by which it may be bound, or (c) constitute a material violation of any statute, order or regulation applicable to the Seller of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Seller, other than such conflicts, breaches, violations, accelerations or defaults which, individually or on a cumulative basis, would not have a material adverse effect on the Seller and its subsidiaries, taken as a whole, or the consummation of the transactions contemplated by this Agreement; and the Seller is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Seller's ability to perform or meet any of its obligations under this Agreement.
(4) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller that would prohibit the execution or delivery of, or performance under, this Agreement by the Seller.
(5) The Seller is a member of MERS in good standing, and will comply in all material respects with the rules and procedures of MERS in connection with the servicing of the MERS Mortgage Loans for as long as such Mortgage Loans are registered with MERS.
(b) The Seller hereby assigns, transfers makes the representations and conveys warranties set forth in Schedule B hereto to the Purchaser, as of the Closing Date, or if so specified therein, as of the Cut-off Date.
(c) Upon discovery by either of the parties hereto of a breach of a representation or warranty made pursuant to Schedule B hereto ---------- that materially and adversely affects the interests of the Purchaser all in any Mortgage Loan, the party discovering such breach shall give prompt notice thereof to the other party. The Seller hereby covenants that within 90 days of the earlier of its rights discovery or its receipt of written notice from the Purchaser of a breach of any representation or warranty made pursuant to Schedule B hereto which materially and adversely affects the interests of the Purchaser in any Mortgage Loan, it shall cure such breach in all material respects, and if such breach is not so cured, shall, (i) if such 90-day period expires prior to the second anniversary of the Closing Date, remove such Mortgage Loan (a "Deleted Mortgage Loan") from the pools of mortgages listed on Schedule B hereto and substitute in its place a Substitute Mortgage Loan, in the manner and subject to the conditions set forth in this Section; or (ii) repurchase the affected Mortgage Loan or Mortgage Loans from the Purchaser at the Mortgage Loan Purchase Price in the manner set forth below. With respect to the representations and warranties described in this Section which are made to the best of the Seller's knowledge, if it is discovered by either the Seller or the Purchaser that the substance of such representation and warranty is inaccurate and such inaccuracy materially and adversely affects the value of the related Mortgage Loan or the interests of the Purchaser therein, notwithstanding the Seller's lack of knowledge with respect to the substance of such representation or warranty, such inaccuracy shall be deemed a breach of the applicable representation or warranty. With respect to any Substitute Mortgage Loan or Loans, the Seller shall deliver to the Trustee or to the Custodian on its behalf the Mortgage Note, the Mortgage, the related assignment of the Mortgage, and such other documents and agreements as are required by Section 3.1, with the Mortgage Note endorsed and the Mortgage assigned as required by Section 3.1. No substitution is permitted to be made in any calendar month after the Determination Date for such month. Scheduled Payments due with respect to Substitute Mortgage Loans includingin the month of substitution will be retained by the Seller. Upon such substitution, without limitationthe Substitute Mortgage Loan or Loans shall be subject to the terms of this Agreement in all respects, and the Seller shall be deemed to have made with respect to such Substitute Mortgage Loan or Loans, as of the date of substitution, the representations and warranties of FHHLC made pursuant to MLPA I, together Schedule B hereto with all rights of the Seller respect to require FHHLC to cure any breach thereof or to repurchase or substitute for any affected such Mortgage Loan in accordance with MLPA I. Loan. It is understood and agreed that the obligation under MLPA I this Agreement of FHHLC the Seller to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy, which may be enforced solely remedy against FHHLC and not the Seller, Seller respecting such breach available to the Purchaser on its behalf. The representations and warranties contained in this Agreement shall not be construed as a warranty or guaranty by the Seller as to the future payments by any Mortgagor. It is understood and agreed that the representations and warranties set forth in this Section 4.1 shall survive the sale of the Mortgage Loans to the Purchaser hereunder.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (First Horizon Asset Securities Inc)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Purchaser, Depositor that as of the date of execution and delivery hereof, hereof that:
(1i) The Seller is a Delaware corporation duly organized as a national banking association and is organized, validly existing and in good standing under the laws of the United States of America governing its creation and is duly authorized existence and qualified to transact any and all business contemplated by this Agreement to be conducted by the Seller in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such state, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to perform any of its other obligations under this Agreement in accordance with the terms thereof.
(2) The Seller has the requisite full corporate power and authority to sell each Mortgage Loanown its property, and to execute, deliver and perform, carry on its business as presently conducted and to enter into and consummate perform its obligations under this Agreement;
(ii) The execution and delivery by the Seller of this Agreement have been duly authorized by all necessary corporate action on the part of the Seller; none of the execution and delivery of this Agreement, the consummation of the transactions herein contemplated or compliance with the provisions hereof will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the federal stock charter or bylaws of the Seller;
(iii) The execution, delivery and performance by the Seller of this Agreement and the consummation of the transactions contemplated hereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) This Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Depositor, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its terms except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement and has duly authorized by all necessary action on or (B) with respect to any other matter which in the part judgment of the Seller the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties thereto, constitutes a legal, valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except that (a) the enforceability thereof may will be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating determined adversely to creditors' rights generally or of creditors of depository institutions, the accounts of which are insured by the FDIC, and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
(3) The execution and delivery of this Agreement by the Seller, the sale of the Mortgage Loans by the Seller under this Agreement, the consummation of any other of the transactions contemplated by this Agreement, and the fulfillment of or compliance with the terms thereof are in the ordinary course of business of the Seller and will not (a) result in a material breach of any term or provision of the charter or by-laws of the Seller or (b) materially conflict with, result in a material breach, violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Seller is a party or by which it may be bound, or (c) constitute a material violation of any statute, order or regulation applicable if determined adversely to the Seller of any courtmaterially and adversely affect it or its business, regulatory bodyassets, administrative agency operations or governmental body having jurisdiction over the Sellercondition, other than such conflicts, breaches, violations, accelerations financial or defaults which, individually or on a cumulative basis, would not have a material adverse effect on the Seller and its subsidiaries, taken as a wholeotherwise, or the consummation of the transactions contemplated by this Agreement; and the Seller is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Seller's adversely affect its ability to perform or meet any of its obligations under this Agreement.
(4) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller that would prohibit the execution or delivery of, or performance under, this Agreement by the Seller.
(b) The Seller hereby assigns, transfers representations and conveys to warranties of the Purchaser all of its rights Transferor with respect to the Mortgage Loans includingcontained in the Transfer Agreement were made as of the date of the Transfer Agreement and brought forward to the Closing Date pursuant to the Bring Down Letter. The representations and warranties of the Transferor with respect to the Mortgage Loans contained in the Bring Down Letter were made as of the Closing Date. To the extent that any fact, without limitationcondition or event with respect to a Mortgage Loan constitutes a breach of both (i) a representation or warranty of the Transferor under the Transfer Agreement or Bring Down Letter and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than a breach by the Seller of the representations and warranties made pursuant to Sections 1.04(b)(vii) and 1.04(b)(viii)) shall be the right to enforce the obligations of the Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(vii) and 1.04(b)(viii) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of FHHLC made pursuant to MLPA I, together with all rights of the Seller to require FHHLC to cure any breach thereof or to repurchase or substitute for any affected Mortgage Loan in accordance with MLPA I. It is understood and agreed that the obligation under MLPA I of FHHLC to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy, which may be enforced solely against FHHLC and not the Seller, respecting such breach available to the Purchaser on its behalf. The representations and warranties contained in this Agreement shall not be construed as a warranty or guaranty by the Seller as to the future payments by any Mortgagor. It is understood and agreed that Section 1.04(b) (other than the representations and warranties set forth made pursuant to Sections 1.04(b)(vii) and 1.04(b)(viii)) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the Transferor in this Section 4.1 the Transfer Agreement or Bring Down Letter. The Seller shall survive have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the sale Mortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the Transferor in the Transfer Agreement or Bring Down Letter, without regard to whether the Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the Transferor fulfills its obligations under the provisions of the Transfer Agreement and the Bring Down Letter by substituting for the affected Mortgage Loan a mortgage loan which is not a Replacement Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Mortgage Loans to the Purchaser Depositor hereunder, as to each, that as of January 31, 2005:
(i) The information set forth with respect to the Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Mortgage Loans, and the information with respect to each Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) As of the Closing Date, no Mortgage Loan is in foreclosure;
(iii) As of the Closing Date, each Mortgage Loan is a "qualified mortgage" within the meaning of Section 860G of the Code (as determined without regard to Treas.
Appears in 1 contract
Samples: Mortgage Loan Sale and Assignment Agreement (Merrill Lynch Mortgage Investors Inc)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Purchaser, Depositor that as of the date of execution and delivery hereof, hereof that:
(1i) The Seller is a Delaware corporation duly organized as a national banking association and is organized, validly existing and in good standing under the laws of the United States of America governing its creation and is duly authorized existence and qualified to transact any and all business contemplated by this Agreement to be conducted by the Seller in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such state, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to perform any of its other obligations under this Agreement in accordance with the terms thereof.
(2) The Seller has the requisite full corporate power and authority to sell each Mortgage Loanown its property, and to execute, deliver and perform, carry on its business as presently conducted and to enter into and consummate perform its obligations under this Agreement;
(ii) The execution and delivery by the Seller of this Agreement have been duly authorized by all necessary corporate action on the part of the Seller; none of the execution and delivery of this Agreement, the consummation of the transactions herein contemplated or compliance with the provisions hereof will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the federal stock charter or bylaws of the Seller;
(iii) The execution, delivery and performance by the Seller of this Agreement and the consummation of the transactions contemplated hereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) This Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Depositor, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its terms except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement and has duly authorized by all necessary action on or (B) with respect to any other matter which in the part judgment of the Seller the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties thereto, constitutes a legal, valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except that (a) the enforceability thereof may will be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating determined adversely to creditors' rights generally or of creditors of depository institutions, the accounts of which are insured by the FDIC, and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
(3) The execution and delivery of this Agreement by the Seller, the sale of the Mortgage Loans by the Seller under this Agreement, the consummation of any other of the transactions contemplated by this Agreement, and the fulfillment of or compliance with the terms thereof are in the ordinary course of business of the Seller and will not (a) result in a material breach of any term or provision of the charter or by-laws of the Seller or (b) materially conflict with, result in a material breach, violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Seller is a party or by which it may be bound, or (c) constitute a material violation of any statute, order or regulation applicable if determined adversely to the Seller of any courtmaterially and adversely affect it or its business, regulatory bodyassets, administrative agency operations or governmental body having jurisdiction over the Sellercondition, other than such conflicts, breaches, violations, accelerations financial or defaults which, individually or on a cumulative basis, would not have a material adverse effect on the Seller and its subsidiaries, taken as a wholeotherwise, or the consummation of the transactions contemplated by this Agreement; and the Seller is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Seller's adversely affect its ability to perform or meet any of its obligations under this Agreement.
(4) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller that would prohibit the execution or delivery of, or performance under, this Agreement by the Seller.
(b) The Seller hereby assigns, transfers representations and conveys to warranties of the Purchaser all of its rights Transferor with respect to the Mortgage Loans includingcontained in the Transfer Agreement were made as of the date of the Transfer Agreement and brought forward to the Closing Date pursuant to the Bring Down Letter. The representations and warranties of the Transferor with respect to the Mortgage Loans contained in the Bring Down Letter were made as of the Closing Date. To the extent that any fact, without limitationcondition or event with respect to a Mortgage Loan constitutes a breach of both (i) a representation or warranty of the Transferor under the Transfer Agreement or Bring Down Letter and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than a breach by the Seller of the representations and warranties made pursuant to Sections 1.04(b)(vii) and 1.04(b)(viii)) shall be the right to enforce the obligations of the Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(vii) and 1.04(b)(viii) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of FHHLC made pursuant to MLPA I, together with all rights of the Seller to require FHHLC to cure any breach thereof or to repurchase or substitute for any affected Mortgage Loan in accordance with MLPA I. It is understood and agreed that the obligation under MLPA I of FHHLC to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy, which may be enforced solely against FHHLC and not the Seller, respecting such breach available to the Purchaser on its behalf. The representations and warranties contained in this Agreement shall not be construed as a warranty or guaranty by the Seller as to the future payments by any Mortgagor. It is understood and agreed that Section 1.04(b) (other than the representations and warranties set forth made pursuant to Sections 1.04(b)(vii) and 1.04(b)(viii)) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the Transferor in this Section 4.1 the Transfer Agreement or Bring Down Letter. The Seller shall survive have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the sale Mortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the Transferor in the Transfer Agreement or Bring Down Letter, without regard to whether the Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the Transferor fulfills its obligations under the provisions of the Transfer Agreement and the Bring Down Letter by substituting for the affected Mortgage Loan a mortgage loan which is not a Replacement Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Mortgage Loans to the Purchaser Depositor hereunder, as to each, that as of January 27, 2005:
(i) The information set forth with respect to the Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Mortgage Loans, and the information with respect to each Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) As of the Closing Date, no Mortgage Loan is in foreclosure;
(iii) As of the Closing Date, each Mortgage Loan is a "qualified mortgage" within the meaning of Section 860G of the Code (as determined without regard to Treas.
Appears in 1 contract
Samples: Mortgage Loan Sale and Assignment Agreement (Merrill Lynch Mortgage Investors Inc)
Representations and Warranties of the Seller. The Seller represents, warrants and covenants to the Purchaser that as of each Closing Date or as of such date specifically provided herein or in the applicable Assignment and Conveyance:
(a) The Seller hereby represents and warrants to the Purchaseris a corporation duly organized, as of the date of execution and delivery hereof, that:
(1) The Seller is duly organized as a national banking association and is validly existing and in good standing under the laws of the United States jurisdiction of America its incorporation and has all licenses necessary to carry out its business as now being conducted, and is duly authorized licensed and qualified to transact any business in and all business contemplated by this Agreement to be conducted by is in good standing under the Seller in any laws of each state in which a 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 andand no demand for such licensing or qualification has been made upon the Seller by any such state, and in any event, event the Seller is in compliance with the doing business laws of any such state, state to the extent necessary to ensure its ability to enforce the enforceability of each Mortgage Loan and to perform any the servicing of its other obligations under this Agreement the Mortgage Loans in accordance with the terms thereof.of this Agreement. No licenses or approvals obtained by Seller are currently suspended or revoked by any court, administrative agency, arbitrator or governmental body and no proceedings are pending which might result in such suspension or revocation;
(2b) The Seller has the requisite full power and authority and legal right to hold, transfer and convey each Mortgage Loan, to sell each Mortgage Loan, Loan and to execute, deliver and perform, and to enter into and consummate the all transactions contemplated by this Agreement Agreement, the related Purchase Price and Terms Letter and the related Assignment and Conveyance and to conduct its business as presently conducted; the Seller has duly authorized by all necessary action on the part of the Seller the execution, delivery and performance of this Agreement and any agreements contemplated hereby, has duly executed and delivered this Agreement; , the related Purchase Price and Terms Letter and the related Assignment and Conveyance, and any agreements contemplated hereby, and this Agreement, assuming the due authorizationrelated Purchase Price and Terms Letter, execution the related Assignment and delivery thereof by Conveyance and each Assignment of Mortgage to the other parties theretoPurchaser and any agreements contemplated hereby, constitutes a constitute the legal, valid and binding obligation obligations of the Seller, enforceable against the Seller it in accordance with its their respective terms, except that (a) the as such enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership reorganization and other similar laws relating laws, and by equitable principles affecting the enforceability of the rights of creditors; and all requisite corporate action has been taken by the Seller to creditors' rights generally or of creditors of depository institutionsmake this Agreement, the accounts of which are insured by related Purchase Price and Terms Letter, the FDIC, related Assignment and Conveyance and all agreements contemplated hereby valid and binding upon the Seller in accordance with their respective terms;
(bc) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion None of the court before which any proceeding therefor may be brought.
(3) The execution and delivery of this Agreement by Agreement, the Sellerrelated Purchase Price and Terms Letter, the related Assignment and Conveyance, the sale of the Mortgage Loans by to the Seller under this AgreementPurchaser, the consummation of any other of the transactions contemplated by this Agreementhereby, and or the fulfillment of or compliance with the terms thereof are in and conditions of this Agreement, the ordinary course of business related Purchase Price and Terms Letter or the related Assignment and Conveyance will conflict with any of the Seller and will not (a) terms, conditions or provisions of the Seller’s charter or by-laws or materially conflict with or result in a material breach of any term or provision of the charter terms, conditions or by-laws of the Seller or (b) materially conflict with, result in a material breach, violation or acceleration of, or result in a material default under, the terms provisions of any other legal restriction or any material agreement or instrument to which the Seller is now a party or by which it may be is bound, or (c) constitute a default or result in an acceleration under any of the foregoing, or result in the material violation of any statutelaw, rule, regulation, order, judgment or decree to which the Seller or its property is subject. The Seller is not in violation of, and the execution and delivery of this Agreement by the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order or decree of any court or any order or regulation applicable to the Seller of any courtfederal, regulatory bodystate, administrative agency municipal or governmental body agency having jurisdiction over the Seller or its assets, which violation might have consequences that would materially and adversely affect the condition (financial or otherwise) or the operation of the Seller or its assets or might have consequences that would materially and adversely affect the performance of its obligations and duties hereunder;
(d) There is no litigation, suit, proceeding or investigation pending or, to the Seller’s knowledge, other than such conflictsthreatened, breachesor any order or decree outstanding, violations, accelerations or defaults which, individually or on a cumulative basis, would not which is reasonably likely to have a material adverse effect on the sale of the Mortgage Loans, the execution, delivery, performance or enforceability of this Agreement, the related Purchase Price and Terms Letter or the related Assignment and Conveyance, or which is reasonably likely to have a material adverse effect on the financial condition of the Seller;
(e) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Seller and its subsidiaries, taken as a whole, of or compliance by the Seller with this Agreement or the consummation of the transactions contemplated by this Agreement; , the related Purchase Price and Terms Letter and the Seller is not in breach or violation related Assignment and Conveyance, except for consents, approvals, authorizations and orders which have been obtained prior to the related Closing Date;
(f) The consummation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Seller's ability to perform or meet any of its obligations under transactions contemplated by this Agreement.
(4) No litigation is pending or, to the best related Purchase Price and Terms Letter and the related Assignment and Conveyance are in the ordinary course of business of the Seller's knowledge, threatened against and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller that would prohibit pursuant to this Agreement, the execution related Purchase Price and Terms Letter and the related Assignment and Conveyance are not subject to bulk transfer or delivery of, or performance under, this Agreement by the Seller.any similar statutory provisions in effect in any applicable jurisdiction;
(bg) The Seller hereby assigns, transfers and conveys to the Purchaser all of its rights with respect to has not used selection procedures that identified the Mortgage Loans including, without limitation, the representations and warranties of FHHLC made pursuant to MLPA I, together with all rights of the Seller to require FHHLC to cure any breach thereof as being less desirable or to repurchase or substitute for any affected Mortgage Loan valuable than other comparable mortgage loans in accordance with MLPA I. It is understood and agreed that the obligation under MLPA I of FHHLC to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy, which may be enforced solely against FHHLC and not the Seller, respecting such breach available to ’s portfolio at the Purchaser on its behalf. Cut-off Date;
(h) The representations and warranties contained in this Agreement shall not be construed as a warranty or guaranty by the Seller as to the future payments by any Mortgagor. It is understood and agreed that the representations and warranties set forth in this Section 4.1 shall survive will treat the sale of the Mortgage Loans to the Purchaser hereunder.as a sale for reporting and accounting purposes and, to the extent appropriate, for federal income tax purposes;
(i) The Seller is an approved seller/servicer of residential mortgage loans for Xxxxxx Xxx, Xxxxxxx Mac and HUD, with such facilities, procedures and personnel necessary for the sound servicing of such mortgage loans. The Seller 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 either Xxxxxx Mae or Xxxxxxx Mac and no event has occurred which would make the Seller unable to comply with eligibility requirements or which would require notification to either Xxxxxx Mae or Xxxxxxx Mac;
(j) The Seller 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. 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;
(k) Neither this Agreement nor any information, statement, tape, diskette, form, report, or other document furnished or to be furnished by or on behalf of the Seller pursuant to this Agreement or any Reconstitution agreement or in connection with the transactions contemplated hereby (including any Securitization Transaction or Whole Loan Transfer) contains or will contain any untrue statement of material fact or omits or will omit to state a material fact necessary to make the statements contained herein or therein not misleading;
(l) The Seller acknowledges and agrees that the Servicing Fee represents reasonable compensation for performing such services and that the entire Servicing Fee shall be treated by the Seller, for accounting and tax purposes, as compensation for the servicing and administration of the Mortgage Loans pursuant to this Agreement;
(m) The Seller has delivered to the Purchaser financial statements as to its last two (2) complete fiscal years for which financial statements are available. All such financial statements fairly present the pertinent results of operations and changes in financial position for each of such periods and the financial position at the end of each such period of the Seller and its subsidiaries and have been prepared in accordance with GAAP consistently applied throughout the periods involved, except as set forth in the notes thereto. There has been no change in the business, operations, financial condition, properties or assets of the Seller since the date of the Seller’s financial statements that would have a material adverse effect on its ability to perform its obligations under this Agreement, the related Purchase Price and Terms Letter or the related Assignment and Conveyance;
(n) The Seller 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 sale of the Mortgage Loans;
(o) The Seller is a member of MERS in good standing, and will comply in all material respects with the rules and procedures of MERS in connection with the servicing of the MERS Mortgage Loans for as long as such Mortgage Loans are registered with MERS;
(p) Immediately prior to the payment of the Purchase Price for each Mortgage Loan, the Seller was the owner of record of the related Mortgage and the indebtedness evidenced by the related Mortgage Note and upon the payment of the Purchase Price by the Purchaser, in the event that the Seller retains record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof and only for the purpose of servicing and supervising the servicing of each Mortgage Loan;
(q) The consideration received by the Seller upon the sale of the Mortgage Loans constitutes fair consideration and reasonably equivalent value for such Mortgage Loans; and
(r) The information delivered by the Seller to the Purchaser with respect to the Seller’s loan loss, foreclosure and delinquency experience for the twelve (12) months immediately preceding the Initial Closing Date on mortgage loans underwritten to the same standards as the Mortgage Loans and covering mortgaged properties similar to the Mortgaged Properties, is true and correct in all material respects;
Appears in 1 contract
Samples: Seller’s Purchase, Warranties and Servicing Agreement (Citigroup Mortgage Loan Trust 2007-6)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Purchaser, Depositor that as of the date of execution and delivery hereof, hereof that:
(1i) The Seller is a Delaware corporation duly organized as a national banking association and is organized, validly existing and in good standing under the laws of the United States of America governing its creation and is duly authorized existence and qualified to transact any and all business contemplated by this Agreement to be conducted by the Seller in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such state, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to perform any of its other obligations under this Agreement in accordance with the terms thereof.
(2) The Seller has the requisite full corporate power and authority to sell each Mortgage Loanown its property, and to execute, deliver and perform, carry on its business as presently conducted and to enter into and consummate perform its obligations under this Agreement;
(ii) The execution and delivery by the Seller of this Agreement have been duly authorized by all necessary corporate action on the part of the Seller; none of the execution and delivery of this Agreement, the consummation of the transactions herein contemplated or compliance with the provisions hereof will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the federal stock charter or bylaws of the Seller;
(iii) The execution, delivery and performance by the Seller of this Agreement and the consummation of the transactions contemplated hereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) This Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Depositor, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its terms except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement and has duly authorized by all necessary action on or (B) with respect to any other matter which in the part judgment of the Seller the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties thereto, constitutes a legal, valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except that (a) the enforceability thereof may will be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating determined adversely to creditors' rights generally or of creditors of depository institutions, the accounts of which are insured by the FDIC, and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
(3) The execution and delivery of this Agreement by the Seller, the sale of the Mortgage Loans by the Seller under this Agreement, the consummation of any other of the transactions contemplated by this Agreement, and the fulfillment of or compliance with the terms thereof are in the ordinary course of business of the Seller and will not (a) result in a material breach of any term or provision of the charter or by-laws of the Seller or (b) materially conflict with, result in a material breach, violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Seller is a party or by which it may be bound, or (c) constitute a material violation of any statute, order or regulation applicable if determined adversely to the Seller of any courtmaterially and adversely affect it or its business, regulatory bodyassets, administrative agency operations or governmental body having jurisdiction over the Sellercondition, other than such conflicts, breaches, violations, accelerations financial or defaults which, individually or on a cumulative basis, would not have a material adverse effect on the Seller and its subsidiaries, taken as a wholeotherwise, or the consummation of the transactions contemplated by this Agreement; and the Seller is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Seller's adversely affect its ability to perform or meet any of its obligations under this Agreement.
(4) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller that would prohibit the execution or delivery of, or performance under, this Agreement by the Seller.
(b) The Seller hereby assigns, transfers representations and conveys to warranties of the Purchaser all of its rights Transferor with respect to the Option One Mortgage Loans includingcontained in the Transfer Agreement were made as of the date of (or a date specified in) the Transfer Agreement and certain of such representations and warranties have been brought forward to the Closing Date pursuant to the terms of the Bring Down Letter and the Transfer Agreement. The representations and warranties of the Transferor with respect to the Option One Mortgage Loans contained in the applicable Bring Down Letter or Transfer Agreement are being made as of the Closing Date. To the extent that any fact, without limitationcondition or event with respect to an Option One Mortgage Loan constitutes a breach of both (i) a representation or warranty of the Transferor under the Transfer Agreement or Bring Down Letter and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach of such representation and warranty (other than a breach by the Seller of the representations and warranties made pursuant to Sections 1.04(b)(vii) and 1.04(b)(viii) hereof) shall be the right to enforce the obligations of the Transferor under such applicable representation or warranty made by the Transferor. The representations and warranties of the Seller with respect to the Option One Mortgage Loans pursuant to Sections 1.04(b)(vii) and 1.04(b)(viii) hereof shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of FHHLC made pursuant to MLPA I, together with all rights of the Seller to require FHHLC to cure any breach thereof or to repurchase or substitute for any affected Mortgage Loan in accordance with MLPA I. It is understood and agreed that the obligation under MLPA I of FHHLC to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy, which may be enforced solely against FHHLC and not the Seller, respecting such breach available to the Purchaser on its behalf. The representations and warranties contained in this Agreement shall not be construed as a warranty or guaranty by the Seller as to the future payments by any Mortgagor. It is understood and agreed that Section 1.04(b) (other than the representations and warranties set forth made pursuant to Sections 1.04(b)(vii) and 1.04(b)(viii) hereof) are applicable only to facts, conditions or events that do not also constitute a breach of any representation or warranty made by the Transferor in this Section 4.1 shall survive the sale Transfer Agreement or Bring Down Letter. With respect to a breach by the Transferor of any representation or warranty made by the Transferor in the Transfer Agreement or Bring Down Letter, if the Transferor fulfills its obligations under the provisions of the Transfer Agreement and Bring Down Letter by substituting for the affected Option One Mortgage Loan a mortgage loan which is not a Replacement Mortgage Loan, the Transferor shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Option One Mortgage Loan or (b) within the two year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Option One Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Option One Mortgage Loans to the Purchaser Depositor hereunder, as to each, that as of March 1, 2007 (unless otherwise specified):
(i) The information set forth with respect to the Option One Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Option One Mortgage Loans, and the information with respect to each Option One Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) As of the Closing Date, no Option One Mortgage Loan is in foreclosure;
(iii) As of the Closing Date, each Option One Mortgage Loan is a "qualified mortgage" within the meaning of Section 860G of the Code (as determined without regard to Treas.
Appears in 1 contract
Representations and Warranties of the Seller. The Seller represents and warrants on the Closing Date, to the Servicer, the Trust and the Trustee, as follows:
(a) The Seller hereby represents and warrants to the Purchaseris a corporation duly organized, as of the date of execution and delivery hereof, that:
(1) The Seller is duly organized as a national banking association and is validly existing and in good standing under the laws of the United States state of America Delaware and is duly authorized and qualified to transact any do business, and all is in good standing in each jurisdiction in which the nature of its business contemplated by this Agreement requires it to be conducted by the Seller in any state in so qualified and which a Mortgaged Property is located or is otherwise not required under applicable law to effect permits such qualification and, in any event, is in compliance with the doing business laws of any such state, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to perform any of its other obligations under this Agreement in accordance with the terms thereof.qualification;
(2b) The Seller has the requisite power and authority to sell own and convey all of its properties and to execute and deliver this Agreement and the Related Documents and to perform the transactions contemplated hereby and thereby;
(c) The Seller is operated in such a manner that it would not be substantively consolidated in the bankruptcy trust estate of any Affiliate, such that the separate existence of the Seller and any Affiliate would be disregarded; and to such end:
(i) the Seller maintains separate records, books of account and financial statements from those of Eagle Finance and each Mortgage Loanother affiliate of Eagle Finance;
(ii) the Seller does not commingle any of its assets or funds with those of Eagle Finance or any of the other Affiliates of Eagle Finance;
(iii) the Seller maintains a separate board of directors with at least one independent director and observes all separate corporate formalities, and all decisions with respect to executethe Seller's business and daily operations have been and shall be independently made by the officers of the Seller pursuant to resolutions of its board of directors;
(iv) other than contributions of capital, deliver payment of dividends and performreturn of capital, no transactions have been entered into between the Seller and to enter into Eagle Finance or between the Seller and consummate any of the other Affiliates of Eagle Finance except a lease and expense allocation agreement and a tax sharing agreement between the Seller and Eagle Finance and such other transactions as are contemplated by this Agreement and the Related Documents;
(v) except for such administration and collection functions as Eagle Finance may perform on behalf of the Seller and the Trust pursuant to this Agreement and the Related Documents, the Seller acts solely in its own name and through its own authorized officers and agents and the Seller does not act as agent of Eagle Finance or any other Person in any capacity;
(vi) except for any funds received from Eagle Finance as a capital contribution, the Seller shall not accept for its own account funds from Eagle Finance or any of the other Affiliates of Eagle Finance; and the Seller shall not allow Eagle Finance or any of the other Affiliates of Eagle Finance otherwise to supply funds to, or guarantee any obligation of, the Seller;
(vii) the Seller shall not guarantee, or otherwise become liable with respect to, any obligation of Eagle Finance or any of the other Affiliates of Eagle Finance; and
(viii) the Seller shall at all times hold itself out to the public under the Seller's own name as a legal entity separate and distinct from Eagle Finance and the other Affiliates of Eagle Finance.
(d) The Seller has not engaged, and does not presently engage and shall not engage, in any activity other than the activities undertaken pursuant to this Agreement and the Related Documents and contemplated hereby and thereby and activities ancillary or incident thereto;
(e) The Seller has not entered into any agreement or arrangement (i) pursuant to which it grants rights in any of the Trust Assets to any Person and (ii) which does not include a provision in form and substance similar to Section 10.10;
(f) The execution, delivery and performance by the Seller of this Agreement, the Related Documents and the transactions contemplated hereby and thereby, (i) have been duly authorized by all necessary corporate or other action on the part of the Seller, (ii) do not contravene or cause the Seller to be in default under (A) the Seller's certificate of incorporation or by-laws, (B) any contractual restriction contained in any indenture, loan or credit agreement, lease, mortgage, security agreement, bond, note or other agreement or instrument binding on or affecting the Seller or its property, (C) any law, rule, regulation, order, writ, judgment, award, injunction or decree applicable to, binding on or affecting the Seller or its property and (iii) do not result in or require the creation of any Adverse Claim upon or with respect to any of the property of the Seller;
(g) This Agreement and the Related Documents have each been duly executed and delivered on behalf of the Seller;
(h) No consent of, or other action by, and no notice to or filing with, any Governmental Authority or any other party, is required for the due execution, delivery and performance by the Seller of this Agreement or any of the Related Documents or for the perfection of or the exercise by the Trustee of any of its rights or remedies thereunder which have not been obtained;
(i) Each of this Agreement; , and this Agreement, assuming each other Related Document is the due authorization, execution and delivery thereof by the other parties thereto, constitutes a legal, valid and binding obligation of the Seller, Seller enforceable against the Seller in accordance with its respective terms, except that (a) the enforceability thereof as such enforcement may be limited by bankruptcy, insolvency, moratoriumreorganization, receivership and receivership, moratorium or other similar laws relating to creditors' or affecting the rights generally or of creditors of depository institutions, the accounts of which are insured by the FDICgenerally, and by general principles of equity (bregardless of whether such enforcement is consideration in a proceeding in law or in equity);
(j) There is no pending or threatened action, suit or proceeding, nor any injunction, writ, restraining order or other order of any nature against or affecting the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to Seller, its officers or directors, or the discretion property of the Seller, in any court or tribunal, or before which any proceeding therefor may be brought.
arbitrator of any kind or before or by any Governmental Authority (3i) The execution and delivery asserting the invalidity of this Agreement by or any of the SellerRelated Documents, (ii) seeking to prevent the sale and assignment of the Mortgage Loans by the Seller under this Agreement, any Auto Loan or the consummation of any other of the transactions contemplated thereby, (iii) seeking any determination or ruling that might materially and adversely affect (A) the performance by the Seller of this Agreement, and the fulfillment of Agreement or compliance with the terms thereof are in the ordinary course of business any of the Seller and will not Related Documents, (aB) result in a material breach the validity or enforceability of this Agreement or any term or provision of the charter Related Documents, (C) any Auto Loan, (D) the federal income tax attributes of the Certificates, or by-laws (iv) asserting a claim for payment of money adverse to the Seller or (b) materially conflict with, result in a material breach, violation the conduct of its business or acceleration of, or result in a material default under, which is inconsistent with the terms of any other material agreement or instrument to which the Seller is a party or by which it may be bound, or (c) constitute a material violation of any statute, order or regulation applicable to the Seller of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Seller, other than such conflicts, breaches, violations, accelerations or defaults which, individually or on a cumulative basis, would not have a material adverse effect on the Seller and its subsidiaries, taken as a whole, or the due consummation of the transactions contemplated by this Agreement or any of the Related Documents;
(k) The principal place of business and chief executive office of the Seller are located at the address indicated in Section 10.04 and there are not now, and there have not been any, other locations where the Seller is located (as that term is used in the UCC) or keeps Records except after the date of this Agreement, as disclosed in writing to the Trustee and the Servicer;
(l) The legal name of the Seller is as set forth in the beginning of this Agreement and the Seller has not changed its name since its formation, and during such period, the Seller did not use, nor does the Seller now use any tradenames, fictitious names, assumed names or "doing business as" names;
(m) The Seller does not have any Subsidiaries;
(n) The Seller shall treat the purchase and contribution of the Trust Assets under the Sale Agreement as a sale and/or capital contribution for tax, reporting and accounting purposes.
(o) The Seller is solvent and will not become insolvent after giving effect to the transactions contemplated by this Agreement and each of the Related Documents; the Seller has no Debt; the Seller's transfers of Transferred Assets to the Trust have been and will be made for reasonably equivalent value and fair consideration; and the Seller is not Seller, after giving effect to the transactions contemplated by this Agreement and each of the Related Documents, will have an adequate amount of capital to conduct its business in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Seller's ability to perform or meet any of its obligations under this Agreement.foreseeable future; and
(4) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller that would prohibit the execution or delivery of, or performance under, this Agreement by the Seller.
(bp) The Seller hereby assignshas complied in all material respects with all applicable laws, transfers rules, regulations and conveys to the Purchaser all of its rights orders with respect to the Mortgage Loans includingit, without limitation, the representations its business and warranties of FHHLC made pursuant to MLPA I, together with properties and all rights of the Seller to require FHHLC to cure any breach thereof or to repurchase or substitute for any affected Mortgage Loan in accordance with MLPA I. It is understood and agreed that the obligation under MLPA I of FHHLC to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy, which may be enforced solely against FHHLC and not the Seller, respecting such breach available to the Purchaser on its behalf. The representations and warranties contained in this Agreement shall not be construed as a warranty or guaranty by the Seller as to the future payments by any Mortgagor. It is understood and agreed that the representations and warranties set forth in this Section 4.1 shall survive the sale of the Mortgage Loans to the Purchaser hereunderTransferred Assets.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Eagle Finance Corp)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Purchaser, Depositor that as of the date of execution and delivery hereof, hereof that:
(1i) The Seller is a Delaware corporation duly organized as a national banking association and is organized, validly existing and in good standing under the laws of the United States of America governing its creation and is duly authorized existence and qualified to transact any and all business contemplated by this Agreement to be conducted by the Seller in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such state, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to perform any of its other obligations under this Agreement in accordance with the terms thereof.
(2) The Seller has the requisite full corporate power and authority to sell each Mortgage Loanown its property, and to execute, deliver and perform, carry on its business as presently conducted and to enter into and consummate perform its obligations under this Agreement;
(ii) The execution and delivery by the Seller of this Agreement have been duly authorized by all necessary corporate action on the part of the Seller; none of the execution and delivery of this Agreement, the consummation of the transactions herein contemplated or compliance with the provisions hereof will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the federal stock charter or bylaws of the Seller;
(iii) The execution, delivery and performance by the Seller of this Agreement and the consummation of the transactions contemplated hereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) This Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Depositor, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its terms except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement and has duly authorized by all necessary action on or (B) with respect to any other matter which in the part judgment of the Seller the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties thereto, constitutes a legal, valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except that (a) the enforceability thereof may will be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating determined adversely to creditors' rights generally or of creditors of depository institutions, the accounts of which are insured by the FDIC, and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
(3) The execution and delivery of this Agreement by the Seller, the sale of the Mortgage Loans by the Seller under this Agreement, the consummation of any other of the transactions contemplated by this Agreement, and the fulfillment of or compliance with the terms thereof are in the ordinary course of business of the Seller and will not (a) result in a material breach of any term or provision of the charter or by-laws of the Seller or (b) materially conflict with, result in a material breach, violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Seller is a party or by which it may be bound, or (c) constitute a material violation of any statute, order or regulation applicable if determined adversely to the Seller of any courtmaterially and adversely affect it or its business, regulatory bodyassets, administrative agency operations or governmental body having jurisdiction over the Sellercondition, other than such conflicts, breaches, violations, accelerations financial or defaults which, individually or on a cumulative basis, would not have a material adverse effect on the Seller and its subsidiaries, taken as a wholeotherwise, or the consummation of the transactions contemplated by this Agreement; and the Seller is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Seller's adversely affect its ability to perform or meet any of its obligations under this Agreement.
(4) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller that would prohibit the execution or delivery of, or performance under, this Agreement by the Seller.
(b) The Seller hereby assigns, transfers representations and conveys to warranties of the Purchaser all of its rights Transferor with respect to the Mortgage Loans includingcontained in the Transfer Agreement were made as of the date of the Transfer Agreement and brought forward to the Closing Date pursuant to the Bring Down Letter. The representations and warranties of the Transferor with respect to the Mortgage Loans contained in the Bring Down Letter were made as of the Closing Date. To the extent that any fact, without limitationcondition or event with respect to a Mortgage Loan constitutes a breach of both (i) a representation or warranty of the Transferor under the Transfer Agreement or Bring Down Letter and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than a breach by the Seller of the representations and warranties made pursuant to Sections 1.04(b)(vii) and 1.04(b)(viii)) shall be the right to enforce the obligations of the Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(vii) and 1.04(b)(viii) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of FHHLC made pursuant to MLPA I, together with all rights of the Seller to require FHHLC to cure any breach thereof or to repurchase or substitute for any affected Mortgage Loan in accordance with MLPA I. It is understood and agreed that the obligation under MLPA I of FHHLC to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy, which may be enforced solely against FHHLC and not the Seller, respecting such breach available to the Purchaser on its behalf. The representations and warranties contained in this Agreement shall not be construed as a warranty or guaranty by the Seller as to the future payments by any Mortgagor. It is understood and agreed that Section 1.04(b) (other than the representations and warranties set forth made pursuant to Sections 1.04(b)(vii) and 1.04(b)(viii)) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the Transferor in this Section 4.1 the Transfer Agreement or Bring Down Letter. The Seller shall survive have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the sale Mortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the Transferor in the Transfer Agreement or Bring Down Letter, without regard to whether the Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the Transferor fulfills its obligations under the provisions of the Transfer Agreement and the Bring Down Letter by substituting for the affected Mortgage Loan a mortgage loan which is not a Replacement Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Mortgage Loans to the Purchaser Depositor hereunder, as to each, that as of August 31, 2005:
(i) The information set forth with respect to the Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Mortgage Loans, and the information with respect to each Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) As of the Closing Date, no Mortgage Loan is in foreclosure;
(iii) As of the Closing Date, each Mortgage Loan is a "qualified mortgage" within the meaning of Section 860G of the Code (as determined without regard to Treas.
Appears in 1 contract
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to and for the Purchaser, benefit of the Depositor and its affiliates and the Trustee that as of the REMIC Closing Date (or such other date of execution and delivery hereof, that:specifically provided herein):
(1i) The Seller is duly organized as a national banking association no written information, certificate of an officer, statement furnished in writing or written report delivered to OOMC, any affiliate of OOMC, the Master Servicer or the Trustee and is validly existing under the laws of the United States of America and is duly authorized and qualified to transact any and all business contemplated by this Agreement to be conducted prepared by the Seller in will contain any untrue statement of a material fact or omit to state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such state, to the extent material fact necessary to ensure its ability to enforce each Mortgage Loan and to perform any of its other obligations under this Agreement in accordance with make the terms thereof.information, certificate, statement or report not misleading;
(2ii) The Seller has the requisite power and authority to sell each Mortgage Loan, and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary action on the part of the Seller the execution, delivery representations and performance of this Agreement; warranties contained in Exhibits 2-A and this Agreement, assuming the due authorization, execution 2-B hereto is true and delivery thereof by the other parties thereto, constitutes a legal, valid correct. With respect to such representations and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally or of creditors of depository institutions, the accounts of warranties which are insured by the FDIC, and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
(3) The execution and delivery of this Agreement by the Seller, the sale of the Mortgage Loans by the Seller under this Agreement, the consummation of any other of the transactions contemplated by this Agreement, and the fulfillment of or compliance with the terms thereof are in the ordinary course of business of the Seller and will not (a) result in a material breach of any term or provision of the charter or by-laws of the Seller or (b) materially conflict with, result in a material breach, violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Seller is a party or by which it may be bound, or (c) constitute a material violation of any statute, order or regulation applicable to the Seller of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Seller, other than such conflicts, breaches, violations, accelerations or defaults which, individually or on a cumulative basis, would not have a material adverse effect on the Seller and its subsidiaries, taken as a whole, or the consummation of the transactions contemplated by this Agreement; and the Seller is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Seller's ability to perform or meet any of its obligations under this Agreement.
(4) No litigation is pending or, made to the best of the Seller's knowledge, threatened against if the Seller discovers or receives written notice, which may come from the Purchaser, the Servicer, the Custodian or any Interested Party, that would prohibit the execution substance of such representation and warranty is inaccurate and such inaccuracy materially and adversely affects the interest of the Purchaser or delivery ofany Interested Person in the related Mortgage Loan, or performance under, this Agreement by notwithstanding the Seller.
(b) The Seller hereby assigns, transfers and conveys to the Purchaser all 's lack of its rights knowledge with respect to the Mortgage Loans includingsubstance of such representation of warranty, without limitationsuch inaccuracy shall be deemed a breach thereof;
(iii) as of the date of the Prospectus Supplement and as of the REMIC Closing Date, the Seller's Information will be true and accurate and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they are made, not misleading. For purposes hereof and of each of the related Standard Terms Agreements, the "Seller's Information" shall include all information included in the Prospectus Supplement under the headings "Summary of Prospectus Supplement--The Mortgage Pool" and "Description of the Mortgage Pool", or elsewhere in the Prospectus Supplement with respect to the matters discussed under such captions, to the extent based upon any information provided by or approved by the Seller including the information in the Mortgage Loan Schedules attached hereto as Exhibits 1 and the Seller's representations and warranties of FHHLC made pursuant relating to MLPA I, together with all rights of the Seller to require FHHLC to cure any breach thereof or to repurchase or substitute for any affected Mortgage Loan in accordance with MLPA I. It is understood and agreed that the obligation under MLPA I of FHHLC to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy, which may be enforced solely against FHHLC and not the Seller, respecting such breach available to the Purchaser on its behalf. The representations and warranties contained in this Agreement shall not be construed as a warranty or guaranty by the Seller as to the future payments by any Mortgagor. It is understood and agreed that the representations and warranties set forth in this Section 4.1 shall survive the sale of the Mortgage Loans to the Purchaser hereunderattached hereto as Exhibits.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Option One Mortgage Acceptance Corp)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Purchaser, Depositor that as of the date of execution and delivery hereof, hereof that:
(1i) The Seller is a Delaware corporation duly organized as a national banking association and is organized, validly existing and in good standing under the laws of the United States of America governing its creation and is duly authorized existence and qualified to transact any and all business contemplated by this Agreement to be conducted by the Seller in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such state, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to perform any of its other obligations under this Agreement in accordance with the terms thereof.
(2) The Seller has the requisite full corporate power and authority to sell each Mortgage Loanown its property, and to execute, deliver and perform, carry on its business as presently conducted and to enter into and consummate perform its obligations under this Agreement;
(ii) The execution and delivery by the Seller of this Agreement have been duly authorized by all necessary corporate action on the part of the Seller; none of the execution and delivery of this Agreement, the consummation of the transactions herein contemplated or compliance with the provisions hereof will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the federal stock charter or bylaws of the Seller;
(iii) The execution, delivery and performance by the Seller of this Agreement and the consummation of the transactions contemplated hereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) This Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Depositor, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its terms except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement and has duly authorized by all necessary action on or (B) with respect to any other matter which in the part judgment of the Seller the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties thereto, constitutes a legal, valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except that (a) the enforceability thereof may will be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating determined adversely to creditors' rights generally or of creditors of depository institutions, the accounts of which are insured by the FDIC, and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
(3) The execution and delivery of this Agreement by the Seller, the sale of the Mortgage Loans by the Seller under this Agreement, the consummation of any other of the transactions contemplated by this Agreement, and the fulfillment of or compliance with the terms thereof are in the ordinary course of business of the Seller and will not (a) result in a material breach of any term or provision of the charter or by-laws of the Seller or (b) materially conflict with, result in a material breach, violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Seller is a party or by which it may be bound, or (c) constitute a material violation of any statute, order or regulation applicable if determined adversely to the Seller of any courtmaterially and adversely affect it or its business, regulatory bodyassets, administrative agency operations or governmental body having jurisdiction over the Sellercondition, other than such conflicts, breaches, violations, accelerations financial or defaults which, individually or on a cumulative basis, would not have a material adverse effect on the Seller and its subsidiaries, taken as a wholeotherwise, or the consummation of the transactions contemplated by this Agreement; and the Seller is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Seller's adversely affect its ability to perform or meet any of its obligations under this Agreement.
(4) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller that would prohibit the execution or delivery of, or performance under, this Agreement by the Seller.
(b) The Seller hereby assigns, transfers representations and conveys to warranties of the Purchaser all of its rights Transferor with respect to the Mortgage Loans including, without limitation, contained in the representations Transfer Agreement were made as of the date of the Transfer Agreement and warranties of FHHLC made brought forward to the Closing Date pursuant to MLPA I, together with all rights of the Seller to require FHHLC to cure any breach thereof or to repurchase or substitute for any affected Mortgage Loan in accordance with MLPA I. It is understood and agreed that the obligation under MLPA I of FHHLC to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy, which may be enforced solely against FHHLC and not the Seller, respecting such breach available to the Purchaser on its behalfBring Down Letter. The representations and warranties of the Transferor with respect to the Mortgage Loans contained in the Bring Down Letter were made as of the Closing Date. To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of a representation or warranty of the Transferor under the Transfer Agreement or Bring Down Letter (whether or not such fact, condition or event would also constitute a representation or warranty of the Seller under this Agreement shall not be construed as Agreement) the only rights or remedies of the Depositor with respect to a warranty or guaranty breach by the Seller as of such representation and warranty shall be first, the right to enforce the obligations of the Transferor under such applicable representation or warranty made by it and, second, only if the Transferor is unable or unwilling to fulfill its obligation to cure or repurchase such Mortgage Loan, the Depositor shall have the right to enforce such rights against the Seller under this Agreement with respect to such representation or warranty; provided, that in the event that the Depositor has received evidence of the issuance of a Transferor Affirmation Notice, the Depositor shall only be entitled to enforce any right it has against the Transferor under the Transferor Agreement and shall not have any rights against the Seller under the Sale Agreement with respect to such representation or warranty. The representations made by the Seller pursuant to Sections 1.04(b)(vii) and 1.04(b)(viii) shall be direct obligations of the Seller. In furtherance of the above, the Seller expressly acknowledges that prior to the future payments issuance of a Transferor Affirmation Notice, it shall be obligated and liable to the Depositor for any breach of a representation or warranty made under the Transfer Agreement, but only after the Transferor evidences that it is unwilling or unable to fulfill its contractual obligations under the Transfer Agreement. With respect to a breach by the Transferor of any Mortgagorrepresentation or warranty made by the Transferor in the Transfer Agreement or Bring Down Letter, if the Transferor fulfills its obligations under the provisions of the Transfer Agreement and the Bring Down Letter by substituting for the affected Mortgage Loan a mortgage loan which is not a Replacement Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Mortgage Loan. It is understood Subject to the foregoing, the Seller represents and agreed that the representations and warranties set forth in this Section 4.1 shall survive the sale warrants upon delivery of the Mortgage Loans to the Purchaser Depositor hereunder, as to each, that as of April 8, 2005:
(i) The information set forth with respect to the Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Mortgage Loans, and the information with respect to each Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) As of the Closing Date, no Mortgage Loan is in foreclosure;
(iii) As of the Closing Date, each Mortgage Loan is a "qualified mortgage" within the meaning of Section 860G of the Code (as determined without regard to Treas.
Appears in 1 contract
Samples: Mortgage Loan Sale and Assignment Agreement (Merrill Lynch Mortgage Investors Ownit Series 2005-2)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the PurchaserTrust Fund and the Trustee on behalf of the Certificateholders that, as of the Closing Date or as of such date of execution and delivery hereof, thatspecifically provided herein:
(1i) The the Seller is duly organized organized, validly existing and in good standing as a national banking association and is validly existing corporation under the laws of the United States State of America New York and is duly authorized and qualified to transact any and all business contemplated by this Agreement to be conducted by will remain in compliance with the Seller in any laws of each state in which a any Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such state, to the extent necessary to ensure fulfill its ability obligations hereunder;
(ii) the Seller has the power and authority to enforce hold each Mortgage Loan and to perform any of its other obligations under this Agreement in accordance with the terms thereof.
(2) sell each Mortgage Loan. The Seller has the requisite power and authority to sell each Mortgage Loan, and to execute, deliver and perform, and to enter into and consummate the consummate, all transactions contemplated by this Agreement and Agreement. The Seller has duly authorized by all necessary action on the part of the Seller the execution, delivery and performance of this Agreement; , has duly executed and delivered this Agreement and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties theretohereto, constitutes a legal, valid and binding obligation of the Seller, enforceable against the Seller it in accordance with its terms, terms except that (a) as the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and insolvency or reorganization or other similar laws relating in relation to creditors' the rights generally or of creditors of depository institutions, the accounts of which are insured by the FDIC, and generally;
(biii) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
(3) The execution and delivery of this Agreement by the Seller, the sale of the Mortgage Loans by the Seller under this Agreement, the consummation of any other of the transactions contemplated by this Agreement, and the fulfillment performance of or and compliance with the terms thereof are in the ordinary course of business of the Seller and this Agreement will not (a) violate the Seller’s articles of incorporation or by-laws, respectively, or constitute a default under or result in a material breach of any term or provision of the charter or by-laws of the Seller or (b) materially conflict with, result in a material breach, violation or acceleration of, or result in a any material default undercontract, the terms of any other material agreement or other instrument to which the Seller is a party or by which it may be bound, or (c) constitute a material violation of any statute, order or regulation applicable to the Seller or its assets;
(iv) the Seller is not in violation of, and the execution and delivery of this Agreement by the Seller and its respective performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order or decree of any courtcourt or any order or regulation of any federal, regulatory bodystate, administrative agency municipal or governmental body agency having jurisdiction over the SellerSeller or its assets, other than such conflicts, breaches, violations, accelerations which violation might have consequences that would materially and adversely affect the condition (financial or defaults which, individually otherwise) or on a cumulative basis, would not have a material adverse effect on the operation of the Seller or its assets or might have consequences that would materially and adversely affect the performance of its subsidiariesobligations and duties hereunder;
(v) the Seller does not believe, taken nor does it have any reason or cause to believe, that it cannot perform each and every covenant contained in this Agreement;
(vi) the Seller has good, equitable and indefeasible title to the Mortgage Loans, free and clear of any and all liens, pledges, charges or security interests of any nature encumbering the Mortgage Loans and upon the payment of the Purchase Price (as a wholedefined in the Mortgage Loan Purchase Agreement) by the Depositor, the Depositor will have good and marketable title to the Mortgage Notes and Mortgage Loans, free and clear of all liens or encumbrances;
(vii) the Mortgage Loans are not being transferred by the Seller with any intent to hinder, delay or defraud any creditors of the Seller;
(viii) there are no actions or proceedings against, or investigations known to, the Seller before any court, administrative or other tribunal (A) that might prohibit the seller from entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans or the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by the Seller of its obligations under, or validity or enforceability of, this Agreement or the Mortgage Loan Purchase Agreement;
(ix) no consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Seller of, or compliance by the Seller with, this Agreement or the consummation of the transactions contemplated by this Agreement, except for such consents, approvals, authorizations or orders, if any, that have been obtained;
(x) no certificate of an officer, written statement or written report delivered pursuant to the terms hereof of the Seller contains any untrue statement of a material fact or omits to state any material fact necessary to make the certificate, statement or repot not misleading;
(xi) the consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions; and and
(xii) the Seller is not in breach or violation of any material indenture or other material agreement or instrumentinsolvent, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Seller's ability to perform or meet any of its obligations under this Agreement.
(4) No litigation is pending or, to the best of the Seller's knowledge, threatened against nor will the Seller that would prohibit the execution or delivery of, or performance under, this Agreement be made insolvent by the Seller.
(b) The Seller hereby assigns, transfers and conveys to the Purchaser all of its rights with respect to the Mortgage Loans including, without limitation, the representations and warranties of FHHLC made pursuant to MLPA I, together with all rights of the Seller to require FHHLC to cure any breach thereof or to repurchase or substitute for any affected Mortgage Loan in accordance with MLPA I. It is understood and agreed that the obligation under MLPA I of FHHLC to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy, which may be enforced solely against FHHLC and not the Seller, respecting such breach available to the Purchaser on its behalf. The representations and warranties contained in this Agreement shall not be construed as a warranty or guaranty by the Seller as to the future payments by any Mortgagor. It is understood and agreed that the representations and warranties set forth in this Section 4.1 shall survive the sale transfer of the Mortgage Loans to the Purchaser hereunderDepositor, nor is the Seller aware of any pending insolvency of the Seller.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (MortgageIT Mortgage Loan Trust 2006-1)
Representations and Warranties of the Seller. The Seller represents and warrants as follows:
(a) The Seller hereby represents and warrants to the Purchaser(i) is a corporation duly incorporated, as of the date of execution and delivery hereof, that:
(1) The Seller is duly organized as a national banking association and is validly existing and in good standing under the laws of the United States jurisdiction indicated at the beginning of America this Agreement, (ii) is duly qualified to do business, and is duly authorized and qualified to transact any and all in good standing, in every jurisdiction where the nature of its business contemplated by this Agreement requires it to be conducted by the Seller in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification andso qualified, in any event, is in compliance with the doing business laws of any such state, except to the extent necessary that any failure to ensure its ability be so qualified or in good standing as a foreign entity could not reasonably be expected to enforce each Mortgage Loan and to perform any of its other obligations under this Agreement in accordance with the terms thereof.
have a material adverse effect upon (2) The Seller has the requisite power and authority to sell each Mortgage Loan, and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary action on the part of the Seller the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties thereto, constitutes a legal, valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except that (aA) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally financial condition or of creditors of depository institutions, the accounts of which are insured by the FDIC, and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
(3) The execution and delivery of this Agreement by the Seller, the sale of the Mortgage Loans by the Seller under this Agreement, the consummation of any other of the transactions contemplated by this Agreement, and the fulfillment of or compliance with the terms thereof are in the ordinary course of business of the Seller and will not (a) result in a material breach of any term or provision of the charter or by-laws operations of the Seller or (bB) materially conflict with, result in a material breach, violation the ability of the Seller to perform its obligations under this Agreement or acceleration of, or result in a material default under, the terms of any other material agreement or instrument Transaction Document to which the Seller is a party party; (iii) has the requisite corporate power and authority and the legal right to own, sell, assign, transfer or encumber and operate its properties, to lease the property it operates under lease, and to conduct its business, in each case, as now, heretofore and proposed to be conducted; and (iv) subject to specific representations set forth herein regarding ERISA, tax laws and other laws, is in compliance in all material respects with all applicable provisions of law. The Seller has no subsidiaries. All of the outstanding shares of stock of the Seller are owned by which it may be boundthe Parent, one or more direct or indirect wholly-owned subsidiaries of the Parent, or (c) constitute a material violation corporation owned directly or indirectly by the stockholders of any statute, order or regulation applicable the Parent in substantially the same proportions as their ownership of stock of the Parent. The Seller is entitled to the Seller of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Seller, other than such conflicts, breaches, violations, accelerations or defaults which, individually or on a cumulative basis, would not have a material adverse effect on the Seller and its subsidiaries, taken as a whole, or the consummation benefit of the transactions contemplated by this Agreement; and Canada-United States Income Tax Convention (the Seller is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Seller's ability to perform or meet any of its obligations under this Agreement.
(4) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller that would prohibit the execution or delivery of, or performance under, this Agreement by the Seller“Treaty”).
(b) The execution, delivery and performance by the Seller of the Transaction Documents to which it is a party and the other documents delivered by it hereunder, and the transactions contemplated hereby assignsand thereby, transfers including the Seller’s use of the proceeds of Purchases and conveys reinvestments, are within the Seller’s corporate powers, have been duly authorized by all necessary corporate action, do not (i) contravene the Seller’s charter or by-laws, (ii) violate any applicable law, rule, regulation, order, writ, judgment, injunction, decree, determination or award, or (iii) breach or result in a default under, or result in the acceleration of (or entitle any party to accelerate) the maturity of any obligation of the Seller under, or result in or require the creation of any Lien upon or security interest in any property of the Seller pursuant to the Purchaser all terms of, any Contract or any other agreement or instrument (other than any Transaction Document) binding on or affecting the Seller or any of its properties.
(c) No consent, authorization or approval or other action by, and no notice to or filing with, any Governmental Authority or regulatory body or other Person is required for the due execution, delivery and performance by the Seller of any Transaction Document to which it is a party or any other agreement or document delivered hereunder or for the perfection of or the exercise by any Indemnified Party of its rights with respect and remedies under the Transaction Documents and such other agreements or documents, except for the filings to perfect the Mortgage Loans including, without limitation, interest of the representations and warranties of FHHLC made Agent referred to on Exhibit G or required to be delivered pursuant to MLPA I, together with all rights of the Seller to require FHHLC to cure any breach thereof or to repurchase or substitute for any affected Mortgage Loan in accordance with MLPA I. It is understood and agreed that the obligation under MLPA I of FHHLC to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy, which may be enforced solely against FHHLC and not the Seller, respecting such breach available to the Purchaser on its behalf. The representations and warranties contained in this Agreement shall not be construed as a warranty or guaranty by the Seller as to the future payments by any Mortgagor. It is understood and agreed that the representations and warranties set forth in this Section 4.1 shall survive the sale of the Mortgage Loans to the Purchaser hereunder3.01.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Crown Holdings Inc)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Purchaser, Purchaser that as of the Closing Date and as of each date of execution and delivery hereof, thatthereafter on which the Master Repurchase Agreement is in effect:
(1i) The Seller is duly organized as a national banking association and is organized, validly existing and in good standing under the laws of the United States of America KANSAS and is duly authorized and qualified to transact any business in and all business contemplated by this Agreement to be conducted by is in good standing under the Seller in any laws of each state in which where a Mortgaged Property is located or is otherwise exempt under applicable law from such qualification or is otherwise not required under applicable law to effect such qualification; no demand for such qualification and, has been made upon the Seller by any state having jurisdiction; and in any event, event the Seller is or will be in compliance with the doing business laws of any such state, state to the extent necessary to ensure its ability to enforce insure the enforceability of each Mortgage Loan and to perform any the servicing of its other obligations under this Agreement the Mortgage Loans in accordance with the terms thereof.of the Servicing Agreement;
(2ii) The Seller has the requisite full power and authority to sell hold each Mortgage Loan, to sell each Mortgage Loan and to execute, deliver and perform, and to enter into and consummate the consummate, all transactions contemplated by this Agreement and each Related Document. The Seller has duly authorized by all necessary action on the part of the Seller the execution, delivery and performance of this Agreement; Agreement and the Related Documents, has duly executed and delivered this Agreement, and this Agreement and the Related Documents, assuming the due authorization, execution and delivery thereof by the other parties thereto, Initial Purchaser each constitutes a legal, valid and binding obligation of the Seller, enforceable against the Seller it in accordance with its terms, except that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally or of creditors of depository institutions, the accounts of which are insured by the FDIC, and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.;
(3iii) The Neither the execution and delivery of this Agreement and the Related Documents, the acquisition or origination of the Mortgage Loans by the Seller, the sale of the Mortgage Loans by to the Seller under this AgreementInitial Purchaser, the consummation of any other of the transactions contemplated by this Agreementhereby, and nor the fulfillment of or compliance with the terms thereof and conditions of this Agreement and the Related Documents, will conflict with or result in a breach of any of the terms, conditions or provisions of the Seller's charter or by-laws or any legal restriction or any agreement or instrument to which the Seller is now a party or by which it is bound, or constitute a default or result in an acceleration under any of the foregoing, or result in the violation of any law, rule, regulation, order, judgment or decree to which the Seller or its property is subject;
(iv) There is no litigation pending or, to the Seller's knowledge, threatened, which if determined adversely to the Seller would adversely affect the sale of the Mortgage Loans to the Initial Purchaser, the execution, delivery or enforceability of this Agreement or any Related Document, or the ability of the Seller to service the Mortgage Loans or which would have a material adverse effect on the financial condition of the Seller;
(v) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Seller of or compliance by the Seller with this Agreement and the Related Documents, the delivery of the Mortgage Files to the Purchaser for the benefit of the Purchaser, the sale of the Mortgage Loans to the Initial Purchaser or the consummation of the transactions contemplated by this Agreement and the Related Documents;
(vi) The consummation of the transactions contemplated by this Agreement and the Related Documents are in the ordinary course of business of the Seller Seller, and will not (a) result in a material breach of any term or provision the transfer, assignment and conveyance of the charter or by-laws of the Seller or (b) materially conflict with, result in a material breach, violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Seller is a party or by which it may be bound, or (c) constitute a material violation of any statute, order or regulation applicable to the Seller of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Seller, other than such conflicts, breaches, violations, accelerations or defaults which, individually or on a cumulative basis, would not have a material adverse effect on the Seller and its subsidiaries, taken as a whole, or the consummation of the transactions contemplated by this Agreement; Mortgage Notes and the Seller is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Seller's ability to perform or meet any of its obligations under this Agreement.
(4) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller that would prohibit the execution or delivery of, or performance under, this Agreement by the Seller.
(b) The Seller hereby assigns, transfers and conveys to the Purchaser all of its rights with respect to the Mortgage Loans including, without limitation, the representations and warranties of FHHLC made pursuant to MLPA I, together with all rights of the Seller to require FHHLC to cure any breach thereof or to repurchase or substitute for any affected Mortgage Loan in accordance with MLPA I. It is understood and agreed that the obligation under MLPA I of FHHLC to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy, which may be enforced solely against FHHLC and not the Seller, respecting such breach available to the Purchaser on its behalf. The representations and warranties contained in this Agreement shall not be construed as a warranty or guaranty Mortgages by the Seller as contemplated by this Agreement and the Related Documents are not subject to the future payments by bulk transfer or any Mortgagor. It is understood and agreed that similar statutory provisions in effect in any applicable jurisdiction;
(vii) The Seller used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding home mortgage loans in the Seller's portfolio at the Closing Date as to which the representations and warranties set forth in Section 2.02 could be made and had outstanding principal balances on the Cut-off Date of at least $10,000;
(viii) The Seller has good and marketable title to, and is the sole owner of, the Mortgage Loan, free and clear of any lien, charge or encumbrance or any ownership or participation interest in favor of any other person, and the mortgage note has not been assigned, pledged, hypothecated or otherwise transferred to any person; and
(ix) Neither this Section 4.1 shall survive the sale Agreement nor any statement, report or other document prepared and furnished by or on behalf of the Mortgage Loans Seller pursuant to this Agreement or any Related Document or in connection with the Purchaser hereundertransactions contemplated hereby contains any untrue statement of fact or omits to state a fact necessary to make the statements contained therein not misleading.
Appears in 1 contract
Samples: Master Repurchase Agreement (Austin Funding Com Corp)
Representations and Warranties of the Seller. The Seller represents, warrants and covenants to the Purchaser that as of each Closing Date or as of such date specifically provided herein:
(a) The Seller hereby represents and warrants to the Purchaseris a corporation duly organized, as of the date of execution and delivery hereof, that:
(1) The Seller is duly organized as a national banking association and is validly existing and in good standing under the laws of the United States jurisdiction of America its incorporation and has all licenses necessary to carry out its business as now being conducted, and is duly authorized licensed and qualified to transact any business in and all business contemplated by this Agreement to be conducted by is in good standing under the Seller in any laws of each state in which a 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 andand no demand for such licensing or qualification has been made upon the Seller by any such state, and in any event, event the Seller is in compliance with the doing business laws of any such state, state to the extent necessary to ensure its ability to enforce the enforceability of each Mortgage Loan and to perform any the servicing of its other obligations under this Agreement the Mortgage Loans in accordance with the terms thereof.of this Agreement;
(2b) The Seller has the requisite full power and authority and legal right to hold, transfer and convey each Mortgage Loan, to sell each Mortgage Loan, Loan and to execute, deliver and perform, and to enter into and consummate the all transactions contemplated by this Agreement Agreement, the related Purchase Price and Terms Letter and the related Assignment and Conveyance and to conduct its business as presently conducted; the Seller has duly authorized by all necessary action on the part of the Seller the execution, delivery and performance of this Agreement and any agreements contemplated hereby, has duly executed and delivered this Agreement; , the related Purchase Price and Terms Letter and the related Assignment and Conveyance, and any agreements contemplated hereby, and this Agreement, assuming the due authorizationrelated Purchase Price and Terms Letter, execution the related Assignment and delivery thereof by Conveyance and each Assignment of Mortgage to the other parties theretoPurchaser and any agreements contemplated hereby, constitutes a constitute the legal, valid and binding obligation obligations of the Seller, enforceable against the Seller it in accordance with its their respective terms, except that (a) the as such enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership reorganization and other similar laws relating laws, and by equitable principles affecting the enforceability of the rights of creditors; and all requisite corporate action has been taken by the Seller to creditors' rights generally or of creditors of depository institutionsmake this Agreement, the accounts of which are insured by related Purchase Price and Terms Letter, the FDIC, related Assignment and Conveyance and all agreements contemplated hereby valid and binding upon the Seller in accordance with their respective terms;
(bc) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion None of the court before which any proceeding therefor may be brought.
(3) The execution and delivery of this Agreement by Agreement, the Sellerrelated Purchase Price and Terms Letter, the related Assignment and Conveyance, the sale of the Mortgage Loans by to the Seller under Purchaser, the consummation of the transactions contemplated hereby, or the fulfillment of or compliance with the terms and conditions of this Agreement, the consummation related Purchase Price and Terms Letter or the related Assignment and Conveyance will conflict with any of the terms, conditions or provisions of the Seller's charter or by-laws or materially conflict with or result in a material breach of any other of the terms, conditions or provisions of any legal restriction or any material agreement or instrument to which the Seller is now a party or by which it is bound, or constitute a default or result in an acceleration under any of the foregoing, or result in the material violation of any law, rule, regulation, order, judgment or decree to which the Seller or its property is subject;
(d) There is no litigation, suit, proceeding or investigation pending or, to the Seller's knowledge, threatened, or any order or decree outstanding, which is reasonably likely to have a material adverse effect on the sale of the Mortgage Loans, the execution, delivery, performance or enforceability of this Agreement, the related Purchase Price and Terms Letter or the related Assignment and Conveyance, or which is reasonably likely to have a material adverse effect on the financial condition of the Seller;
(e) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Seller of or compliance by the Seller with this Agreement, the related Purchase Price and Terms Letter and the related Assignment and Conveyance, except for consents, approvals, authorizations and orders which have been obtained;
(f) The consummation of the transactions contemplated by this Agreement, the related Purchase Price and Terms Letter and the fulfillment of or compliance with the terms thereof related Assignment and Conveyance are in the ordinary course of business of the Seller Seller, and will not (a) result in a material breach of any term or provision the transfer, assignment and conveyance of the charter or by-laws of Mortgage Notes and the Mortgages by the Seller or (b) materially conflict with, result in a material breach, violation or acceleration of, or result in a material default underpursuant to this Agreement, the terms of any other material agreement or instrument to which the Seller is a party or by which it may be bound, or (c) constitute a material violation of any statute, order or regulation applicable to the Seller of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Seller, other than such conflicts, breaches, violations, accelerations or defaults which, individually or on a cumulative basis, would not have a material adverse effect on the Seller related Purchase Price and its subsidiaries, taken as a whole, or the consummation of the transactions contemplated by this Agreement; Terms Letter and the related Assignment and Conveyance are not subject to bulk transfer or any similar statutory provisions in effect in any applicable jurisdiction;
(g) The Seller is has not used selection procedures that identified the Mortgage Loans as being less desirable or valuable than other comparable mortgage loans in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Seller's ability to perform or meet any of its obligations under this Agreement.portfolio at the Cut-off Date;
(4) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller that would prohibit the execution or delivery of, or performance under, this Agreement by the Seller.
(bh) The Seller hereby assigns, transfers and conveys to the Purchaser all of its rights with respect to the Mortgage Loans including, without limitation, the representations and warranties of FHHLC made pursuant to MLPA I, together with all rights of the Seller to require FHHLC to cure any breach thereof or to repurchase or substitute for any affected Mortgage Loan in accordance with MLPA I. It is understood and agreed that the obligation under MLPA I of FHHLC to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy, which may be enforced solely against FHHLC and not the Seller, respecting such breach available to the Purchaser on its behalf. The representations and warranties contained in this Agreement shall not be construed as a warranty or guaranty by the Seller as to the future payments by any Mortgagor. It is understood and agreed that the representations and warranties set forth in this Section 4.1 shall survive will treat the sale of the Mortgage Loans to the Purchaser hereunderas a sale for reporting and accounting purposes and, to the extent appropriate, for federal income tax purposes;
(i) The Seller is an approved seller/servicer of residential mortgage loans for Fannie Mae or Freddie Mac and HUD, with such facilities, procedures xxx xexxxnnel xxxxxxary for the sound servicing of such mortgage loans. The Seller 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 event has occurred which would makx xxx Seller uxxxxx xo comply with eligibility requirements or which would require notification to either Fannie Mae or Freddie Mac;
(j) The Seller does not bxxxxxx, nor doxx xx xave 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. 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;
(k) Neither this Agreement nor any information, statement, tape, diskette, form, report, or other document furnished or to be furnished pursuant to this Agreement or any Reconstitution Agreement or in connection with the transactions contemplated hereby (including any Securitization Transfer or Whole Loan Transfer) contains or will contain any untrue statement of fact or omits or will omit to state a fact necessary to make the statements contained herein or therein not misleading;
(l) The Seller acknowledges and agrees that the Servicing Fee represents reasonable compensation for performing such services and that the entire Servicing Fee shall be treated by the Seller, for accounting and tax purposes, as compensation for the servicing and administration of the Mortgage Loans pursuant to this Agreement;
(m) The Seller has delivered to the Purchaser financial statements as to its last two complete fiscal years for which financial statements are available. All such financial statements fairly present the pertinent results of operations and changes in financial position for each of such periods and the financial position at the end of each such period of the Seller and its subsidiaries and have been prepared in accordance with GAAP consistently applied throughout the periods involved, except as set forth in the notes thereto. There has been no change in the business, operations, financial condition, properties or assets of the Seller since the date of the Seller's financial statements that would have a material adverse effect on its ability to perform its obligations under this Agreement, the related Purchase Price and Terms Letter or the related Assignment and Conveyance;
(n) The Seller 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 sale of the Mortgage Loans; and
(o) The Seller is a member of MERS in good standing, and will comply in all material respects with the rules and procedures of MERS in connection with the servicing of the MERS Mortgage Loans for as long as such Mortgage Loans are registered with MERS.
Appears in 1 contract
Samples: Seller's Purchase, Warranties and Servicing Agreement (Morgan Stanley Mortgage Loan Trust 2006-8ar)
Representations and Warranties of the Seller. The Seller represents, warrants and covenants to the Purchaser that as of each Closing Date or as of such date specifically provided herein:
(a) The Seller hereby represents and warrants to the Purchaseris a corporation duly organized, as of the date of execution and delivery hereof, that:
(1) The Seller is duly organized as a national banking association and is validly existing and in good standing under the laws of the United States jurisdiction of America its incorporation and has all licenses necessary to carry out its business as now being conducted, and is duly authorized licensed and qualified to transact any business in and all business contemplated by this Agreement to be conducted by is in good standing under the Seller in any laws of each state in which a 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 andand no demand for such licensing or qualification has been made upon the Seller by any such state, and in any event, event the Seller is in compliance with the doing business laws of any such state, state to the extent necessary to ensure its ability to enforce the enforceability of each Mortgage Loan and to perform any the servicing of its other obligations under this Agreement the Mortgage Loans in accordance with the terms thereof.of this Agreement;
(2b) The Seller has the requisite full power and authority and legal right to hold, transfer and convey each Mortgage Loan, to sell each Mortgage Loan, Loan and to execute, deliver and perform, and to enter into and consummate the all transactions contemplated by this Agreement Agreement, the related Purchase Price and Terms Letter and the related Assignment and Conveyance and to conduct its business as presently conducted; the Seller has duly authorized by all necessary action on the part of the Seller the execution, delivery and performance of this Agreement and any agreements contemplated hereby, has duly executed and delivered this Agreement; , the related Purchase Price and Terms Letter and the related Assignment and Conveyance, and any agreements contemplated hereby, and this Agreement, assuming the due authorizationrelated Purchase Price and Terms Letter, execution the related Assignment and delivery thereof by Conveyance and each Assignment of Mortgage to the other parties theretoPurchaser and any agreements contemplated hereby, constitutes a constitute the legal, valid and binding obligation obligations of the Seller, enforceable against the Seller it in accordance with its their respective terms, except that (a) the as such enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership reorganization and other similar laws relating laws, and by equitable principles affecting the enforceability of the rights of creditors; and all requisite corporate action has been taken by the Seller to creditors' rights generally or of creditors of depository institutionsmake this Agreement, the accounts of which are insured by related Purchase Price and Terms Letter, the FDIC, related Assignment and Conveyance and all agreements contemplated hereby valid and binding upon the Seller in accordance with their respective terms;
(bc) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion None of the court before which any proceeding therefor may be brought.
(3) The execution and delivery of this Agreement by Agreement, the Sellerrelated Purchase Price and Terms Letter, the related Assignment and Conveyance, the sale of the Mortgage Loans by to the Seller under Purchaser, the consummation of the transactions contemplated hereby, or the fulfillment of or compliance with the terms and conditions of this Agreement, the consummation related Purchase Price and Terms Letter or the related Assignment and Conveyance will conflict with any of the terms, conditions or provisions of the Seller's charter or by-laws or materially conflict with or result in a material breach of any other of the terms, conditions or provisions of any legal restriction or any material agreement or instrument to which the Seller is now a party or by which it is bound, or constitute a default or result in an acceleration under any of the foregoing, or result in the material violation of any law, rule, regulation, order, judgment or decree to which the Seller or its property is subject;
(d) There is no litigation, suit, proceeding or investigation pending or, to the Seller's knowledge, threatened, or any order or decree outstanding, which is reasonably likely to have a material adverse effect on the sale of the Mortgage Loans, the execution, delivery, performance or enforceability of this Agreement, the related Purchase Price and Terms Letter or the related Assignment and Conveyance, or which is reasonably likely to have a material adverse effect on the financial condition of the Seller;
(e) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Seller of or compliance by the Seller with this Agreement, the related Purchase Price and Terms Letter and the related Assignment and Conveyance, except for consents, approvals, authorizations and orders which have been obtained;
(f) The consummation of the transactions contemplated by this Agreement, the related Purchase Price and Terms Letter and the fulfillment of or compliance with the terms thereof related Assignment and Conveyance are in the ordinary course of business of the Seller Seller, and will not (a) result in a material breach of any term or provision the transfer, assignment and conveyance of the charter or by-laws of Mortgage Notes and the Mortgages by the Seller or (b) materially conflict with, result in a material breach, violation or acceleration of, or result in a material default underpursuant to this Agreement, the terms of any other material agreement or instrument to which the Seller is a party or by which it may be bound, or (c) constitute a material violation of any statute, order or regulation applicable to the Seller of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Seller, other than such conflicts, breaches, violations, accelerations or defaults which, individually or on a cumulative basis, would not have a material adverse effect on the Seller related Purchase Price and its subsidiaries, taken as a whole, or the consummation of the transactions contemplated by this Agreement; Terms Letter and the related Assignment and Conveyance are not subject to bulk transfer or any similar statutory provisions in effect in any applicable jurisdiction;
(g) The Seller is has not used selection procedures that identified the Mortgage Loans as being less desirable or valuable than other comparable mortgage loans in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Seller's ability to perform or meet any of its obligations under this Agreement.portfolio at the Cut-off Date;
(4) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller that would prohibit the execution or delivery of, or performance under, this Agreement by the Seller.
(bh) The Seller hereby assigns, transfers and conveys to the Purchaser all of its rights with respect to the Mortgage Loans including, without limitation, the representations and warranties of FHHLC made pursuant to MLPA I, together with all rights of the Seller to require FHHLC to cure any breach thereof or to repurchase or substitute for any affected Mortgage Loan in accordance with MLPA I. It is understood and agreed that the obligation under MLPA I of FHHLC to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy, which may be enforced solely against FHHLC and not the Seller, respecting such breach available to the Purchaser on its behalf. The representations and warranties contained in this Agreement shall not be construed as a warranty or guaranty by the Seller as to the future payments by any Mortgagor. It is understood and agreed that the representations and warranties set forth in this Section 4.1 shall survive will treat the sale of the Mortgage Loans to the Purchaser hereunderas a sale for reporting and accounting purposes and, to the extent appropriate, for federal income tax purposes;
(i) The Seller is an approved seller/servicer of residential mortgage loans for Fannie Mae or Freddie Mac and HUD, with such facilities, procedurex xxx pxxxonnex xxxxxsary for the sound servicing of such mortgage loans. The Seller 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 event has occurred which would maxx xxx Seller xxxxxx to comply with eligibility requirements or which would require notification to either Fannie Mae or Freddie Mac;
(j) The Seller does not bexxxxx, nor doex xx xxve 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. 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;
(k) Neither this Agreement nor any information, statement, tape, diskette, form, report, or other document furnished or to be furnished by or on behalf of the Seller pursuant to this Agreement or any Reconstitution Agreement or in connection with the transactions contemplated hereby (including any Securitization Transfer or Whole Loan Transfer) contains or will contain any untrue statement of material fact or omits or will omit to state a material fact necessary to make the statements contained herein or therein not misleading;
(l) The Seller acknowledges and agrees that the Servicing Fee represents reasonable compensation for performing such services and that the entire Servicing Fee shall be treated by the Seller, for accounting and tax purposes, as compensation for the servicing and administration of the Mortgage Loans pursuant to this Agreement;
(m) The Seller has delivered to the Purchaser financial statements as to its last two complete fiscal years for which financial statements are available. All such financial statements fairly present the pertinent results of operations and changes in financial position for each of such periods and the financial position at the end of each such period of the Seller and its subsidiaries and have been prepared in accordance with GAAP consistently applied throughout the periods involved, except as set forth in the notes thereto. There has been no change in the business, operations, financial condition, properties or assets of the Seller since the date of the Seller's financial statements that would have a material adverse effect on its ability to perform its obligations under this Agreement, the related Purchase Price and Terms Letter or the related Assignment and Conveyance;
(n) The Seller 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 sale of the Mortgage Loans; and
(o) The Seller is a member of MERS in good standing, and will comply in all material respects with the rules and procedures of MERS in connection with the servicing of the MERS Mortgage Loans for as long as such Mortgage Loans are registered with MERS.
Appears in 1 contract
Samples: Master Servicing and Trust Agreement (GSAA Home Equity Trust 2006-16)
Representations and Warranties of the Seller. The Seller represents and warrants as follows:
(a) The Seller hereby represents and warrants to the Purchaser(i) is a corporation duly incorporated, as of the date of execution and delivery hereof, that:
(1) The Seller is duly organized as a national banking association and is validly existing and in good standing under the laws of the United States jurisdiction indicated at the beginning of America this Agreement, (ii) is duly qualified to do business, and is duly authorized and qualified to transact any and all in good standing, in every jurisdiction where the nature of its business contemplated by this Agreement requires it to be conducted by the Seller in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification andso qualified, in any event, is in compliance with the doing business laws of any such state, except to the extent necessary that any failure to ensure its ability be so qualified or in good standing as a foreign entity could not reasonably be expected to enforce each Mortgage Loan and to perform any of its other obligations under this Agreement in accordance with the terms thereof.
have a material adverse effect upon (2) The Seller has the requisite power and authority to sell each Mortgage Loan, and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary action on the part of the Seller the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties thereto, constitutes a legal, valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except that (aA) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally financial condition or of creditors of depository institutions, the accounts of which are insured by the FDIC, and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
(3) The execution and delivery of this Agreement by the Seller, the sale of the Mortgage Loans by the Seller under this Agreement, the consummation of any other of the transactions contemplated by this Agreement, and the fulfillment of or compliance with the terms thereof are in the ordinary course of business of the Seller and will not (a) result in a material breach of any term or provision of the charter or by-laws operations of the Seller or (bB) materially conflict with, result in a material breach, violation the ability of the Seller to perform its obligations under this Agreement or acceleration of, or result in a material default under, the terms of any other material agreement or instrument Transaction Document to which the Seller is a party party; (iii) has the requisite corporate power and authority and the legal right to own, sell, assign, transfer or encumber and operate its properties, to lease the property it operates under lease, and to conduct its business, in each case, as now, heretofore and proposed to be conducted; and (iv) subject to specific representations set forth herein regarding ERISA, tax laws and other laws, is in compliance in all material respects with all applicable provisions of law. The Seller has no subsidiaries. All of the outstanding shares of stock of the Seller are owned by which it may be boundthe Parent, one or more direct or indirect wholly-owned subsidiaries of the Parent, or (c) constitute a material violation corporation owned directly or indirectly by the stockholders of any statute, order or regulation applicable the Parent in substantially the same proportions as their ownership of stock of the Parent. The Seller is entitled to the Seller of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Seller, other than such conflicts, breaches, violations, accelerations or defaults which, individually or on a cumulative basis, would not have a material adverse effect on the Seller and its subsidiaries, taken as a whole, or the consummation benefit of the transactions contemplated by this Agreement; and Canada-United States Income Tax Convention (the Seller is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Seller's ability to perform or meet any of its obligations under this Agreement.
(4) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller that would prohibit the execution or delivery of, or performance under, this Agreement by the Seller“Treaty”).
(b) The execution, delivery and performance by the Seller of the Transaction Documents to which it is a party and the other documents delivered by it hereunder, and the transactions contemplated hereby assignsand thereby, transfers including the Seller’s use of the proceeds of Purchases and conveys reinvestments, are within the Seller’s corporate powers, have been duly authorized by all necessary corporate action, do not (i) contravene the Seller’s charter or by-laws, (ii) violate any applicable law, rule, regulation, order, writ, judgment, injunction, decree, determination or award, or (iii) breach or result in a default under, or result in the acceleration of (or entitle any party to accelerate) the maturity of any obligation of the Seller under, or result in or require the creation of any Lien upon or security interest in any property of the Seller pursuant to the Purchaser all terms of, any Contract or any other agreement or instrument (other than any Transaction Document) binding on or affecting the Seller or any of its properties.
(c) No consent, authorization or approval or other action by, and no notice to or filing with, any Governmental Authority or regulatory body or other Person is required for the due execution, delivery and performance by the Seller of any Transaction Document to which it is a party or any other agreement or document delivered hereunder or for the perfection of or the exercise by any Indemnified Party of its rights with respect and remedies under the Transaction Documents and such other agreements or documents, except for the filings to perfect the Mortgage Loans including, without limitation, interest of the representations and warranties of FHHLC made Owners referred to on Exhibit H or required to be delivered pursuant to MLPA I, together with all rights of the Seller to require FHHLC to cure any breach thereof or to repurchase or substitute for any affected Mortgage Loan in accordance with MLPA I. It is understood and agreed that the obligation under MLPA I of FHHLC to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy, which may be enforced solely against FHHLC and not the Seller, respecting such breach available to the Purchaser on its behalf. The representations and warranties contained in this Agreement shall not be construed as a warranty or guaranty by the Seller as to the future payments by any Mortgagor. It is understood and agreed that the representations and warranties set forth in this Section 4.1 shall survive the sale of the Mortgage Loans to the Purchaser hereunder3.02.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Crown Holdings Inc)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Purchaser, as of the date of execution and delivery hereof, that:
(1) The Seller is duly organized as a national banking association and is validly existing and in good standing under the laws of the United States of America and is duly authorized and qualified to transact any and all business contemplated by this Agreement to be conducted by the Seller in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such state, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to perform any of its other obligations under this Agreement in accordance with the terms thereof.
(2) The Seller has the requisite power and authority to sell each Mortgage Loan, and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary action on the part of the Seller the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties thereto, constitutes a legal, valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors' ’ rights generally or of creditors of depository institutions, the accounts of which are insured by the FDIC, and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
(3) The execution and delivery of this Agreement by the Seller, the sale of the Mortgage Loans by the Seller under this Agreement, the consummation of any other of the transactions contemplated by this Agreement, and the fulfillment of or compliance with the terms thereof are in the ordinary course of business of the Seller and will not (a) result in a material breach of any term or provision of the charter or by-laws of the Seller or (b) materially conflict with, result in a material breach, violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Seller is a party or by which it may be bound, or (c) constitute a material violation of any statute, order or regulation applicable to the Seller of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Seller, other than such conflicts, breaches, violations, accelerations or defaults which, individually or on a cumulative basis, would not have a material adverse effect on the Seller and its subsidiaries, taken as a whole, or the consummation of the transactions contemplated by this Agreement; and the Seller is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Seller's ’s ability to perform or meet any of its obligations under this Agreement.
(4) No litigation is pending or, to the best of the Seller's ’s knowledge, threatened against the Seller that would prohibit the execution or delivery of, or performance under, this Agreement by the Seller.
(5) The Seller is a member of MERS in good standing, and willcomply in all material respects with the rules and procedures of MERS in connection with the servicing of the MERS Mortgage Loans for as long as such Mortgage Loans are registered with MERS.
(b) The Seller hereby assigns, transfers makes the representations and conveys warranties set forth in Schedule B hereto to the Purchaser, as of the Closing Date, or if so specified therein, as ofthe Cut-off Date.
(c) Upon discovery by either of the parties hereto of a breach of a representation or warranty made pursuant to Schedule B hereto that materially and adversely affects the interests of the Purchaser all in any Mortgage Loan, the party discovering such breach shall give prompt notice thereof to the other party. The Seller hereby covenants that within 90 days of the earlier of its rights discovery or its receipt of written notice from the Purchaser of a breach of any representation or warranty made pursuant to Schedule B hereto which materially and adversely affects the interests of the Purchaser in any Mortgage Loan, it shall cure such breach in all material respects, and if such breach is not so cured, shall, (i) if such 90-day period expires prior to the second anniversary of the Closing Date, remove such Mortgage Loan (a “Deleted Mortgage Loan”) from the pools of mortgages listed on Schedule B hereto and substitute in its place a Substitute Mortgage Loan, in the manner and subject to the conditions set forth in this Section; or (ii) repurchase the affected Mortgage Loan or Mortgage Loans from the Purchaser at the Mortgage Loan Purchase Price in the manner set forth below. With respect to the representations and warranties described in this Section which are made to the best of the Seller’s knowledge, if it is discovered by either the Seller or the Purchaser that the substance of such representation and warranty is inaccurate and such inaccuracy materially and adversely affects the value of the related Mortgage Loan or the interests of the Purchaser therein, notwithstanding the Seller’s lack of knowledge with respect to the substance of such representation or warranty, such inaccuracy shall be deemed a breach of the applicable representation or warranty. With respect to any Substitute Mortgage Loan or Loans, the Seller shall deliver to the Trustee or to the Custodian on its behalf the Mortgage Note, the Mortgage, the related assignment of the Mortgage, and such other documents and agreements as are required by Section 3.1, with the Mortgage Note endorsed and the Mortgage assigned as required by Section 3.1. No substitution is permitted to be made in any calendar month after the Determination Date for such month. Scheduled Payments due with respect to Substitute Mortgage Loans includingin the month of substitution will be retained by the Seller. Upon such substitution, without limitationthe Substitute Mortgage Loan or Loans shall be subject to the terms of this Agreement in all respects, and the Seller shall be deemed to have made with respect to such Substitute Mortgage Loan or Loans, as of the date of substitution, the representations and warranties of FHHLC made pursuant to MLPA I, together Schedule B hereto with all rights of the Seller respect to require FHHLC to cure any breach thereof or to repurchase or substitute for any affected such Mortgage Loan in accordance with MLPA I. Loan. It is understood and agreed that the obligation under MLPA I this Agreement of FHHLC the Seller to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy, which may be enforced solely remedy against FHHLC and not the Seller, Seller respecting such breach available to the Purchaser on its behalf. The representations and warranties contained in this Agreement shall not be construed as a warranty or guaranty by the Seller as to the future payments by any Mortgagor. It is understood and agreed that the representations and warranties set forth in this Section 4.1 shall survive the sale of the Mortgage Loans to the Purchaser hereunder.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (First Horizon Asset Sec Mort Pass THR Certs Ser 2007-4)
Representations and Warranties of the Seller. (a) .
(a) The Seller hereby represents and warrants to the Purchaser, as of the date of execution and delivery hereof, that:
(1) The Seller is duly organized as a national banking association and is validly existing under the laws of the United States of America and is duly authorized and qualified to transact any and all business contemplated by this Agreement to be conducted by the Seller in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such state, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to perform any of its other obligations under this Agreement in accordance with the terms thereof.
(2) The Seller has the requisite power and authority to sell each Mortgage Loan, and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary action on the part of the Seller the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties thereto, constitutes a legal, valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally or of creditors of depository institutions, the accounts of which are insured by the FDIC, and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
(3) The execution and delivery of this Agreement by the Seller, the sale of the Mortgage Loans by the Seller under this Agreement, the consummation of any other of the transactions contemplated by this Agreement, and the fulfillment of or compliance with the terms thereof are in the ordinary course of business of the Seller and will not (a) result in a material breach of any term or provision of the charter or by-laws of the Seller or (b) materially conflict with, result in a material breach, violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Seller is a party or by which it may be bound, or (c) constitute a material violation of any statute, order or regulation applicable to the Seller of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Seller, other than such conflicts, breaches, violations, accelerations or defaults which, individually or on a cumulative basis, would not have a material adverse effect on the Seller and its subsidiaries, taken as a whole, or the consummation of the transactions contemplated by this Agreement; and the Seller is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Seller's ability to perform or meet any of its obligations under this Agreement.
(4) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller that would prohibit the execution or delivery of, or performance under, this Agreement by the Seller.
(b) The Seller hereby assigns, transfers and conveys to the Purchaser all of its rights with respect to the Mortgage Loans including, without limitation, the representations and warranties of FHHLC made pursuant to MLPA I, together with all rights of the Seller to require FHHLC to cure any breach thereof or to repurchase or substitute for any affected Mortgage Loan in accordance with MLPA I. It is understood and agreed that the obligation under MLPA I of FHHLC to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy, which may be enforced solely against FHHLC and not the Seller, respecting such breach available to the Purchaser on its behalf. The representations and warranties contained in this Agreement shall not be construed as a warranty or guaranty by the Seller as to the future payments by any Mortgagor. It is understood and agreed that the representations and warranties set forth in this Section 4.1 shall survive the sale of the Mortgage Loans to the Purchaser hereunder.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (First Horizon Asset Securities Inc)
