Representations, Warranties and Covenants of Seller. Seller hereby represents, warrants and covenants to Purchaser that the following matters are true and correct as of the execution of this Agreement and will also be true and correct as of the Closing, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx Xxxxxxxxx: (a) Seller is a statutory trust duly formed and validly existing under the laws of the State of Delaware. This Agreement has been, and all the documents executed by Seller which are to be delivered to Purchaser at the Closing will be, duly authorized, executed and delivered by Seller and will be legal, valid and binding obligations of Seller enforceable against Seller in accordance with their respective terms (except to the extent that such enforcement may be limited by applicable bankruptcy, insolvency, moratorium and other principles relating to or limiting the right of contracting parties generally), will be sufficient to convey title (if they purport to do so) and will not violate any provisions of any material agreement to which Seller is a party or to which the Property or Seller is subject or bound. Subject to the satisfaction of Section 8(a)(i) below, no consent, waiver or approval by any third party is required in connection with the execution and delivery by Seller of this Agreement or the performance by Seller of the obligations to be performed by Seller under this Agreement. (b) Except as set forth on Exhibit M attached hereto, Seller has not received from any governmental authority written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any violation of any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable to the Property, or any part thereof, that will not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change to the zoning classification or any proceedings to widen or realign any streets or highways adjacent to the Property or of any condemnation proceedings. (c) To Seller’s actual knowledge, (i) the operating statements, income and expense reports and all other contracts or documents required to be delivered to Purchaser pursuant to this Agreement are true, correct and complete copies; and (ii) all contracts or documents required to be delivered to Purchaser pursuant to this Agreement are in full force and effect, without material default by any party and without any right of set-off except as disclosed in writing at the time of such delivery. (d) There is no master lease of the Property to any affiliate of Seller, or if such master lease exists, Seller shall cause such master lease to be terminated at Closing without Purchaser paying any termination fee. The Rent Roll attached hereto as Exhibit B is true, correct and complete in all material respects as of the date set forth on the Rent Roll. As of the Closing, the Rent Roll delivered at the Closing will be true, correct and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default by any party and without any right of setoff, except as expressly provided by the terms of such Leases or as disclosed on the Rent Roll attached hereto. The copies of the Leases and other agreements with the tenants under the Leases (the “Tenants”) delivered to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating to the Real Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real Property. (e) Exhibit J attached hereto is a true and complete schedule of all of the Contracts (as hereinafter defined in Section 7), true, complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy of the management agreement currently in effect with respect to the Property. To Seller’s actual knowledge, the Contracts are in full force and effect, without material default by any party and without any claims made for the right of setoff, except as expressly provided by the terms of such Contracts or as disclosed to Purchaser in writing at the time of such delivery. The Contracts constitute the entire agreements with such vendors relating to the Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excluding, however, the Leases and Permitted Encumbrances) affecting the Property which will survive the Closing. (f) At the Closing, there will be no outstanding contracts made by Seller for the construction or repair of any improvements to the Improvements which have not been fully paid for, and Seller shall cause to be discharged all mechanics’ or materialmen’s liens arising from any labor or materials furnished to the Improvements prior to the Closing. (g) Except as set forth in Exhibit K attached hereto, there are no pending or, to Seller’s actual knowledge (without any duty of inquiry or investigation), threatened legal proceedings or actions of any kind or character affecting the Property or Seller’s interest therein, including, without limitation, condemnation proceedings. (h) Seller has not received any actual written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or the Property relating in any way to a Release or compliance with Environmental Laws. For purposes of this Agreement, the phrase “Environmental Laws” shall mean any federal, state or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materials, or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 00
Appears in 5 contracts
Samples: Purchase and Sale Agreement (Grubb & Ellis Apartment REIT, Inc.), Purchase and Sale Agreement (Grubb & Ellis Apartment REIT, Inc.), Purchase and Sale Agreement (Grubb & Ellis Apartment REIT, Inc.)
Representations, Warranties and Covenants of Seller. (a) The Seller hereby represents, represents and warrants to and covenants to Purchaser that with the following matters are true and correct Purchaser, as of the execution of this Agreement and will also be true and correct as of the Closingdate hereof, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx Xxxxxxxxxthat:
(ai) The Seller is a statutory trust corporation duly formed and organized, validly existing and in good standing under the laws of the State of Delaware. Delaware and possesses all requisite authority, power, licenses, permits and franchises to carry on its business as currently conducted by it and to execute, deliver and comply with its obligations under the terms of this Agreement.
(ii) This Agreement has been, been duly and all the documents executed by Seller which are to be delivered to Purchaser at the Closing will be, duly validly authorized, executed and delivered by the Seller and, assuming due authorization, execution and will be delivery hereof by the Purchaser, constitutes a legal, valid and binding obligations obligation of Seller the Seller, enforceable against the Seller in accordance with their respective terms (its terms, except to the extent that as such enforcement may be limited by applicable (A) bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws affecting the enforcement of creditors' rights in general, and other (B) general equity principles relating to (regardless of whether such enforcement is considered in a proceeding in equity or limiting at law).
(iii) The execution and delivery of this Agreement by the right Seller and the Seller's performance and compliance with the terms of contracting parties generally), will be sufficient to convey title (if they purport to do so) and this Agreement will not (A) violate the Seller's organizational documents, (B) violate any provisions law or regulation or any administrative decree or order to which the Seller is subject, or (C) constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material contract, agreement or other instrument to which the Seller is a party or to by which the Property or Seller is subject bound.
(iv) The Seller is not in default with respect to any order or bound. Subject decree of any court or any order, regulation or demand of any federal, state, municipal or other governmental agency or body, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or have consequences that would materially and adversely affect its performance hereunder.
(v) The Seller is not a party to the satisfaction of Section 8(a)(i) below, no consent, waiver or approval bound by any agreement or instrument or subject to any organizational document or any other corporate restriction or any judgment, order, writ, injunction, decree, law or regulation that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the ability of the Seller to perform its obligations under this Agreement or that requires the consent of any third party is required in connection with person to the execution and delivery by Seller of this Agreement by the Seller or the performance by the Seller of the its obligations to be performed by Seller under this Agreement.
(bvi) Except as set forth on Exhibit M attached hereto, Seller has not received from any governmental authority written notice, and Seller has no actual knowledge (without any duty for the recordation and/or filing of inquiry or investigation) of any violation of any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable to the Property, or any part thereof, that will not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change to the zoning classification or any proceedings to widen or realign any streets or highways adjacent to the Property or of any condemnation proceedings.
(c) To Seller’s actual knowledge, (i) the operating statements, income and expense reports and all other contracts or documents required to be delivered to Purchaser pursuant to this Agreement are true, correct and complete copies; and (ii) all contracts or documents required to be delivered to Purchaser pursuant to this Agreement are in full force and effect, without material default by any party and without any right of set-off except as disclosed in writing at the time of such delivery.
(d) There is no master lease of the Property to any affiliate of Seller, or if such master lease exists, Seller shall cause such master lease to be terminated at Closing without Purchaser paying any termination fee. The Rent Roll attached hereto as Exhibit B is true, correct and complete in all material respects as of the date set forth on the Rent Roll. As of the Closing, the Rent Roll delivered at the Closing will be true, correct and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default by any party and without any right of setoff, except as expressly provided by the terms of such Leases or as disclosed on the Rent Roll attached hereto. The copies of the Leases assignments and other agreements with the tenants under the Leases (the “Tenants”) delivered to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating to the Real Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real Property.
(e) Exhibit J attached hereto is a true and complete schedule of all of the Contracts (as hereinafter defined in Section 7), true, complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy of the management agreement currently in effect transfer documents with respect to the Property. To Seller’s actual knowledgeMortgage Loans, the Contracts are in full force and effectas contemplated by Section 2(d) hereof, without material default by no consent, approval, authorization or order of, registration or filing with, or notice to, any party and without any claims made court or governmental agency or body, is required for the right of setoffexecution, except as expressly provided delivery and performance by the terms Seller of or compliance by the Seller with this Agreement or the consummation of the transactions contemplated by this Agreement; and no bulk sale law applies to such Contracts or as disclosed to Purchaser in writing at the time of such delivery. The Contracts constitute the entire agreements with such vendors relating to the Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excluding, however, the Leases and Permitted Encumbrances) affecting the Property which will survive the Closingtransactions.
(fvii) At the Closing, there will be no outstanding contracts made by Seller for the construction or repair of any improvements to the Improvements which have not been fully paid for, and Seller shall cause to be discharged all mechanics’ or materialmen’s liens arising from any labor or materials furnished to the Improvements prior to the Closing.
(g) Except as set forth in Exhibit K attached hereto, there are no No litigation is pending or, to the best of the Seller’s actual knowledge (without any duty of inquiry or investigation)'s knowledge, threatened legal proceedings against the Seller that would, in the Seller's good faith and reasonable judgment, prohibit its entering into this Agreement or actions materially and adversely affect the performance by the Seller of any kind or character affecting the Property or Seller’s interest therein, including, without limitation, condemnation proceedingsits obligations under this Agreement.
(hviii) Under generally accepted accounting principles ("GAAP") and for federal income tax purposes, the Seller has not will report the transfer of the Mortgage Loans to the Purchaser, as provided herein, as a sale of the Mortgage Loans to the Purchaser in exchange for the consideration specified in Section 1 hereof. In connection with the foregoing, the Seller shall cause all of its records to reflect such transfer as a sale (as opposed to a secured loan). The consideration received any actual written noticeby the Seller upon the sale of the Mortgage Loans to the Purchaser will constitute at least reasonably equivalent value and fair consideration for the Mortgage Loans. The Seller will be solvent at all relevant times prior to, and will not be rendered insolvent by, the sale of the Mortgage Loans to the Purchaser. The Seller has no actual knowledge is not selling the Mortgage Loans to the Purchaser with any intent to hinder, delay or defraud any of the creditors of the Seller. After giving effect to its transfer of the Mortgage Loans to the Purchaser, as provided herein, the value of the Seller's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Seller's debts and obligations, including contingent and unliquidated debts and obligations of the Seller, and the Seller will not be left with unreasonably small assets or capital with which to engage in and conduct its business. The Mortgage Loans do not constitute all or substantially all of the assets of the Seller. The Seller does not intend to, and does not believe that it will, incur debts or obligations beyond its ability to pay such debts and obligations as they mature.
(without any duty ix) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of inquiry the Seller are pending or investigationcontemplated.
(b) The Seller hereby makes, for the benefit of the Purchaser, with respect to each Mortgage Loan, as of the Closing Date or as of such other date expressly set forth therein, each of the representations and warranties made by the initial Purchaser pursuant to Section 2.04(b) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or the Property relating in any way to a Release or compliance with Environmental Laws. For purposes of this Pooling and Servicing Agreement, except that all references therein to the phrase “Environmental Laws” "Depositor" shall mean any federal, state or local law, statute, ordinance, order, decree, rule or regulation be deemed to be references to the Seller and any common laws regarding health, safety, radioactive materials, or all references therein to the environment, including, without limitation, Mortgage Pool shall be deemed to be references to all the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 00Securitized Loans.
Appears in 5 contracts
Samples: Mortgage Loan Purchase Agreement (LB-UBS Commercial Mortgage Trust 2008-C1), Mortgage Loan Purchase Agreement (LB-UBS Commercial Mortgage Trust 2007-C2), Mortgage Loan Purchase Agreement (LB-UBS Commercial Mortgage Trust 2007-C7)
Representations, Warranties and Covenants of Seller. Seller hereby represents, represents and warrants and covenants to Purchaser that the following matters are true and correct as of the execution of this Agreement and will also be true and correct as of the Closing, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx Xxxxxxxxxfollows:
(a) Seller is a statutory trust duly formed has the requisite power and validly existing authority to execute, deliver and perform his obligations under this Agreement, having received written authorization to proceed with the laws of sale from the State of DelawareBusiness Advisors to the trust. This Agreement has been, and all constitutes the documents executed by Seller which are to be delivered to Purchaser at the Closing will be, duly authorized, executed and delivered by Seller and will be legal, valid and binding obligations obligation of Seller enforceable against Seller in accordance with their respective terms its terms.
(except to the extent that such enforcement may be limited by applicable bankruptcyb) The execution, insolvency, moratorium delivery and other principles relating to or limiting the right performance of contracting parties generally), will be sufficient to convey title (if they purport to do so) this Agreement does not and will not (i) violate any provisions law, regulation, judgment, decree, order or other directive of any material court or governmental agency applicable to or binding upon Seller, or (ii) breach or constitute a default under any agreement to which Seller is a party or to by which the Property or Seller is subject bound.
(c) Seller is the owner of the Shares of the Purchaser being sold, assigned, bargained and conveyed pursuant hereto, free from any security interest, pledge, option, equity, claim or boundother right or interest of any kind. Subject Upon the sale to Purchaser, Purchaser will acquire the Shares being transferred, free from any security interest, pledge, option, equity, claim or other right or interest of any kind.
(d) Seller has received and carefully reviewed Purchaser’s filings with the Securities and Exchange Commission and Purchaser’s press releases posted on Purchaser’s website (the filings and press releases, the “Purchaser Disclosure”) and has had full access to Purchaser’s other directors and executives for purposes of discussion the Company’s condition, operations and plans. Seller acknowledges that no oral representations have been made or information furnished to Seller or Seller’s representatives that are in any way inconsistent with the Purchaser Disclosure. Seller confirms that no representations, warranties, or other agreements (whether express or implied) have been made by Purchaser with respect to the satisfaction of Section 8(a)(i) belowtransactions contemplated hereby, no consentexcept for those representations, waiver or approval by any third party is required warranties, and agreements that are specifically set forth in connection with the execution and delivery by Seller of this Agreement or the performance by Seller of the obligations to be performed by Seller under this Agreement.
(be) Except as set forth on Exhibit M attached heretoSeller, Seller has not received from any governmental authority written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any violation of any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable to the Propertyextent necessary, or any part thereof, that will not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change to the zoning classification or any proceedings to widen or realign any streets or highways adjacent to the Property or of any condemnation proceedings.
(c) To Seller’s actual knowledge, (i) the operating statements, income and expense reports and all other contracts or documents required to be delivered to Purchaser pursuant to this Agreement are true, correct and complete copies; and (ii) all contracts or documents required to be delivered to Purchaser pursuant to this Agreement are in full force and effectshall, without material default additional consideration, take such additional or further actions and execute such other or further documents as may be reasonably requested by any party and without any right of set-off except as disclosed in writing at the time of such delivery.
(d) There is no master lease of the Property to any affiliate of Seller, or if such master lease exists, Seller shall cause such master lease to be terminated at Closing without Purchaser paying any termination fee. The Rent Roll attached hereto as Exhibit B is true, correct and complete in all material respects as of the date set forth on the Rent Roll. As of the Closing, the Rent Roll delivered at the Closing will be true, correct and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default by any party and without any right of setoff, except as expressly provided by the terms of such Leases or as disclosed on the Rent Roll attached hereto. The copies of the Leases and other agreements with the tenants under the Leases (the “Tenants”) delivered to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating to the Real Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real Property.
(e) Exhibit J attached hereto is a true and complete schedule of all of the Contracts (as hereinafter defined in Section 7), true, complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy of the management agreement currently in effect with respect to the Property. To Seller’s actual knowledge, the Contracts are in full force and effect, without material default by any party and without any claims made for the right of setoff, except as expressly provided by the terms of such Contracts or as disclosed to Purchaser in writing at order to evidence, confirm or carry out the time of such delivery. The Contracts constitute the entire agreements with such vendors relating to the Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excluding, however, the Leases and Permitted Encumbrances) affecting the Property which will survive the Closingtransactions contemplated hereby.
(f) At the Closing, there will be no outstanding contracts made by Seller for the construction or repair of any improvements to the Improvements which have not been fully paid for, and Seller shall cause to be discharged all mechanics’ or materialmen’s liens arising from any labor or materials furnished to the Improvements prior to the Closing.
(g) Except as set forth in Exhibit K attached hereto, there are no pending or, to Seller’s actual knowledge (without any duty of inquiry or investigation), threatened legal proceedings or actions of any kind or character affecting the Property or Seller’s interest therein, including, without limitation, condemnation proceedings.
(h) Seller has not received any actual written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or the Property relating in any way to a Release or compliance with Environmental Laws. For purposes of this Agreement, the phrase “Environmental Laws” shall mean any federal, state or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materials, or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 00
Appears in 5 contracts
Samples: Shares Purchase Agreement (Preformed Line Products Co), Shares Purchase Agreement (Preformed Line Products Co), Shares Purchase Agreement (Preformed Line Products Co)
Representations, Warranties and Covenants of Seller. (a) The Seller hereby represents, represents and warrants to and covenants to Purchaser that with the following matters are true and correct Purchaser, as of the execution of this Agreement and will also be true and correct as of the Closingdate hereof, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx Xxxxxxxxxthat:
(ai) The Seller is a statutory trust corporation duly formed and organized, validly existing and in good standing under the laws of the State of Delaware. Delaware and possesses all requisite authority, power, licenses, permits and franchises to carry on its business as currently conducted by it and to execute, deliver and comply with its obligations under the terms of this Agreement.
(ii) This Agreement has been, been duly and all the documents executed by Seller which are to be delivered to Purchaser at the Closing will be, duly validly authorized, executed and delivered by the Seller and, assuming due authorization, execution and will be delivery hereof by the Purchaser, constitutes a legal, valid and binding obligations obligation of Seller the Seller, enforceable against the Seller in accordance with their respective terms (its terms, except to the extent that as such enforcement may be limited by applicable (A) bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws affecting the enforcement of creditors' rights in general, and other (B) general equity principles relating to (regardless of whether such enforcement is considered in a proceeding in equity or limiting at law).
(iii) The execution and delivery of this Agreement by the right Seller and the Seller's performance and compliance with the terms of contracting parties generally), will be sufficient to convey title (if they purport to do so) and this Agreement will not (A) violate the Seller's organizational documents, (B) violate any provisions law or regulation or any administrative decree or order to which the Seller is subject, or (C) constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material contract, agreement or other instrument to which the Seller is a party or to by which the Property or Seller is subject bound.
(iv) The Seller is not in default with respect to any order or bound. Subject decree of any court or any order, regulation or demand of any federal, state, municipal or other governmental agency or body, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or have consequences that would materially and adversely affect its performance hereunder.
(v) The Seller is not a party to the satisfaction of Section 8(a)(i) below, no consent, waiver or approval bound by any agreement or instrument or subject to any organizational document or any other corporate restriction or any judgment, order, writ, injunction, decree, law or regulation that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the ability of the Seller to perform its obligations under this Agreement or that requires the consent of any third party is required in connection with person to the execution and delivery by Seller of this Agreement by the Seller or the performance by the Seller of the its obligations to be performed by Seller under this Agreement.
(bvi) Except as set forth on Exhibit M attached hereto, Seller has not received from any governmental authority written notice, and Seller has no actual knowledge (without any duty for the recordation and/or filing of inquiry or investigation) of any violation of any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable to the Property, or any part thereof, that will not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change to the zoning classification or any proceedings to widen or realign any streets or highways adjacent to the Property or of any condemnation proceedings.
(c) To Seller’s actual knowledge, (i) the operating statements, income and expense reports and all other contracts or documents required to be delivered to Purchaser pursuant to this Agreement are true, correct and complete copies; and (ii) all contracts or documents required to be delivered to Purchaser pursuant to this Agreement are in full force and effect, without material default by any party and without any right of set-off except as disclosed in writing at the time of such delivery.
(d) There is no master lease of the Property to any affiliate of Seller, or if such master lease exists, Seller shall cause such master lease to be terminated at Closing without Purchaser paying any termination fee. The Rent Roll attached hereto as Exhibit B is true, correct and complete in all material respects as of the date set forth on the Rent Roll. As of the Closing, the Rent Roll delivered at the Closing will be true, correct and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default by any party and without any right of setoff, except as expressly provided by the terms of such Leases or as disclosed on the Rent Roll attached hereto. The copies of the Leases assignments and other agreements with the tenants under the Leases (the “Tenants”) delivered to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating to the Real Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real Property.
(e) Exhibit J attached hereto is a true and complete schedule of all of the Contracts (as hereinafter defined in Section 7), true, complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy of the management agreement currently in effect transfer documents with respect to the Property. To Seller’s actual knowledgeMortgage Loans, the Contracts are in full force and effectas contemplated by Section 2(d) hereof, without material default by no consent, approval, authorization or order of, registration or filing with, or notice to, any party and without any claims made court or governmental agency or body, is required for the right of setoffexecution, except as expressly provided delivery and performance by the terms Seller of or compliance by the Seller with this Agreement or the consummation of the transactions contemplated by this Agreement; and no bulk sale law applies to such Contracts or as disclosed to Purchaser in writing at the time of such delivery. The Contracts constitute the entire agreements with such vendors relating to the Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excluding, however, the Leases and Permitted Encumbrances) affecting the Property which will survive the Closingtransactions.
(fvii) At the Closing, there will be no outstanding contracts made by Seller for the construction or repair of any improvements to the Improvements which have not been fully paid for, and Seller shall cause to be discharged all mechanics’ or materialmen’s liens arising from any labor or materials furnished to the Improvements prior to the Closing.
(g) Except as set forth in Exhibit K attached hereto, there are no No litigation is pending or, to the best of the Seller’s actual knowledge (without any duty of inquiry or investigation)'s knowledge, threatened legal proceedings against the Seller that would, in the Seller's good faith and reasonable judgment, prohibit its entering into this Agreement or actions materially and adversely affect the performance by the Seller of any kind or character affecting the Property or Seller’s interest therein, including, without limitation, condemnation proceedingsits obligations under this Agreement.
(hviii) Under generally accepted accounting principles ("GAAP") and for federal income tax purposes, the Seller has not will report the transfer of the Mortgage Loans to the Purchaser, as provided herein, as a sale of the Mortgage Loans to the Purchaser in exchange for the consideration specified in Section 1 hereof. In connection with the foregoing, the Seller shall cause all of its records to reflect such transfer as a sale (as opposed to a secured loan). The consideration received any actual written noticeby the Seller upon the sale of the Mortgage Loans to the Purchaser will constitute at least reasonably equivalent value and fair consideration for the Mortgage Loans. The Seller will be solvent at all relevant times prior to, and will not be rendered insolvent by, the sale of the Mortgage Loans to the Purchaser. The Seller has no actual knowledge is not selling the Mortgage Loans to the Purchaser with any intent to hinder, delay or defraud any of the creditors of the Seller. After giving effect to its transfer of the Mortgage Loans to the Purchaser, as provided herein, the value of the Seller's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Seller's debts and obligations, including contingent and unliquidated debts and obligations of the Seller, and the Seller will not be left with unreasonably small assets or capital with which to engage in and conduct its business. The Mortgage Loans do not constitute all or substantially all of the assets of the Seller. The Seller does not intend to, and does not believe that it will, incur debts or obligations beyond its ability to pay such debts and obligations as they mature.
(without any duty ix) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of inquiry the Seller are pending or investigationcontemplated.
(b) The Seller hereby makes, for the benefit of the Purchaser, with respect to each Mortgage Loan, as of the Closing Date or as of such other date expressly set forth therein, each of the representations and warranties made by the Purchaser pursuant to Section 2.04(b) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or the Property relating in any way to a Release or compliance with Environmental Laws. For purposes of this Pooling and Servicing Agreement, except that all references therein to the phrase “Environmental Laws” Purchaser shall mean any federal, state or local law, statute, ordinance, order, decree, rule or regulation be deemed to be references to the Seller and any common laws regarding health, safety, radioactive materials, or all references therein to the environment, including, without limitation, Mortgage Pool shall be deemed to be references to all the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 00Securitized Loans.
Appears in 4 contracts
Samples: Mortgage Loan Purchase Agreement (Lb-Ubs Commercial Mortgage Trust 2006-C1), Mortgage Loan Purchase Agreement (LB-UBS Commercial Mortgage Trust 2006-C7), Mortgage Loan Purchase Agreement (Lb-Ubs Commercial Mortgage Trust 2006 C6)
Representations, Warranties and Covenants of Seller. (a) The Seller hereby represents, represents and warrants to and covenants to Purchaser that with the following matters are true and correct Purchaser, as of the execution of this Agreement and will also be true and correct as of the Closingdate hereof, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx Xxxxxxxxxthat:
(ai) The Seller is a statutory trust duly formed national banking association organized and validly existing and in good standing under the laws of the State United States and possesses all requisite authority, power, licenses, permits and franchises to carry on its business as currently conducted by it and to execute, deliver and comply with its obligations under the terms of Delaware. this Agreement;
(ii) This Agreement has been, been duly and all the documents executed by Seller which are to be delivered to Purchaser at the Closing will be, duly validly authorized, executed and delivered by the Seller and, assuming due authorization, execution and will be delivery hereof by the Purchaser, constitutes a legal, valid and binding obligations obligation of Seller the Seller, enforceable against the Seller in accordance with their respective terms (its terms, except to the extent that as such enforcement may be limited by applicable bankruptcy, insolvency, reorganization, receivership, moratorium and other laws affecting the enforcement of creditors' rights in general, as they may be applied in the context of the insolvency of a national banking association, and by general equity principles relating to (regardless of whether such enforcement is considered in a proceeding in equity or limiting the right of contracting parties generallyat law), will be sufficient and by public policy considerations underlying the securities laws, to convey title (if they the extent that such public policy considerations limit the enforceability of the provisions of this Agreement which purport to do soprovide indemnification from liabilities under applicable securities laws;
(iii) The execution and delivery of this Agreement by the Seller and the Seller's performance and compliance with the terms of this Agreement will not (A) violate the Seller's organizational documents, (B) violate any provisions law or regulation or any administrative decree or order to which it is subject or (C) constitute a material default (or an event which, with notice or lapse of time, or both, would constitute a material default) under, or result in the breach of, any material contract, agreement or other instrument to which the Seller is a party or to by which the Property or Seller is bound, which violation, default or breach, in the case of either clause (iii)(B) or (iii)(C) might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the financial condition or the operations of the Seller or its properties (taken as a whole) or have consequences that would materially and adversely affect its performance hereunder;
(iv) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or other governmental agency or body, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the financial condition or the operations of the Seller or its properties (taken as a whole) or have consequences that would materially and adversely affect its performance hereunder;
(v) The Seller is not a party to or bound by any agreement or instrument or subject to any other corporate restriction or bound. Subject any judgment, order, writ, injunction, decree, law or regulation that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the ability of the Seller to perform its obligations under this Agreement or that requires the consent of any third person to the satisfaction of Section 8(a)(i) below, no consent, waiver or approval by any third party is required in connection with the execution and delivery by Seller of this Agreement or the performance by the Seller of its obligations under this Agreement (except to the extent such consent has been obtained);
(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 or the consummation of the transactions involving the Seller contemplated by this Agreement except as have previously been obtained, and no bulk sale law applies to such transactions;
(vii) No litigation is pending or, to the Seller's knowledge, threatened against the Seller that would, in the Seller's good faith and reasonable judgment, prohibit its entering into this Agreement or materially and adversely affect the performance by the Seller of its obligations to be performed by Seller under this Agreement; and
(viii) For purposes of accounting under generally accepted accounting principles ("GAAP"), and for federal income tax purposes, the Seller will report the transfer of the Mortgage Loans to the Purchaser as a sale of the Mortgage Loans to the Purchaser in exchange for consideration contemplated by this Agreement. The consideration received by the Seller upon the sale of the Mortgage Loans to the Purchaser will constitute at least reasonably equivalent value and fair consideration for the Mortgage Loans. The Seller will be solvent at all relevant times prior to, and will not be rendered insolvent by, the sale of the Mortgage Loans to the Purchaser. The Seller is not transferring the Mortgage Loans to the Purchaser with any intent to hinder, delay or defraud any of the creditors of the Seller or on account of an antecedent debt.
(b) Except as The Seller hereby makes, on the date hereof and on the Closing Date, the representations and warranties contained in Schedule I and Schedule II hereto with respect to each Mortgage Loan, for the benefit of the Purchaser, which representations and warranties are subject to the exceptions set forth on Exhibit M attached hereto, Seller has not received from any governmental authority written notice, Schedules III and Seller has no actual knowledge (without any duty of inquiry or investigation) IV. References in this Agreement to "Breach" mean a breach of any violation of any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable to the Property, or any part thereof, that will not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change to the zoning classification or any proceedings to widen or realign any streets or highways adjacent to the Property or of any condemnation proceedings.
(c) To Seller’s actual knowledge, (i) the operating statements, income such representations and expense reports and all other contracts or documents required to be delivered to Purchaser warranties made pursuant to this Agreement are true, correct and complete copies; and (iiSection 3(b) all contracts or documents required to be delivered to Purchaser pursuant to this Agreement are in full force and effect, without material default by any party and without any right of set-off except as disclosed in writing at the time of such delivery.
(d) There is no master lease of the Property to any affiliate of Seller, or if such master lease exists, Seller shall cause such master lease to be terminated at Closing without Purchaser paying any termination fee. The Rent Roll attached hereto as Exhibit B is true, correct and complete in all material respects as of the date set forth on the Rent Roll. As of the Closing, the Rent Roll delivered at the Closing will be true, correct and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default by any party and without any right of setoff, except as expressly provided by the terms of such Leases or as disclosed on the Rent Roll attached hereto. The copies of the Leases and other agreements with the tenants under the Leases (the “Tenants”) delivered to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating to the Real Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real Property.
(e) Exhibit J attached hereto is a true and complete schedule of all of the Contracts (as hereinafter defined in Section 7), true, complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy of the management agreement currently in effect with respect to the Property. To Seller’s actual knowledge, the Contracts are in full force and effect, without material default by any party and without any claims made for the right of setoff, except as expressly provided by the terms of such Contracts or as disclosed to Purchaser in writing at the time of such delivery. The Contracts constitute the entire agreements with such vendors relating to the Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excluding, however, the Leases and Permitted Encumbrances) affecting the Property which will survive the ClosingMortgage Loan.
(f) At the Closing, there will be no outstanding contracts made by Seller for the construction or repair of any improvements to the Improvements which have not been fully paid for, and Seller shall cause to be discharged all mechanics’ or materialmen’s liens arising from any labor or materials furnished to the Improvements prior to the Closing.
(g) Except as set forth in Exhibit K attached hereto, there are no pending or, to Seller’s actual knowledge (without any duty of inquiry or investigation), threatened legal proceedings or actions of any kind or character affecting the Property or Seller’s interest therein, including, without limitation, condemnation proceedings.
(h) Seller has not received any actual written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or the Property relating in any way to a Release or compliance with Environmental Laws. For purposes of this Agreement, the phrase “Environmental Laws” shall mean any federal, state or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materials, or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 00
Appears in 4 contracts
Samples: Mortgage Loan Purchase Agreement (Citigroup Commercial Mortgage Trust 2007-C6), Mortgage Loan Purchase Agreement (CD 2007-Cd4 Commercial Mortgage Trust), Mortgage Loan Purchase Agreement (Citigroup Commercial Mortgage Trust 2007-C6)
Representations, Warranties and Covenants of Seller. (a) The Seller hereby represents, represents and warrants to and covenants to Purchaser that with the following matters are true and correct Purchaser, as of the execution of this Agreement and will also be true and correct as of the Closingdate hereof, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx Xxxxxxxxxthat:
(ai) The Seller is a statutory trust duly formed corporation organized and validly existing and in good standing under the laws of the State of Delaware. Delaware and possesses all requisite authority, power, licenses, permits and franchises to carry on its business as currently conducted by it and to execute, deliver and comply with its obligations under the terms of this Agreement;
(ii) This Agreement has been, been duly and all the documents executed by Seller which are to be delivered to Purchaser at the Closing will be, duly validly authorized, executed and delivered by the Seller and, assuming due authorization, execution and will be delivery hereof by the Purchaser, constitutes a legal, valid and binding obligations obligation of Seller the Seller, enforceable against the Seller in accordance with their respective terms (its terms, except to the extent that as such enforcement may be limited by applicable bankruptcy, insolvency, reorganization, receivership, moratorium and other laws affecting the enforcement of creditors' rights in general and by general equity principles relating to (regardless of whether such enforcement is considered in a proceeding in equity or limiting the right of contracting parties generallyat law), will be sufficient and by public policy considerations underlying the securities laws, to convey title (if they the extent that such public policy considerations limit the enforceability of the provisions of this Agreement which purport to do soprovide indemnification from liabilities under applicable securities laws;
(iii) The execution and delivery of this Agreement by the Seller and the Seller's performance and compliance with the terms of this Agreement will not (A) violate the Seller's articles of incorporation or bylaws, (B) violate any provisions law or regulation or any administrative decree or order to which it is subject or (C) constitute a material default (or an event which, with notice or lapse of time, or both, would constitute a material default) under, or result in the breach of, any material contract, agreement or other instrument to which the Seller is a party or to by which the Property or Seller is bound;
(iv) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or other governmental agency or body, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or have consequences that would materially and adversely affect its performance hereunder;
(v) The Seller is not a party to or bound by any agreement or instrument or subject to any articles of incorporation, bylaws or bound. Subject any other corporate restriction or any judgment, order, writ, injunction, decree, law or regulation that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the ability of the Seller to perform its obligations under this Agreement or that requires the consent of any third person to the satisfaction of Section 8(a)(i) below, no consent, waiver or approval by any third party is required in connection with the execution and delivery by Seller of this Agreement or the performance by the Seller of its obligations under this Agreement (except to the extent such consent has been obtained);
(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 or the consummation of the transactions contemplated by this Agreement except as have previously been obtained, and no bulk sale law applies to such transactions;
(vii) No litigation is pending or, to the Seller's knowledge, threatened against the Seller that would, in the Seller's good faith and reasonable judgment, prohibit its entering into this Agreement or materially and adversely affect the performance by the Seller of its obligations to be performed by Seller under this Agreement; and
(viii) Under generally accepted accounting principles ("GAAP") and for federal income tax purposes, the Seller will report the transfer of the Mortgage Loans to the Purchaser as a sale of the Mortgage Loans to the Purchaser in exchange for consideration consisting of a cash amount equal to the Aggregate Purchase Price. The consideration received by the Seller upon the sale of the Mortgage Loans to the Purchaser will constitute at least reasonably equivalent value and fair consideration for the Mortgage Loans. The Seller will be solvent at all relevant times prior to, and will not be rendered insolvent by, the sale of the Mortgage Loans to the Purchaser. The Seller is not selling the Mortgage Loans to the Purchaser with any intent to hinder, delay or defraud any of the creditors of the Seller.
(b) Except The Seller hereby makes the representations and warranties contained in Schedule I and Schedule II hereto for the benefit of the Purchaser and the Trustee for the benefit of the Certificateholders as set forth on Exhibit M attached heretoof the Closing Date, Seller has not received from any governmental authority written notice, with respect to (and Seller has no actual knowledge (without any duty of inquiry or investigationsolely with respect to) of any violation of any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable to the Property, or any part thereof, that will not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change to the zoning classification or any proceedings to widen or realign any streets or highways adjacent to the Property or of any condemnation proceedingseach Mortgage Loan.
(c) To Seller’s If the Seller receives written notice of a Document Defect or a Breach pursuant to Section 2.03(a) of the Pooling and Servicing Agreement relating to a Mortgage Loan, then the Seller shall not later than 90 days from receipt of such notice (or, in the case of a Document Defect or Breach relating to a Mortgage Loan not being a "qualified mortgage" within the meaning of the REMIC Provisions (a "Qualified Mortgage"), not later than 90 days from any party to the Pooling and Servicing Agreement discovering such Document Defect or Breach provided the Seller receives such notice in a timely manner), if such Document Defect or Breach shall materially and adversely affect the value of the applicable Mortgage Loan or the interests of the Certificateholders therein, cure such Document Defect or Breach, as the case may be, in all material respects, which shall include payment of actual knowledgeor provable losses and any Additional Trust Fund Expenses directly resulting therefrom or, if such Document Defect or Breach (other than omissions solely due to a document not having been returned by the related recording office) cannot be cured within such 90-day period, (i) repurchase the operating statementsaffected Mortgage Loan at the applicable Purchase Price not later than the end of such 90-day period or (ii) substitute a Qualified Substitute Mortgage Loan for such affected Mortgage Loan not later than the end of such 90-day period (and in no event later than the second anniversary of the Closing Date) and pay the Master Servicer for deposit into the Certificate Account, income any Substitution Shortfall Amount in connection therewith; provided, however, that unless the Breach would cause the Mortgage Loan not to be a Qualified Mortgage, and expense reports if such Document Defect or Breach is capable of being cured but not within such 90-day period and the Seller has commenced and is diligently proceeding with the cure of such Document Defect or Breach within such 90-day period, such Seller shall have an additional 90 days to complete such cure (or, failing such cure, to repurchase or substitute the related Mortgage Loan); and provided, further, that with respect to such additional 90-day period the Seller shall have delivered an officer's certificate to the Trustee setting forth what actions the Seller is pursuing in connection with the cure thereof and stating that the Seller anticipates that such Document Defect or Breach will be cured within the additional 90-day period; and provided; further, that no Document Defect (other than with respect to a Mortgage Note, Mortgage, title insurance policy, Ground Lease or any letter of credit) shall be considered to materially and adversely affect the value of the related Mortgage Loan or the interests of the Certificateholders therein unless the document with respect to which the Document Defect exists is required in connection with an imminent enforcement of the mortgagee's rights or remedies under the related Mortgage Loan, defending any claim asserted by any borrower or third party with respect to the Mortgage Loan, establishing the validity or priority of any lien or any collateral securing the Mortgage Loan or for any immediate significant servicing obligations. A Document Defect or Breach as to a Mortgage Loan that is cross-collateralized and cross-defaulted with one or more other Mortgage Loans (each a "Crossed Loan") that materially and adversely affects the value of such other Mortgage Loans, and is not cured as provided for above, shall require the repurchase or substitution of all other contracts such cross-collateralized and cross-defaulted Mortgage Loans which are materially and adversely affected by such Document Defect or documents Breach; provided, that if any Crossed Loan is not so repurchased or substituted, then such Crossed Loan shall be released from its cross-collateralization and cross-default provision so long as such Crossed Loan is held in the Trust Fund; provided, further, that the borrower under such Mortgage Loan is an intended third party beneficiary of this provision, which shall not be modified without such borrower's consent. For a period of two years from the Closing Date, so long as there remains any Mortgage File relating to a Mortgage Loan as to which there is any uncured Document Defect or Breach, the Seller shall provide the officer's certificate to the Trustee described above as to the reasons such Document Defect or Breach remains uncured and as to the actions being taken to pursue cure. Notwithstanding the foregoing, the delivery of a commitment to issue a policy of lender's title insurance as described in clause 12 of Schedule I hereof in lieu of the delivery of the actual policy of lender's title insurance shall not be considered a Document Defect or Breach with respect to any Mortgage File if such actual policy of insurance is delivered to the Trustee or a Custodian on its behalf not later than the 90th day following the Closing Date. If (i) any Mortgage Loan is required to be delivered to Purchaser pursuant to this Agreement are truerepurchased or substituted for in the manner described in the immediately preceding paragraph, correct and complete copies; and (ii) such Mortgage Loan is a Crossed Loan, and (iii) the applicable Document Defect or Breach does not constitute a Document Defect or Breach, as the case may be, as to any other Crossed Loan in such Crossed Group (without regard to this paragraph), then the applicable Document Defect or Breach, as the case may be, will be deemed to constitute a Document Defect or Breach, as the case may be, as to any other Crossed Loan in the Crossed Group for purposes of this paragraph, and the Seller will be required to repurchase or substitute for all contracts of the remaining Crossed Loan(s) in the related Crossed Group as provided in the immediately preceding paragraph unless such other Crossed Loans in such Crossed Group satisfy the Crossed Loan Repurchase Criteria and satisfy all other criteria for substitution and repurchase of Mortgage Loans set forth herein. In the event that the remaining Crossed Loans satisfy the aforementioned criteria, the Seller may elect either to repurchase or documents substitute for only the affected Crossed Loan as to which the related Breach or Document Defect exists or to repurchase or substitute for all of the Crossed Loans in the related Crossed Group. The Seller shall be responsible for the cost of any Appraisal required to be delivered obtained by the Master Servicer to determine if the Crossed Loan Repurchase Criteria have been satisfied, so long as the scope and cost of such Appraisal has been approved by the Seller (such approval not to be unreasonably withheld). With respect to any Crossed Loan, to the extent that the Seller repurchases or substitutes for an affected Crossed Loan in the manner prescribed above while the Purchaser pursuant continues to this Agreement are hold any related Crossed Loans, the Seller and the Purchaser agree to modify upon such repurchase or substitution, the related Mortgage Loan documents in a manner such that such affected Crossed Loan repurchased or substituted by the Seller, on the one hand, and any related Crossed Loans still held by the Purchaser, on the other, would no longer be cross-defaulted or cross-collateralized with one another; provided, that the Seller shall have furnished to the Purchaser, at its expense, with an Opinion of Counsel that such modification shall not cause an Adverse REMIC Event; provided, further, that if such Opinion of Counsel cannot be furnished, the Seller and the Purchaser hereby agree that such repurchase or substitution of only the affected Cross Loans, notwithstanding anything to the contrary herein, shall not be permitted. Any expenses incurred by the Purchaser in connection with such modification (including but not limited to reasonable attorney fees) shall be paid by the Seller. Any reserve or other cash collateral or letters of credit securing the Crossed Loans shall be allocated between such Mortgage Loans in accordance with the Mortgage Loan documents. All other terms of the Mortgage Loans shall remain in full force and effect, without material default by any party and effect without any right of set-off except as disclosed in writing at the time of such deliverymodification thereof.
(d) There is no master lease In connection with any permitted repurchase or substitution of one or more Mortgage Loans contemplated hereby, upon receipt of a certificate from a Servicing Officer certifying as to the receipt of the Property Purchase Price or Substitution Shortfall Amount(s), as applicable, in the Certificate Account, and the delivery of the Mortgage File(s) and the Servicing File(s) for the related Qualified Substitute Mortgage Loan(s) to any affiliate of the Custodian and the Master Servicer, respectively, if applicable (i) the Trustee shall execute and deliver such endorsements and assignments as are provided to it by the Master Servicer, in each case without recourse, representation or warranty, as shall be necessary to vest in the Seller, the legal and beneficial ownership of each repurchased Mortgage Loan or if such master lease existssubstituted Mortgage Loan, Seller as applicable, (ii) the Trustee, the Custodian, the Master Servicer and the Special Servicer shall cause such master lease each tender to be terminated at Closing without Purchaser paying any termination fee. The Rent Roll attached hereto as Exhibit B is truethe Seller, correct and complete in upon delivery to each of them of a receipt executed by the Seller, all material respects as portions of the date set forth on Mortgage File and other documents pertaining to such Mortgage Loan possessed by it, and (iii) the Rent Roll. As of Master Servicer and the Closing, Special Servicer shall release to the Rent Roll delivered at the Closing will be true, correct Seller any Escrow Payments and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are Reserve Funds held by it in full force and effect, without default by any party and without any right of setoff, except as expressly provided by the terms respect of such Leases repurchased or as disclosed on the Rent Roll attached hereto. The copies of the Leases and other agreements with the tenants under the Leases (the “Tenants”) delivered to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating to the Real Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real Propertydeleted Mortgage Loans.
(e) Exhibit J attached hereto is a true and complete schedule of all Without limiting the remedies of the Contracts (as hereinafter defined in Section 7)Purchaser, true, complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy the Certificateholders or the Trustee on behalf of the management agreement currently in effect with respect Certificateholders pursuant to this Agreement, it is acknowledged that the representations and warranties are being made for risk allocation purposes. This Section 3 provides the sole remedy available to the Property. To Seller’s actual knowledgeCertificateholders, or the Contracts are Trustee on behalf of the Certificateholders, respecting any Document Defect in full force and effect, without material default by a Mortgage File or any party and without any claims made for the right of setoff, except as expressly provided by the terms of such Contracts or as disclosed to Purchaser in writing at the time of such delivery. The Contracts constitute the entire agreements with such vendors relating to the Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excluding, however, the Leases and Permitted Encumbrances) affecting the Property which will survive the Closing.
(f) At the Closing, there will be no outstanding contracts made by Seller for the construction or repair Breach of any improvements to the Improvements which have not been fully paid for, and Seller shall cause to be discharged all mechanics’ representation or materialmen’s liens arising from any labor or materials furnished to the Improvements prior to the Closing.
(g) Except as warranty set forth in Exhibit K attached hereto, there are no pending or, or required to Seller’s actual knowledge (without any duty of inquiry or investigation), threatened legal proceedings or actions of any kind or character affecting the Property or Seller’s interest therein, including, without limitation, condemnation proceedings.
(h) Seller has not received any actual written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or the Property relating in any way be made pursuant to a Release or compliance with Environmental Laws. For purposes Section 3 of this Agreement, the phrase “Environmental Laws” shall mean any federal, state or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materials, or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 00.
Appears in 3 contracts
Samples: Mortgage Loan Purchase Agreement (Wachovia Commercial Mort Pass Thru Cert Ser 2002 C1), Mortgage Loan Purchase Agreement (Wachovia Commercial Mort Pass Thru Cert Ser 2002 C1), Mortgage Loan Purchase Agreement (Wachovia Commercial Mort Pass Thru Cert Ser 2002 C1)
Representations, Warranties and Covenants of Seller. Seller hereby represents, represents and warrants and covenants to Purchaser that the following matters are true and correct as of the execution of this Agreement and will also be true and correct as of the Closing, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx Xxxxxxxxxfollows:
(a) Seller is a statutory trust duly formed has the requisite power and validly existing authority to execute, deliver and perform his obligations under this Agreement, having received written authorization to proceed with the laws of sale from the State of DelawareBusiness Advisors to the trust. This Agreement has been, and all constitutes the documents executed by Seller which are to be delivered to Purchaser at the Closing will be, duly authorized, executed and delivered by Seller and will be legal, valid and binding obligations obligation of Seller enforceable against Seller in accordance with their respective terms its terms.
(except to the extent that such enforcement may be limited by applicable bankruptcyb) The execution, insolvency, moratorium delivery and other principles relating to or limiting the right performance of contracting parties generally), will be sufficient to convey title (if they purport to do so) this Agreement does not and will not (i) violate any provisions law, regulation, judgment, decree, order or other directive of any material court or governmental agency applicable to or binding upon Seller, or (ii) breach or constitute a default under any agreement to which Seller is a party or to by which the Property or Seller is subject bound.
(c) Seller is the owner of the Shares of the Purchaser being sold, assigned, bargained and conveyed pursuant hereto. Upon the sale to Purchaser, Purchaser will acquire the Shares being transferred, free from any security interest, pledge, option, equity, claim or boundother right or interest of any kind.
(d) Seller has received and carefully reviewed Purchaser’s filings with the Securities and Exchange Commission and Purchaser’s press releases posted on Purchaser’s website (the filings and press releases, the “Purchaser Disclosure”) and has had full access to Purchaser’s other directors and executives for purposes of discussion the Company’s condition, operations and plans. Subject Seller acknowledges that no oral representations have been made or information furnished to Seller or Seller’s representatives that are in any way inconsistent with the Purchaser Disclosure. Seller confirms that no representations, warranties, or other agreements (whether express or implied) have been made by Purchaser with respect to the satisfaction of Section 8(a)(i) belowtransactions contemplated hereby, no consentexcept for those representations, waiver or approval by any third party is required warranties, and agreements that are specifically set forth in connection with the execution and delivery by Seller of this Agreement or the performance by Seller of the obligations to be performed by Seller under this Agreement.
(be) Except as set forth on Exhibit M attached heretoSeller, Seller has not received from any governmental authority written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any violation of any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable to the Propertyextent necessary, or any part thereof, that will not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change to the zoning classification or any proceedings to widen or realign any streets or highways adjacent to the Property or of any condemnation proceedings.
(c) To Seller’s actual knowledge, (i) the operating statements, income and expense reports and all other contracts or documents required to be delivered to Purchaser pursuant to this Agreement are true, correct and complete copies; and (ii) all contracts or documents required to be delivered to Purchaser pursuant to this Agreement are in full force and effectshall, without material default additional consideration, take such additional or further actions and execute such other or further documents as may be reasonably requested by any party and without any right of set-off except as disclosed in writing at the time of such delivery.
(d) There is no master lease of the Property to any affiliate of Seller, or if such master lease exists, Seller shall cause such master lease to be terminated at Closing without Purchaser paying any termination fee. The Rent Roll attached hereto as Exhibit B is true, correct and complete in all material respects as of the date set forth on the Rent Roll. As of the Closing, the Rent Roll delivered at the Closing will be true, correct and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default by any party and without any right of setoff, except as expressly provided by the terms of such Leases or as disclosed on the Rent Roll attached hereto. The copies of the Leases and other agreements with the tenants under the Leases (the “Tenants”) delivered to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating to the Real Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real Property.
(e) Exhibit J attached hereto is a true and complete schedule of all of the Contracts (as hereinafter defined in Section 7), true, complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy of the management agreement currently in effect with respect to the Property. To Seller’s actual knowledge, the Contracts are in full force and effect, without material default by any party and without any claims made for the right of setoff, except as expressly provided by the terms of such Contracts or as disclosed to Purchaser in writing at order to evidence, confirm or carry out the time of such delivery. The Contracts constitute the entire agreements with such vendors relating to the Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excluding, however, the Leases and Permitted Encumbrances) affecting the Property which will survive the Closingtransactions contemplated hereby.
(f) At the Closing, there will be no outstanding contracts made by Seller for the construction or repair of any improvements to the Improvements which have not been fully paid for, and Seller shall cause to be discharged all mechanics’ or materialmen’s liens arising from any labor or materials furnished to the Improvements prior to the Closing.
(g) Except as set forth in Exhibit K attached hereto, there are no pending or, to Seller’s actual knowledge (without any duty of inquiry or investigation), threatened legal proceedings or actions of any kind or character affecting the Property or Seller’s interest therein, including, without limitation, condemnation proceedings.
(h) Seller has not received any actual written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or the Property relating in any way to a Release or compliance with Environmental Laws. For purposes of this Agreement, the phrase “Environmental Laws” shall mean any federal, state or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materials, or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 00
Appears in 3 contracts
Samples: Shares Purchase Agreement (Preformed Line Products Co), Shares Purchase Agreement (Preformed Line Products Co), Shares Purchase Agreement (Preformed Line Products Co)
Representations, Warranties and Covenants of Seller. (a) The Seller hereby represents, represents and warrants to and covenants to Purchaser that with the following matters are true and correct Purchaser, as of the execution of this Agreement and will also be true and correct as of the Closingdate hereof, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx Xxxxxxxxxthat:
(ai) The Seller is a statutory trust corporation duly formed and organized, validly existing and in good standing under the laws of the State of Delaware. Delaware and the Seller has taken all necessary corporate action to authorize the execution, delivery and performance of this Agreement by it, and has the power and authority to execute, deliver and perform this Agreement and all transactions contemplated hereby.
(ii) This Agreement has been, been duly and all the documents executed by Seller which are to be delivered to Purchaser at the Closing will be, duly validly authorized, executed and delivered by Seller the Seller, all requisite action by the Seller's directors and will be legalofficers has been taken in connection therewith, valid and (assuming the due authorization, execution and delivery hereof by the Purchaser) this Agreement constitutes the valid, legal and binding obligations agreement of Seller the Seller, enforceable against the Seller in accordance with their respective terms (its terms, except to the extent that as such enforcement may be limited by applicable (A) laws relating to bankruptcy, insolvency, moratorium and fraudulent transfer, reorganization, receivership, conservatorship or moratorium, (B) other principles laws relating to or limiting affecting the right rights of contracting parties creditors generally, or (C) general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law), will be sufficient to convey title .
(if they purport to do soiii) The execution and delivery of this Agreement by the Seller and the Seller's performance and compliance with the terms of this Agreement will not (A) violate the Seller's certificate of incorporation or bylaws, (B) violate any provisions law or regulation or any administrative decree or order to which it is subject or (C) constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material contract, agreement or other instrument to which the Seller is a party or to by which the Property or Seller is bound, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or materially and adversely affect its performance hereunder.
(iv) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or other governmental agency or body, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or materially and adversely affect its performance hereunder.
(v) The Seller is not a party to or bound by any agreement or instrument or subject to any certificate of incorporation, bylaws or bound. Subject any other corporate restriction or any judgment, order, writ, injunction, decree, law or regulation that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the ability of the Seller to perform its obligations under this Agreement or that requires the consent of any third person to the satisfaction of Section 8(a)(i) below, no consent, waiver or approval by any third party is required in connection with the execution and delivery by Seller of this Agreement or the performance by the Seller of its obligations under this Agreement (except to the extent such consent has been obtained).
(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 or the consummation of the transactions contemplated by this Agreement except as have previously been obtained, and no bulk sale law applies to such transactions.
(vii) None of the sale of the Mortgage Loans by the Seller, the transfer of the Mortgage Loans to the Trustee, and the execution, delivery or performance of this Agreement by the Seller, results or will result in the creation or imposition of any lien on any of the Seller's assets or property that would have a material adverse effect upon the Seller's ability to perform its duties and obligations under this Agreement or materially impair the ability of the Purchaser to be performed realize on the Mortgage Loans.
(viii) There is no action, suit, proceeding or investigation pending or to the knowledge of the Seller, threatened against the Seller in any court or by or before any other governmental agency or instrumentality which would, in the Seller's good faith and reasonable judgment, prohibit its entering into this Agreement or materially and adversely affect the validity of this Agreement or the performance by the Seller of its obligations under this Agreement.
(bix) Except Under generally accepted accounting principles ("GAAP") and for federal income tax purposes, the Seller will report the transfer of the Mortgage Loans to the Purchaser as set forth on Exhibit M attached hereto, a sale of the Mortgage Loans to the Purchaser in exchange for consideration consisting of a cash amount equal to the Purchase Consideration. The consideration received by the Seller has not received from any governmental authority written noticeupon the sale of the Mortgage Loans to the Purchaser will constitute at least reasonably equivalent value and fair consideration for the Mortgage Loans. The Seller will be solvent at all relevant times prior to, and Seller has no actual knowledge (without any duty will not be rendered insolvent by, the sale of inquiry or investigation) of any violation of any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable the Mortgage Loans to the Property, or any part thereof, that will Purchaser. The Seller is not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change selling the Mortgage Loans to the zoning classification Purchaser with any intent to hinder, delay or defraud any proceedings to widen or realign any streets or highways adjacent to of the Property or creditors of any condemnation proceedingsthe Seller.
(cx) To Seller’s actual knowledge, (i) The Prospectus Supplement contains all the operating statements, income and expense reports and all other contracts or documents information that is required to be delivered to Purchaser provided in respect of the Seller (that arise from its role as "sponsor" (within the meaning of Regulation AB)), the Mortgage Loans, the related Mortgagors and the related Mortgaged Properties pursuant to this Agreement are true, correct and complete copies; and (ii) all contracts or documents required to be delivered to Purchaser pursuant to this Agreement are in full force and effect, without material default by any party and without any right of set-off except as disclosed in writing at the time of such delivery.
(d) There is no master lease of the Property to any affiliate of Seller, or if such master lease exists, Seller shall cause such master lease to be terminated at Closing without Purchaser paying any termination fee. The Rent Roll attached hereto as Exhibit B is true, correct and complete in all material respects as of the date set forth on the Rent Roll. As of the Closing, the Rent Roll delivered at the Closing will be true, correct and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default by any party and without any right of setoff, except as expressly provided by the terms of such Leases or as disclosed on the Rent Roll attached hereto. The copies of the Leases and other agreements with the tenants under the Leases (the “Tenants”) delivered to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating to the Real Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real Property.
(e) Exhibit J attached hereto is a true and complete schedule of all of the Contracts (as hereinafter defined in Section 7), true, complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy of the management agreement currently in effect with respect to the Property. To Seller’s actual knowledge, the Contracts are in full force and effect, without material default by any party and without any claims made for the right of setoff, except as expressly provided by the terms of such Contracts or as disclosed to Purchaser in writing at the time of such delivery. The Contracts constitute the entire agreements with such vendors relating to the Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excluding, however, the Leases and Permitted Encumbrances) affecting the Property which will survive the Closing.
(f) At the Closing, there will be no outstanding contracts made by Seller for the construction or repair of any improvements to the Improvements which have not been fully paid for, and Seller shall cause to be discharged all mechanics’ or materialmen’s liens arising from any labor or materials furnished to the Improvements prior to the Closing.
(g) Except as set forth in Exhibit K attached hereto, there are no pending or, to Seller’s actual knowledge (without any duty of inquiry or investigation), threatened legal proceedings or actions of any kind or character affecting the Property or Seller’s interest therein, including, without limitation, condemnation proceedings.
(h) Seller has not received any actual written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or the Property relating in any way to a Release or compliance with Environmental LawsRegulation AB. For purposes purpose of this Agreement, the phrase “Environmental Laws” "Regulation AB" shall mean any federalSubpart 229.1100 - Asset Backed Securities (Regulation AB), state 17 C.F.R. Sections 229.1100-229.1123, as such may be amended from time to time, and subject to such clarification and interpretation as have been provided by the Commission in the adopting release (Asset-Backed Securities, Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506-1,631 (Jan. 7, 2005)) or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materialsby the staff of the Commission, or as may be provided by the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 00Commission or its staff from time to time.
Appears in 3 contracts
Samples: Mortgage Loan Purchase Agreement (MLMT 2008-C1), Mortgage Loan Purchase Agreement (MLMT 2008-C1), Mortgage Loan Purchase Agreement (ML-CFC Commercial Mortgage Trust 2007-9)
Representations, Warranties and Covenants of Seller. Seller hereby representsrepresents and warrants to WFBC with respect to each account offered by Seller to WFBC hereunder that (i) Seller is the sole owner of such account, warrants which account is free and covenants clear of any liens, claims, equities or encumbrances whatsoever, and upon each purchase by WFBC of such account, WFBC will own such account free and clear of any liens, claims, equities or encumbrances whatsoever and the consideration received by Seller from WFBC for such account is fair and adequate, (ii) Seller is the sole obligee under such account, and has full power and is duly authorized to Purchaser that sell, assign and transfer such account to WFBC hereunder, and the following matters are true and correct as date of sale of such account is not more than 60 days after the date of the execution original invoice relating to such account, (iii) Seller has no knowledge of this Agreement and any fact which would lead it to expect that, at the date of sale of such account to WFBC, such account will also not be true and correct as paid in the full stated amount when due, (iv) such account arises out of a bona fide sale of conforming goods or the Closingbona fide rendition of services by Seller, and all references underlying goods have been delivered to “the account debtor, or all underlying services have been rendered by Seller’s actual knowledge” shall mean the actual knowledge , in complete fulfillment of Xxxxxxxxxxx X. Xxxxxx or Xxxx Xxxxxxxxx:
(a) Seller is a statutory trust duly formed and validly existing under the laws all of the State terms and conditions of Delaware. This Agreement has beena fully executed, delivered and unexpired contract with the account debtor, and all the documents executed by Seller account debtor has accepted the goods or services to which are to be delivered to Purchaser at the Closing will beaccount relates, duly authorized, executed (v) such account is denominated and delivered by Seller payable only in United States dollars and will be constitutes the legal, valid and binding obligations payment obligation of Seller the account debtor, enforceable against Seller in accordance with their respective its terms (except to the extent that as such enforcement enforceability may be limited by applicable bankruptcy, insolvency, moratorium and reorganization, moratorium, or other principles relating to or limiting similar laws affecting the right enforcement of contracting parties creditor’s rights generally), will be sufficient to convey title (if they purport to do sovi) such account is current and not past due, has not been paid by or on behalf of the account debtor in whole or in part, and is not and will not violate be subject to any provisions of any material agreement dispute, recision, set-off, recoupment, defense or claim by the account debtor, whether relating to which Seller is a party price, quality, workmanship, delay in delivery, set-off, counterclaim or to which otherwise, and the Property or Seller is subject or bound. Subject to the satisfaction of Section 8(a)(i) below, no consent, waiver or approval by any third party is required in connection with the execution and delivery by Seller of this Agreement or the performance by Seller of the obligations to be performed by Seller under this Agreement.
(b) Except as set forth on Exhibit M attached hereto, Seller account debtor has not received from any governmental authority written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any violation of any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable to the Property, or any part thereof, that will not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received claim any written notice from any governmental authority regarding any change to the zoning classification or any proceedings to widen or realign any streets or highways adjacent to the Property or of any condemnation proceedings.
(c) To Seller’s actual knowledge, (i) the operating statements, income and expense reports and all other contracts or documents required to be delivered to Purchaser pursuant to this Agreement are true, correct and complete copies; and (ii) all contracts or documents required to be delivered to Purchaser pursuant to this Agreement are in full force and effect, without material default by any party and without any right of set-off except as disclosed in writing at the time of such delivery.
(d) There is no master lease of the Property to any affiliate of Seller, or if such master lease exists, Seller shall cause such master lease to be terminated at Closing without Purchaser paying any termination fee. The Rent Roll attached hereto as Exhibit B is true, correct and complete in all material respects as of the date set forth on the Rent Roll. As of the Closing, the Rent Roll delivered at the Closing will be true, correct and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default by any party and without any right of setoff, except as expressly provided by the terms of such Leases or as disclosed on the Rent Roll attached hereto. The copies of the Leases and other agreements with the tenants under the Leases (the “Tenants”) delivered to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating to the Real Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real Property.
(e) Exhibit J attached hereto is a true and complete schedule of all of the Contracts (as hereinafter defined in Section 7), true, complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy of the management agreement currently in effect with respect to the Property. To Seller’s actual knowledge, the Contracts are in full force and effect, without material default by any party and without any claims made for the right of setoff, except as expressly provided by the terms of such Contracts or as disclosed to Purchaser in writing at the time of such delivery. The Contracts constitute the entire agreements with such vendors relating to the Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excluding, however, the Leases and Permitted Encumbrances) affecting the Property which will survive the Closing.
(f) At the Closing, there will be no outstanding contracts made by Seller for the construction or repair of any improvements to the Improvements which have not been fully paid for, and Seller shall cause to be discharged all mechanics’ or materialmen’s liens arising from any labor or materials furnished to the Improvements prior to the Closing.
(g) Except as set forth in Exhibit K attached hereto, there are no pending or, to Seller’s actual knowledge (without any duty of inquiry or investigation), threatened legal proceedings or actions defense of any kind or character affecting (other than bankruptcy or insolvency arising after the Property date of sale of such account to WFBC hereunder) against payment of such account, and (vii) as of the date of purchase by WFBC of such account the account debtor with respect to such account is not a debtor in any bankruptcy proceedings, insolvent, undergoing composition or adjustment of debts or unable to make payment of its obligations when due and the account debtor is located (within the meaning of Section 9-103 of the applicable UCC) and has its principle executive offices within the United States. Seller further represents and warrants to WFBC that (a) the execution, delivery and performance of this Agreement by Seller have been duly authorized and this Agreement constitutes the legal, valid and binding obligation of Seller’s interest therein, includingenforceable against Seller in accordance with its terms, without limitation, condemnation proceedings.
(hb) Seller is not a debtor in any bankruptcy proceedings, insolvent, undergoing composition or adjustment of debts or unable to make payment of its obligations when due and no petition in bankruptcy has not received any actual written notice, and Seller has no actual knowledge (without any duty of inquiry been filed by or investigation) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or any affiliate thereof, nor has Seller or any of its affiliates filed any petition seeking an arrangement of its debtors or for any other relief under the Property relating United States Bankruptcy Code (the “Bankruptcy Code”), and no application for appointment of a receiver or trustee for all or a substantial part of the property of Seller or any affiliate thereof is pending, nor has Seller or any affiliate thereof made any assignment for the benefit of creditors, (c) Seller is not in default of any way debt or obligation to a Release any lender or compliance other creditor, and (d) Seller’s principle place of business, chief executive office, location where the records concerning its books of account and contract rights are kept, and location of any property subject to the security interest granted in Section 7 hereof, unless changed upon notice to WFBC complying with Environmental Laws. For purposes the next following sentence and Section 15 of this Agreement, the phrase is its “Environmental LawsAddress for Notices” shall mean any described in Section 15 hereof, (e) Seller and each Guarantor is solvent, is able to pay its or his debts as they become due, and has no outstanding liens, suits, garnishments, bankruptcies, or court actions which could render it or him insolvent, (f) all federal, state state, county, city, and other taxes, including without limitation, income taxes, payroll taxes, real estate taxes, and sales taxes which are due and owing by Seller have been paid, and by the execution hereof, Seller certifies that all future taxes, of any kind and character, will be paid when due. Seller agrees not to change the location of its principal place of business or local lawchief executive office, statute, ordinance, order, decree, rule the location where its records concerning its books of account or regulation and any common laws regarding health, safety, radioactive materialscontract rights are kept, or the environment, includinglocation of any property subject to the security interest granted in Section 7 hereof, without limitationgiving at least 15 days advance written notice thereof to WFBC. Each representation and warranty of Seller contained in this Agreement shall be deemed to be made at and as of the date hereof and at and as of the date of each sale of accounts to WFBC hereunder. Seller agrees to indemnify and hold WFBC harmless against any breach by Seller of any representation, warranty or agreement of Seller contained in this Agreement, and against any claims or damages arising out of the Comprehensive Environmental Responsemanufacture, Compensation sale, possession or use of, or otherwise relating to, goods, or the performance of services, associated with or relating to accounts or related rights purchased (or with respect to which a security interest is granted) hereunder. Seller agrees to notify WFBC immediately of any breach by Seller of any representation, warranty or agreement of Seller contained herein or should any representation, warranty or agreement made herein become untrue or false at any time. Seller further agrees to notify WFBC immediately of the assertion by any account debtor of any dispute or other claim (including any defense or offset asserted by any account debtor) with respect to any account sold to WFBC hereunder, or with respect to any related goods or services. Upon WFBC’s request, Seller agrees to settle, at its own expense and Liability Act for the benefit of 1980WFBC any such dispute or claim upon such terms as WFBC may in its sole discretion deem advisable or (ii) to assign the related account to Seller, as amendedwithout recourse to WFBC, 42 U.S.C. § 9601and charge any unpaid balance with respect thereof (up to the amount of the Initial Payment with respect thereto and WFBC’s Discount and Fees (through the date of such change) with respect thereto) against any amounts withheld by WFBC from Reserves pursuant to Section 6 hereof or against such other funds, et seqWFBC may require Seller to pay (and Seller hereby agrees to pay) to WFBC on demand any such unpaid balance. (“CERCLA”); Seller agrees to notify WFBC in advance of the Resource Conservation and Recovery Act, 00filing of any voluntary bankruptcy proceeding or any other voluntary insolvency proceeding.
Appears in 3 contracts
Samples: Account Transfer Agreement (Corporate Resource Services, Inc.), Account Transfer Agreement (Hyperion Energy, Inc.), Account Transfer Agreement (Hyperion Energy, Inc.)
Representations, Warranties and Covenants of Seller. (a) The Seller hereby represents, represents and warrants to and covenants to Purchaser that with the following matters are true and correct Purchaser, as of the execution of this Agreement and will also be true and correct as of the Closingdate hereof, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx Xxxxxxxxxthat:
(ai) The Seller is a statutory trust duly formed corporation organized and validly existing and in good standing under the laws of the State of Delaware. New York and possesses all requisite authority, power, licenses, permits and franchises to carry on its business as currently conducted by it and to execute, deliver and comply with its obligations under the terms of this Agreement;
(ii) This Agreement has been, been duly and all the documents executed by Seller which are to be delivered to Purchaser at the Closing will be, duly validly authorized, executed and delivered by the Seller and, assuming due authorization, execution and will be delivery hereof by the Purchaser, constitutes a legal, valid and binding obligations obligation of Seller the Seller, enforceable against the Seller in accordance with their respective terms (its terms, except to the extent that as such enforcement may be limited by applicable bankruptcy, insolvency, reorganization, receivership, moratorium and other laws affecting the enforcement of creditors' rights in general and by general equity principles relating to (regardless of whether such enforcement is considered in a proceeding in equity or limiting the right of contracting parties generallyat law), will be sufficient and by public policy considerations underlying the securities laws, to convey title (if they the extent that such public policy considerations limit the enforceability of the provisions of this Agreement which purport to do soprovide indemnification from liabilities under applicable securities laws;
(iii) The execution and delivery of this Agreement by the Seller and the Seller's performance and compliance with the terms of this Agreement will not (A) violate the Seller's organizational documents, (B) violate any provisions law or regulation or any administrative decree or order to which it is subject or (C) constitute a material default (or an event which, with notice or lapse of time, or both, would constitute a material default) under, or result in the breach of, any material contract, agreement or other instrument to which the Seller is a party or to by which the Property or Seller is bound, which violation, default or breach, in the case of either clause (iii)(B) or (iii)(C) might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the financial condition or the operations of the Seller or its properties (taken as a whole) or have consequences that would materially and adversely affect its performance hereunder;
(iv) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or other governmental agency or body, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the financial condition or the operations of the Seller or its properties (taken as a whole) or have consequences that would materially and adversely affect its performance hereunder;
(v) The Seller is not a party to or bound by any agreement or instrument or subject to any other corporate restriction or bound. Subject any judgment, order, writ, injunction, decree, law or regulation that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the ability of the Seller to perform its obligations under this Agreement or that requires the consent of any third person to the satisfaction of Section 8(a)(i) below, no consent, waiver or approval by any third party is required in connection with the execution and delivery by Seller of this Agreement or the performance by the Seller of its obligations under this Agreement (except to the extent such consent has been obtained);
(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 or the consummation of the transactions involving the Seller contemplated by this Agreement except as have previously been obtained, and no bulk sale law applies to such transactions;
(vii) No litigation is pending or, to the Seller's knowledge, threatened against the Seller that would, in the Seller's good faith and reasonable judgment, prohibit its entering into this Agreement or materially and adversely affect the performance by the Seller of its obligations to be performed by Seller under this Agreement; and
(viii) For purposes of accounting under generally accepted accounting principles ("GAAP"), and for federal income tax purposes, the Seller will report the transfer of the Mortgage Loans to the Purchaser as a sale of the Mortgage Loans to the Purchaser in exchange for consideration contemplated by this Agreement. The consideration received by the Seller upon the sale of the Mortgage Loans to the Purchaser will constitute at least reasonably equivalent value and fair consideration for the Mortgage Loans. The Seller will be solvent at all relevant times prior to, and will not be rendered insolvent by, the sale of the Mortgage Loans to the Purchaser. The Seller is not transferring the Mortgage Loans to the Purchaser with any intent to hinder, delay or defraud any of the creditors of the Seller or on account of an antecedent debt.
(b) Except as The Seller hereby makes, on the date hereof and on the Closing Date, the representations and warranties contained in Schedule I and Schedule II hereto with respect to each Mortgage Loan, for the benefit of the Purchaser, which representations and warranties are subject to the exceptions set forth on Exhibit M attached hereto, Seller has not received from any governmental authority written notice, Schedules III and Seller has no actual knowledge (without any duty of inquiry or investigation) IV. References in this Agreement to "Breach" mean a breach of any violation of any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable to the Property, or any part thereof, that will not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change to the zoning classification or any proceedings to widen or realign any streets or highways adjacent to the Property or of any condemnation proceedings.
(c) To Seller’s actual knowledge, (i) the operating statements, income such representations and expense reports and all other contracts or documents required to be delivered to Purchaser warranties made pursuant to this Agreement are true, correct and complete copies; and (iiSection 3(b) all contracts or documents required to be delivered to Purchaser pursuant to this Agreement are in full force and effect, without material default by any party and without any right of set-off except as disclosed in writing at the time of such delivery.
(d) There is no master lease of the Property to any affiliate of Seller, or if such master lease exists, Seller shall cause such master lease to be terminated at Closing without Purchaser paying any termination fee. The Rent Roll attached hereto as Exhibit B is true, correct and complete in all material respects as of the date set forth on the Rent Roll. As of the Closing, the Rent Roll delivered at the Closing will be true, correct and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default by any party and without any right of setoff, except as expressly provided by the terms of such Leases or as disclosed on the Rent Roll attached hereto. The copies of the Leases and other agreements with the tenants under the Leases (the “Tenants”) delivered to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating to the Real Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real Property.
(e) Exhibit J attached hereto is a true and complete schedule of all of the Contracts (as hereinafter defined in Section 7), true, complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy of the management agreement currently in effect with respect to the Property. To Seller’s actual knowledge, the Contracts are in full force and effect, without material default by any party and without any claims made for the right of setoff, except as expressly provided by the terms of such Contracts or as disclosed to Purchaser in writing at the time of such delivery. The Contracts constitute the entire agreements with such vendors relating to the Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excluding, however, the Leases and Permitted Encumbrances) affecting the Property which will survive the ClosingMortgage Loan.
(f) At the Closing, there will be no outstanding contracts made by Seller for the construction or repair of any improvements to the Improvements which have not been fully paid for, and Seller shall cause to be discharged all mechanics’ or materialmen’s liens arising from any labor or materials furnished to the Improvements prior to the Closing.
(g) Except as set forth in Exhibit K attached hereto, there are no pending or, to Seller’s actual knowledge (without any duty of inquiry or investigation), threatened legal proceedings or actions of any kind or character affecting the Property or Seller’s interest therein, including, without limitation, condemnation proceedings.
(h) Seller has not received any actual written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or the Property relating in any way to a Release or compliance with Environmental Laws. For purposes of this Agreement, the phrase “Environmental Laws” shall mean any federal, state or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materials, or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 00
Appears in 3 contracts
Samples: Mortgage Loan Purchase Agreement (Citigroup Commercial Mortgage Trust 2006-C5), Mortgage Loan Purchase Agreement (Citigroup Commercial Mortgage Trust 2007-C6), Mortgage Loan Purchase Agreement (CD 2007-Cd4 Commercial Mortgage Trust)
Representations, Warranties and Covenants of Seller. (a) The Seller hereby represents, represents and warrants to and covenants to Purchaser that with the following matters are true and correct Purchaser, as of the execution of this Agreement and will also be true and correct as of the Closingdate hereof, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx Xxxxxxxxxthat:
(ai) The Seller is a statutory trust corporation duly formed and organized, validly existing and in good standing under the laws of the State of Delaware. California and the Seller has taken all necessary corporate action to authorize the execution, delivery and performance of this Agreement by it, and has the power and authority to execute, deliver and perform this Agreement and all transactions contemplated hereby.
(ii) This Agreement has been, been duly and all the documents executed by Seller which are to be delivered to Purchaser at the Closing will be, duly validly authorized, executed and delivered by Seller the Seller, all requisite action by the Seller's directors and will be legalofficers has been taken in connection therewith, valid and (assuming the due authorization, execution and delivery hereof by the Purchaser) this Agreement constitutes the valid, legal and binding obligations agreement of Seller the Seller, enforceable against the Seller in accordance with their respective terms (its terms, except to the extent that as such enforcement may be limited by applicable (A) laws relating to bankruptcy, insolvency, moratorium and fraudulent transfer, reorganization, receivership, conservatorship or moratorium, (B) other principles laws relating to or limiting affecting the right rights of contracting parties creditors generally, or (C) general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law), will be sufficient to convey title .
(if they purport to do soiii) The execution and delivery of this Agreement by the Seller and the Seller's performance and compliance with the terms of this Agreement will not (A) violate the Seller's certificate of incorporation or bylaws, (B) violate any provisions law or regulation or any administrative decree or order to which it is subject if compliance therewith is necessary (1) to ensure the enforceability of this Agreement or (2) for the Seller to perform its duties and obligations under this Agreement, or (C) constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material contract, agreement or other instrument to which the Seller is a party or to by which the Property or Seller is bound, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or materially and adversely affect its performance hereunder.
(iv) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or other governmental agency or body, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or materially and adversely affect its performance hereunder.
(v) The Seller is not a party to or bound by any agreement or instrument or subject to any certificate of incorporation, bylaws or bound. Subject any other corporate restriction or any judgment, order, writ, injunction, decree, law or regulation that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the ability of the Seller to perform its obligations under this Agreement or that requires the consent of any third person to the satisfaction of Section 8(a)(i) below, no consent, waiver or approval by any third party is required in connection with the execution and delivery by Seller of this Agreement or the performance by the Seller of its obligations under this Agreement (except to the extent such consent has been obtained).
(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 or the consummation of the transactions contemplated by this Agreement except as have previously been obtained, and no bulk sale law applies to such transactions.
(vii) None of the sale of the Mortgage Loans by the Seller, the transfer of the Mortgage Loans to the Trustee, and the execution, delivery or performance of this Agreement by the Seller, results or will result in the creation or imposition of any lien on any of the Seller's assets or property that would have a material adverse effect upon the Seller's ability to perform its duties and obligations under this Agreement or materially impair the ability of the Purchaser to be performed realize on the Mortgage Loans.
(viii) There is no action, suit, proceeding or investigation pending or to the knowledge of the Seller, threatened against the Seller in any court or by or before any other governmental agency or instrumentality which would, in the Seller's good faith and reasonable judgment, prohibit its entering into this Agreement or materially and adversely affect the validity of this Agreement or the performance by the Seller of its obligations under this Agreement.
(bix) Except Under generally accepted accounting principles ("GAAP") and for federal income tax purposes, the Seller will report the transfer of the Mortgage Loans to the Purchaser as set forth on Exhibit M attached hereto, a sale of the Mortgage Loans to the Purchaser in exchange for consideration consisting of a cash amount equal to the Purchase Consideration. The consideration received by the Seller has not received from any governmental authority written noticeupon the sale of the Mortgage Loans to the Purchaser will constitute at least reasonably equivalent value and fair consideration for the Mortgage Loans. The Seller will be solvent at all relevant times prior to, and Seller has no actual knowledge (without any duty will not be rendered insolvent by, the sale of inquiry or investigation) of any violation of any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable the Mortgage Loans to the Property, or any part thereof, that will Purchaser. The Seller is not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change selling the Mortgage Loans to the zoning classification Purchaser with any intent to hinder, delay or defraud any proceedings to widen or realign any streets or highways adjacent to of the Property or creditors of any condemnation proceedingsthe Seller.
(cx) To Seller’s actual knowledge, (i) The Prospectus Supplement contains all the operating statements, income and expense reports and all other contracts or documents information that is required to be delivered to Purchaser provided in respect of the Seller (that arise from its role as "sponsor" (within the meaning of Regulation AB)), the Mortgage Loans, the related Mortgagors and the related Mortgaged Properties pursuant to this Agreement are true, correct and complete copies; and (ii) all contracts or documents required to be delivered to Purchaser pursuant to this Agreement are in full force and effect, without material default by any party and without any right of set-off except as disclosed in writing at the time of such delivery.
(d) There is no master lease of the Property to any affiliate of Seller, or if such master lease exists, Seller shall cause such master lease to be terminated at Closing without Purchaser paying any termination fee. The Rent Roll attached hereto as Exhibit B is true, correct and complete in all material respects as of the date set forth on the Rent Roll. As of the Closing, the Rent Roll delivered at the Closing will be true, correct and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default by any party and without any right of setoff, except as expressly provided by the terms of such Leases or as disclosed on the Rent Roll attached hereto. The copies of the Leases and other agreements with the tenants under the Leases (the “Tenants”) delivered to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating to the Real Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real Property.
(e) Exhibit J attached hereto is a true and complete schedule of all of the Contracts (as hereinafter defined in Section 7), true, complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy of the management agreement currently in effect with respect to the Property. To Seller’s actual knowledge, the Contracts are in full force and effect, without material default by any party and without any claims made for the right of setoff, except as expressly provided by the terms of such Contracts or as disclosed to Purchaser in writing at the time of such delivery. The Contracts constitute the entire agreements with such vendors relating to the Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excluding, however, the Leases and Permitted Encumbrances) affecting the Property which will survive the Closing.
(f) At the Closing, there will be no outstanding contracts made by Seller for the construction or repair of any improvements to the Improvements which have not been fully paid for, and Seller shall cause to be discharged all mechanics’ or materialmen’s liens arising from any labor or materials furnished to the Improvements prior to the Closing.
(g) Except as set forth in Exhibit K attached hereto, there are no pending or, to Seller’s actual knowledge (without any duty of inquiry or investigation), threatened legal proceedings or actions of any kind or character affecting the Property or Seller’s interest therein, including, without limitation, condemnation proceedings.
(h) Seller has not received any actual written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or the Property relating in any way to a Release or compliance with Environmental LawsRegulation AB. For purposes purpose of this Agreement, the phrase “Environmental Laws” "Regulation AB" shall mean any federalSubpart 229.1100 - Asset Backed Securities (Regulation AB), state 17 C.F.R. ss.ss.229.1100-229.1123, as such may be amended from time to time, and subject to such clarification and interpretation as have been provided by the Commission in the adopting release (Asset-Backed Securities, Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materialsby the staff of the Commission, or as may be provided by the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 00Commission or its staff from time to time.
Appears in 3 contracts
Samples: Mortgage Loan Purchase Agreement (ML-CFC Commercial Mortgage Trust 2007-6), Mortgage Loan Purchase Agreement (ML-CFC Commercial Mortgage Trust 2006-4), Mortgage Loan Purchase Agreement (ML-CFC Commercial Mortgage Trust 2006-3)
Representations, Warranties and Covenants of Seller. (a) The Seller hereby represents, represents and warrants to and covenants to Purchaser that with the following matters are true and correct Purchaser, as of the execution of this Agreement and will also be true and correct as of the Closingdate hereof, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx Xxxxxxxxxthat:
(ai) The Seller is a statutory trust corporation duly formed and organized, validly existing and in good standing under the laws of the State of Delaware. New York, is duly qualified as a foreign organization in good standing in all jurisdictions to the extent such qualification is necessary to hold and sell the Mortgage Loans or otherwise comply with its obligations under this Agreement, except where the failure to be so qualified would not have a material adverse effect on its ability to perform its obligations hereunder, and possesses all requisite authority and power to carry on its business as currently conducted by it and to execute, deliver and comply with its obligations under the terms of this Agreement.
(ii) This Agreement has been, been duly and all the documents executed by Seller which are to be delivered to Purchaser at the Closing will be, duly validly authorized, executed and delivered by the Seller and, assuming due authorization, execution and will be delivery hereof by the Purchaser, constitutes a legal, valid and binding obligations obligation of Seller the Seller, enforceable against the Seller in accordance with their respective terms (its terms, except to the extent that as such enforcement may be limited by applicable (A) bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws affecting the enforcement of creditors' rights in general, and other (B) general equity principles relating to (regardless of whether such enforcement is considered in a proceeding in equity or limiting at law).
(iii) The execution and delivery of this Agreement by the right Seller and the Seller's performance and compliance with the terms of contracting parties generally), will be sufficient to convey title (if they purport to do so) and this Agreement will not (A) violate the Seller's organizational documents, (B) violate any provisions law or regulation or any administrative decree or order to which the Seller is subject or (C) constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material contract, agreement or other instrument to which the Seller is a party or to by which the Property or Seller is subject bound.
(iv) The Seller is not in default with respect to any order or bound. Subject decree of any court or any order, regulation or demand of any federal, state, municipal or other governmental agency or body, which default would reasonably be expected to have consequences that would, in the satisfaction Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of Section 8(a)(ithe Seller or its properties or have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect its performance hereunder.
(v) below, no consent, waiver The Seller is not a party to or approval bound by any agreement or instrument or subject to any organizational document or any other corporate restriction or any judgment, order, writ, injunction, decree, law or regulation that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the ability of the Seller to perform its obligations under this Agreement or that requires the consent of any third party is required in connection with person to the execution and delivery by Seller of this Agreement by the Seller or the performance by the Seller of the its obligations to be performed by Seller under this Agreement.
(vi) Except for the recordation and/or filing of assignments and other transfer documents with respect to the Mortgage Loans (other than the Non-Serviced Trust Loans), as contemplated by Section 2(d), no consent, approval, authorization or order of, registration or filing with, or notice to, 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; and no bulk sale law applies to such transactions.
(vii) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller that would, in the Seller's good faith and reasonable judgment, prohibit its entering into this Agreement or materially and adversely affect the performance by the Seller of its obligations under this Agreement.
(viii) The Seller intends to treat the transfer of the Mortgage Loans to the Purchaser as a sale for accounting and tax purposes. In connection with the foregoing, the Seller shall cause all of its records to reflect such transfer as a sale (as opposed to a secured loan). The consideration received by the Seller upon the sale of the Mortgage Loans to the Purchaser will constitute at least reasonably equivalent value and fair consideration for the Mortgage Loans. The Seller will be solvent at all relevant times prior to, and will not be rendered insolvent by, the sale of the Mortgage Loans to the Purchaser. The Seller is not selling the Mortgage Loans to the Purchaser with any intent to hinder, delay or defraud any of the creditors of the Seller. After giving effect to its transfer of the Mortgage Loans to the Purchaser, as provided herein, the value of the Seller's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Seller's debts and obligations, including contingent and unliquidated debts and obligations of the Seller, and the Seller will not be left with unreasonably small assets or capital with which to engage in and conduct its business. The Mortgage Loans do not constitute all or substantially all of the assets of the Seller. The Seller does not intend to, and does not believe that it will, incur debts or obligations beyond its ability to pay such debts and obligations as they mature.
(ix) No proceedings looking toward liquidation, dissolution or bankruptcy of the Seller are pending or contemplated.
(b) Except The Seller hereby makes, for the benefit of the Purchaser, with respect to each Mortgage Loan, as of the Closing Date or as of such other date expressly set forth therein, each of the representations and warranties set forth on Exhibit M B attached hereto, Seller has not received from any governmental authority written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any violation of any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable to the Property, or any part thereof, that will not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change to the zoning classification or any proceedings to widen or realign any streets or highways adjacent to the Property or of any condemnation proceedings.
(c) To Seller’s actual knowledge, (i) the operating statements, income and expense reports and all other contracts or documents required to be delivered to Purchaser pursuant to this Agreement are true, correct and complete copies; and (ii) all contracts or documents required to be delivered to Purchaser pursuant to this Agreement are in full force and effect, without material default by any party and without any right of set-off except as disclosed in writing at the time of such delivery.
(d) There is no master lease of the Property to any affiliate of Seller, or if such master lease exists, Seller shall cause such master lease to be terminated at Closing without Purchaser paying any termination fee. The Rent Roll attached hereto as Exhibit B is true, correct and complete in all material respects as of the date otherwise set forth on the Rent Roll. As of the Closing, the Rent Roll delivered at the Closing will be true, correct and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default by any party and without any right of setoff, except as expressly provided by the terms of such Leases or as disclosed on the Rent Roll Exhibit C attached hereto. The copies of the Leases and other agreements with the tenants under the Leases (the “Tenants”) delivered to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating to the Real Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real Property.
(e) Exhibit J attached hereto is a true and complete schedule of all of the Contracts (as hereinafter defined in Section 7), true, complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy of the management agreement currently in effect with respect to the Property. To Seller’s actual knowledge, the Contracts are in full force and effect, without material default by any party and without any claims made for the right of setoff, except as expressly provided by the terms of such Contracts or as disclosed to Purchaser in writing at the time of such delivery. The Contracts constitute the entire agreements with such vendors relating to the Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excluding, however, the Leases and Permitted Encumbrances) affecting the Property which will survive the Closing.
(f) At the Closing, there will be no outstanding contracts made by Seller for the construction or repair of any improvements to the Improvements which have not been fully paid for, and Seller shall cause to be discharged all mechanics’ or materialmen’s liens arising from any labor or materials furnished to the Improvements prior to the Closing.
(g) Except as set forth in Exhibit K attached hereto, there are no pending or, to Seller’s actual knowledge (without any duty of inquiry or investigation), threatened legal proceedings or actions of any kind or character affecting the Property or Seller’s interest therein, including, without limitation, condemnation proceedings.
(h) Seller has not received any actual written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or the Property relating in any way to a Release or compliance with Environmental Laws. For purposes of this Agreement, the phrase “Environmental Laws” shall mean any federal, state or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materials, or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 00
Appears in 3 contracts
Samples: Mortgage Loan Purchase Agreement (COBALT CMBS Commercial Mortgage Trust 2006-C1), Mortgage Loan Purchase Agreement (COBALT CMBS Commercial Mortgage Trust 2007-C3), Mortgage Loan Purchase Agreement (COBALT CMBS Commercial Mortgage Trust 2007-C2)
Representations, Warranties and Covenants of Seller. Seller hereby representsmakes the following representations, warrants warranties and covenants to Purchaser that the following matters are true and correct as of the execution of this Agreement and will also be true and correct as of the Closing, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx XxxxxxxxxBuyer:
(a) Seller is a statutory trust (check one) [□ limited liability company/□ partnership/□ corporation/□ person] [duly formed and organized, validly existing and in good standing under the laws of its respective state of incorporation or organization], is qualified to do business in the State of Delaware. This Agreement California and has beenthe legal power and authority to own and lease its properties, to carry on its business as now being conducted and has all the documents executed by Seller which are to be delivered to Purchaser at the Closing will benecessary authority, duly authorizedpermits and approvals, executed and delivered by Seller and will be legalincluding, valid and binding obligations of Seller enforceable against Seller in accordance with their respective terms (except to the extent that such enforcement may required, any FERC authorization, to enter into this Agreement and all Ancillary Documents to which it is a party and to carry out the transactions contemplated hereby and perform and carry out all covenants and obligations on its part to be limited performed under and pursuant to this Agreement and all Ancillary Documents to which it is a party.
(b) The execution, delivery and performance by applicable bankruptcySeller of this Agreement and all Ancillary Documents to which it is a party, insolvencyincluding the consummation of the transactions contemplated thereby and the fulfillment of and compliance with the provisions of this Agreement and all Ancillary Documents to which it is a party, moratorium have been duly authorized by all necessary action, and other principles relating to or limiting the right of contracting parties generally), will be sufficient to convey title (if they purport to do so) not and will not violate require any consent or approval other than those which have already been obtained.
(c) The execution and delivery of this Agreement and all Ancillary Documents to which Seller is a party, the consummation of the transactions contemplated hereby and thereby and the fulfillment of and compliance with the provisions of this Agreement and such Ancillary Documents, do not and will not conflict with or constitute a breach of or a default under, any of the terms, conditions or provisions of any material Requirement of Law, or any organizational documents or any other agreement or instrument to which Seller is a party or to by which it or any of its property is bound or result in or require the Property creation or Seller is subject or bound. Subject to the satisfaction imposition of Section 8(a)(i) below, no consent, waiver or approval by any third party is required in connection with the execution and delivery by Seller of this Agreement or the performance by Seller Lien upon any of the obligations to be performed by Seller under this Agreement.
(b) Except as set forth on Exhibit M attached hereto, Seller has not received from any governmental authority written noticeproperties or assets of Seller, and Seller has no actual knowledge (without any duty obtained or shall timely obtain all Permits required for the performance of inquiry or investigation) its obligations hereunder and there under and operation of any violation the Facility in accordance with the requirements of any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable to the Property, or any part thereof, that will not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change to the zoning classification or any proceedings to widen or realign any streets or highways adjacent to the Property or of any condemnation proceedings.
(c) To Seller’s actual knowledge, (i) the operating statements, income and expense reports this Agreement and all other contracts or documents required Ancillary Documents to be delivered to Purchaser pursuant to this Agreement are true, correct and complete copies; and (ii) all contracts or documents required to be delivered to Purchaser pursuant to this Agreement are in full force and effect, without material default by any party and without any right of set-off except as disclosed in writing at the time of such deliverywhich it is a party.
(d) There This Agreement and all Ancillary Documents to which Seller is no master lease a party constitute the legal, valid and binding obligation of the Property to any affiliate of Seller, or if such master lease exists, Seller shall cause such master lease to be terminated at Closing without Purchaser paying any termination fee. The Rent Roll attached hereto as Exhibit B which is true, correct and complete party thereto enforceable in all material respects as of the date set forth on the Rent Roll. As of the Closing, the Rent Roll delivered at the Closing will be true, correct and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default by any party and without any right of setoffaccordance with its terms, except as expressly provided such enforceability may be limited by the terms of such Leases bankruptcy, insolvency, reorganization or as disclosed on the Rent Roll attached hereto. The copies of the Leases and other agreements with the tenants under the Leases (the “Tenants”) delivered to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants similar laws relating to the Real Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real Propertyenforcement of creditors’ rights generally or by general equitable principles, regardless of whether such enforceability is considered in a proceeding in equity or at law.
(e) Exhibit J attached hereto There is no pending, or to the knowledge of Seller, threatened action or proceeding affecting Seller before any Governmental Authority, which purports to affect the legality, validity or enforceability of this Agreement or any Ancillary Documents to which it is a true and complete schedule of all of the Contracts (as hereinafter defined in Section 7), true, complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy of the management agreement currently in effect with respect to the Property. To Seller’s actual knowledge, the Contracts are in full force and effect, without material default by any party and without any claims made for the right of setoff, except as expressly provided by the terms of such Contracts or as disclosed to Purchaser in writing at the time of such delivery. The Contracts constitute the entire agreements with such vendors relating to the Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excluding, however, the Leases and Permitted Encumbrances) affecting the Property which will survive the Closingparty.
(f) At the Closing, there will be no outstanding contracts made by Seller for the construction or repair is not in violation of any improvements Requirement of Law, which violations, individually or in the aggregate, would reasonably be expected to result in a material adverse effect on the Improvements business, assets, operations, condition (financial or otherwise) or prospects of Seller, or the ability of Seller to perform any of its obligations under this Agreement or any Ancillary Documents to which have not been fully paid for, and Seller shall cause to be discharged all mechanics’ or materialmen’s liens arising from any labor or materials furnished to the Improvements prior to the Closingit is a party.
(g) Except as set forth The CEQA authorizations or other Permits required to construct, maintain or operate the Facility and for the production, sale and delivery of Energy and Environmental Attributes in Exhibit K attached hereto, there are no pending or, to Seller’s actual knowledge (without any duty accordance with the requirements of inquiry or investigation), threatened legal proceedings or actions this Agreement and all Ancillary Documents and all applicable Requirements of any kind or character affecting Law will be timely obtained in the Property or Seller’s interest therein, including, without limitation, condemnation proceedingsordinary course of business.
(h) Seller owns or possesses, or will own or possess in a timely manner, all patents, rights to patents, trademarks, copyrights and licenses necessary for the performance by Seller of this Agreement and all Ancillary Documents to which it is a party and the transactions contemplated thereby, without any conflict with the rights of others.
(i) At all times after the Effective Date, Seller shall have Site Control. Seller shall provide Buyer with prompt notice of any change in the status of Seller’s Site Control.
(j) Neither Seller nor, to Seller’s knowledge, the owner of the Site has not received participated in or submitted any actual written noticeclaim for receipt of funds under any net metering program or ratepayer-funded on-site generation incentives for the Facility. Seller waives all claims for eligibility for, and will not submit any claim for receipt of funds under, any net metering program or ratepayer-funded on-site generation incentives for the Facility.
(k) If Seller has no actual knowledge (without any duty of inquiry is operating a Carport Facility pursuit to this Agreement, Seller shall maintain or investigation) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or cause to be maintained required EVSE throughout the Property relating in any way to a Release or compliance with Environmental Laws. For purposes term of this Agreement, the phrase “Environmental Laws” shall mean any federal, state or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materials, or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 00.
Appears in 3 contracts
Samples: Power Purchase Agreement, Power Purchase Agreement, Power Purchase Agreement
Representations, Warranties and Covenants of Seller. Seller hereby represents, represents and warrants and covenants to Purchaser that the following matters are true and correct as of the execution of this Agreement and will also be true and correct as of the Closing, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx Xxxxxxxxxfollows:
(a) The Secretary of Seller is a statutory trust duly formed has the requisite power and validly existing authority to execute, deliver and perform his obligations under this Agreement, having received written authorization to proceed with the laws sale from the President of the State of DelawareSeller. This Agreement has been, and all constitutes the documents executed by Seller which are to be delivered to Purchaser at the Closing will be, duly authorized, executed and delivered by Seller and will be legal, valid and binding obligations obligation of Seller enforceable against Seller in accordance with their respective terms its terms.
(except to the extent that such enforcement may be limited by applicable bankruptcyb) The execution, insolvency, moratorium delivery and other principles relating to or limiting the right performance of contracting parties generally), will be sufficient to convey title (if they purport to do so) this Agreement does not and will not (i) violate any provisions law, regulation, judgment, decree, order or other directive of any material court or governmental agency applicable to or binding upon Seller, or (ii) breach or constitute a default under any agreement to which Seller is a party or to by which the Property or Seller is subject bound.
(c) Seller is the owner of the Shares of the Purchaser being sold, assigned, bargained and conveyed pursuant hereto, free from any security interest, pledge, option, equity, claim or boundother right or interest of any kind. Subject Upon the sale to Purchaser, Purchaser will acquire the Shares being transferred, free from any security interest, pledge, option, equity, claim or other right or interest of any kind.
(d) Seller has received and carefully reviewed Purchaser’s filings with the Securities and Exchange Commission and Purchaser’s press releases posted on Purchaser’s website (the filings and press releases, the “Purchaser Disclosure”) and has had full access to Purchaser’s other directors and executives for purposes of discussion the Company’s condition, operations and plans. Seller acknowledges that no oral representations have been made or information furnished to Seller or Seller’s representatives that are in any way inconsistent with the Purchaser Disclosure. Seller confirms that no representations, warranties, or other agreements (whether express or implied) have been made by Purchaser with respect to the satisfaction of Section 8(a)(i) belowtransactions contemplated hereby, no consentexcept for those representations, waiver or approval by any third party is required warranties, and agreements that are specifically set forth in connection with the execution and delivery by Seller of this Agreement or the performance by Seller of the obligations to be performed by Seller under this Agreement.
(be) Except as set forth on Exhibit M attached heretoSeller, Seller has not received from any governmental authority written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any violation of any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable to the Propertyextent necessary, or any part thereof, that will not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change to the zoning classification or any proceedings to widen or realign any streets or highways adjacent to the Property or of any condemnation proceedings.
(c) To Seller’s actual knowledge, (i) the operating statements, income and expense reports and all other contracts or documents required to be delivered to Purchaser pursuant to this Agreement are true, correct and complete copies; and (ii) all contracts or documents required to be delivered to Purchaser pursuant to this Agreement are in full force and effectshall, without material default additional consideration, take such additional or further actions and execute such other or further documents as may be reasonably requested by any party and without any right of set-off except as disclosed in writing at the time of such delivery.
(d) There is no master lease of the Property to any affiliate of Seller, or if such master lease exists, Seller shall cause such master lease to be terminated at Closing without Purchaser paying any termination fee. The Rent Roll attached hereto as Exhibit B is true, correct and complete in all material respects as of the date set forth on the Rent Roll. As of the Closing, the Rent Roll delivered at the Closing will be true, correct and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default by any party and without any right of setoff, except as expressly provided by the terms of such Leases or as disclosed on the Rent Roll attached hereto. The copies of the Leases and other agreements with the tenants under the Leases (the “Tenants”) delivered to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating to the Real Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real Property.
(e) Exhibit J attached hereto is a true and complete schedule of all of the Contracts (as hereinafter defined in Section 7), true, complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy of the management agreement currently in effect with respect to the Property. To Seller’s actual knowledge, the Contracts are in full force and effect, without material default by any party and without any claims made for the right of setoff, except as expressly provided by the terms of such Contracts or as disclosed to Purchaser in writing at order to evidence, confirm or carry out the time of such delivery. The Contracts constitute the entire agreements with such vendors relating to the Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excluding, however, the Leases and Permitted Encumbrances) affecting the Property which will survive the Closingtransactions contemplated hereby.
(f) At the Closing, there will be no outstanding contracts made by Seller for the construction or repair of any improvements to the Improvements which have not been fully paid for, and Seller shall cause to be discharged all mechanics’ or materialmen’s liens arising from any labor or materials furnished to the Improvements prior to the Closing.
(g) Except as set forth in Exhibit K attached hereto, there are no pending or, to Seller’s actual knowledge (without any duty of inquiry or investigation), threatened legal proceedings or actions of any kind or character affecting the Property or Seller’s interest therein, including, without limitation, condemnation proceedings.
(h) Seller has not received any actual written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or the Property relating in any way to a Release or compliance with Environmental Laws. For purposes of this Agreement, the phrase “Environmental Laws” shall mean any federal, state or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materials, or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 00
Appears in 3 contracts
Samples: Shares Purchase Agreement (Preformed Line Products Co), Shares Purchase Agreement (Preformed Line Products Co), Shares Purchase Agreement (Preformed Line Products Co)
Representations, Warranties and Covenants of Seller. (a) The Seller hereby represents, represents and warrants to and covenants to Purchaser that with the following matters are true and correct Purchaser, as of the execution of this Agreement and will also be true and correct as of the Closingdate hereof, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx Xxxxxxxxxthat:
(ai) The Seller is a statutory trust corporation duly formed and organized, validly existing and in good standing under the laws of the State of Delaware. Delaware and the Seller has taken all necessary action to authorize the execution, delivery and performance of this Agreement by it, and has the power and authority to execute, deliver and perform this Agreement and all transactions contemplated hereby.
(ii) This Agreement has been, been duly and all the documents executed by Seller which are to be delivered to Purchaser at the Closing will be, duly validly authorized, executed and delivered by Seller the Seller, all requisite action by the Seller's directors and will be legalofficers has been taken in connection therewith, valid and (assuming the due authorization, execution and delivery hereof by the Purchaser) this Agreement constitutes the valid, legal and binding obligations agreement of Seller the Seller, enforceable against the Seller in accordance with their respective terms (its terms, except to the extent that as such enforcement may be limited by applicable (A) laws relating to bankruptcy, insolvency, moratorium and fraudulent transfer, reorganization, receivership, conservatorship or moratorium, (B) other principles laws relating to or limiting affecting the right rights of contracting parties creditors generally, or (C) general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law), will be sufficient to convey title .
(if they purport to do soiii) The execution and delivery of this Agreement by the Seller and the Seller's performance and compliance with the terms of this Agreement will not (A) violate the Seller's certificate of incorporation or bylaws, (B) violate any provisions law or regulation or any administrative decree or order to which it is subject or (C) constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material contract, agreement or other instrument to which the Seller is a party or to by which the Property or Seller is bound, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or materially and adversely affect its performance hereunder.
(iv) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or other governmental agency or body, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or materially and adversely affect its performance hereunder.
(v) The Seller is not a party to or bound by any agreement or instrument or subject to any certificate of incorporation, bylaws or bound. Subject any other corporate restriction or any judgment, order, writ, injunction, decree, law or regulation that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the ability of the Seller to perform its obligations under this Agreement or that requires the consent of any third person to the satisfaction of Section 8(a)(i) below, no consent, waiver or approval by any third party is required in connection with the execution and delivery by Seller of this Agreement or the performance by the Seller of its obligations under this Agreement (except to the extent such consent has been obtained).
(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 or the consummation of the transactions contemplated by this Agreement except as have previously been obtained, and no bulk sale law applies to such transactions.
(vii) None of the sale of the Mortgage Loans by the Seller, the transfer of the Mortgage Loans to the Trustee, and the execution, delivery or performance of this Agreement by the Seller, results or will result in the creation or imposition of any lien on any of the Seller's assets or property that would have a material adverse effect upon the Seller's ability to perform its duties and obligations under this Agreement or materially impair the ability of the Purchaser to be performed realize on the Mortgage Loans.
(viii) There is no action, suit, proceeding or investigation pending or to the knowledge of the Seller, threatened against the Seller in any court or by or before any other governmental agency or instrumentality which would, in the Seller's good faith and reasonable judgment, prohibit its entering into this Agreement or materially and adversely affect the validity of this Agreement or the performance by the Seller of its obligations under this Agreement.
(ix) Under generally accepted accounting principles ("GAAP") and for federal income tax purposes, the Seller will report the transfer of the Mortgage Loans to the Purchaser as a sale of the Mortgage Loans to the Purchaser in exchange for consideration consisting of a cash amount equal to the Purchase Consideration. The consideration received by the Seller upon the sale of the Mortgage Loans to the Purchaser will constitute at least reasonably equivalent value and fair consideration for the Mortgage Loans. The Seller will be solvent at all relevant times prior to, and will not be rendered insolvent by, the sale of the Mortgage Loans to the Purchaser. The Seller is not selling the Mortgage Loans to the Purchaser with any intent to hinder, delay or defraud any of the creditors of the Seller.
(x) The Prospectus Supplement contains all the information that is required to be provided in respect of the Seller (that arise from its role as "sponsor" (within the meaning of Regulation AB)), the Mortgage Loans, the related Mortgagors and the related Mortgaged Properties pursuant to Regulation AB.
(b) Except The Seller hereby makes the representations and warranties contained in Schedule I hereto for the benefit of the Purchaser and the Trustee for the benefit of the Certificateholders as of the Closing Date (unless a different date is specified therein), with respect to (and solely with respect to) each Mortgage Loan, subject, however, to the exceptions set forth on Exhibit M attached hereto, Seller has not received from any governmental authority written notice, and Seller has no actual knowledge (without any duty Annex A to Schedule I of inquiry or investigation) of any violation of any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable to the Property, or any part thereof, that will not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change to the zoning classification or any proceedings to widen or realign any streets or highways adjacent to the Property or of any condemnation proceedingsthis Agreement.
(c) To Seller’s actual knowledgeIf the Seller receives written notice of a Document Defect or a Breach relating to a Mortgage Loan pursuant to Section 2.03(a) of the Pooling and Servicing Agreement, then the Seller shall, not later than 90 days from receipt of such notice (or, in the case of a Document Defect or Breach relating to a Mortgage Loan not being a "qualified mortgage" within the meaning of the REMIC Provisions (a "Qualified Mortgage"), not later than 90 days from any party to the Pooling and Servicing Agreement discovering such Document Defect or Breach, provided the Seller receives such notice in a timely manner), if such Document Defect or Breach materially and adversely affects the value of the related Mortgage Loan or the interests of the Certificateholders therein, cure such Document Defect or Breach, as the case may be, in all material respects, which shall include payment of losses and any Additional Trust Fund Expenses associated therewith or, if such Document Defect or Breach (other than omissions due solely to a document not having been returned by the related recording office) cannot be cured within such 90-day period, (i) repurchase the operating statementsaffected Mortgage Loan (which, income for the purposes of this clause (i), shall include an REO Loan) at the applicable Purchase Price (as defined in the Pooling and expense reports and all other contracts Servicing Agreement) not later than the end of such 90-day period or documents required to be delivered to Purchaser pursuant to this Agreement are true, correct and complete copies; and (ii) all contracts substitute a Qualified Substitute Mortgage Loan for such affected Mortgage Loan (which, for purposes of this clause (ii), shall include an REO Loan) not later than the end of such 90-day period (and in no event later than the second anniversary of the Closing Date) and pay the applicable Master Servicer for deposit into its Collection Account any Substitution Shortfall Amount in connection therewith; provided, however, that, unless the Document Defect or documents required Breach would cause the Mortgage Loan not to be a Qualified Mortgage, if such Document Defect or Breach is capable of being cured but not within such 90-day period and the Seller has commenced and is diligently proceeding with the cure of such Document Defect or Breach within such 90-day period, the Seller shall have an additional 90 days to complete such cure (or, failing such cure, to repurchase or substitute the related Mortgage Loan (which, for purposes of such repurchase or substitution, shall include an REO Loan)); and provided, further, that with respect to such additional 90-day period, the Seller shall have delivered an officer's certificate to Purchaser pursuant the Certificate Administrator setting forth the reason(s) such Document Defect or Breach is not capable of being cured within the initial 90-day period and what actions the Seller is pursuing in connection with the cure thereof and stating that the Seller anticipates that such Document Defect or Breach will be cured within the additional 90-day period; and provided, further, that no Document Defect (other than with respect to this Agreement are the Specially Designated Mortgage Loan Documents) shall be considered to materially and adversely affect the interests of the Certificateholders or the value of the related Mortgage Loan unless the document with respect to which the Document Defect exists is required in full force and effectconnection with an imminent enforcement of the mortgagee's rights or remedies under the related Mortgage Loan, without material default defending any claim asserted by any Mortgagor or third party with respect to the Mortgage Loan, establishing the validity or priority of any lien or any collateral securing the Mortgage Loan or for any immediate servicing obligations.
(1) the weighted average debt service coverage ratio for all the remaining Crossed Loans for the four calendar quarters immediately preceding such repurchase or substitution is not less than the weighted average debt service coverage ratio for all such Crossed Loans, including the affected Crossed Loan, for the four calendar quarters immediately preceding such repurchase or substitution, and without any right of set(2) the weighted average loan to-off except as disclosed in writing value ratio for the remaining Crossed Loans determined at the time of such delivery.
(d) There is no master lease repurchase or substitution based upon an appraisal obtained by the Special Servicer at the expense of the Property to any affiliate of Seller, or if such master lease exists, Seller shall cause not be greater than the weighted average loan-to-value ratio for all such master lease to be terminated at Closing without Purchaser paying any termination fee. The Rent Roll attached hereto as Exhibit B is trueCrossed Loans, correct and complete in all material respects as of including the date set forth on the Rent Roll. As of the Closing, the Rent Roll delivered at the Closing will be true, correct and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default by any party and without any right of setoff, except as expressly provided by the terms of such Leases or as disclosed on the Rent Roll attached hereto. The copies of the Leases and other agreements with the tenants under the Leases (the “Tenants”) delivered to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating to the Real Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real Property.
(e) Exhibit J attached hereto is a true and complete schedule of all of the Contracts (as hereinafter defined in Section 7), true, complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy of the management agreement currently in effect with respect to the Property. To Seller’s actual knowledge, the Contracts are in full force and effect, without material default by any party and without any claims made for the right of setoff, except as expressly provided by the terms of such Contracts or as disclosed to Purchaser in writing affected Crossed Loan determined at the time of repurchase or substitution based upon an appraisal obtained by the Special Servicer at the expense of the Seller; provided, that if such deliverydebt service coverage and loan-to-value criteria are satisfied, any other Crossed Loan (that is not the Crossed Loan directly affected by the subject Document Defect or Breach), shall be released from its cross-collateralization and cross-default provision so long as such Crossed Loan (that is not the Crossed Loan directly affected by the subject Document Defect or Breach) is held in the Trust Fund; and provided, further, that the repurchase or replacement of less than all such Crossed Loans and the release of any Crossed Loan from a cross-collateralization and cross-default provision shall be further subject to the delivery by the Seller to the Certificate Administrator, at the expense of the Seller, of an Opinion of Counsel to the effect that such release would not cause either of REMIC I or REMIC II to fail to qualify as a REMIC under the Code or result in the imposition of any tax on "prohibited transactions" or "contributions" after the Startup Day under the REMIC Provisions. The Contracts constitute In the entire agreements with event that one or more of such vendors other Crossed Loans satisfy the aforementioned criteria, the Seller may elect either to repurchase or substitute for only the affected Crossed Loan as to which the related Document Defect or Breach exists or to repurchase or substitute for all of the Crossed Loans in the related Crossed Loan Group. All documentation relating to the Propertytermination of the cross-collateralization provisions of a Crossed Loan being repurchased shall be prepared at the expense of the Seller and, have not been materially amendedwhere required, modified with the consent of the related Mortgagor. For a period of two years from the Closing Date, so long as there remains any Mortgage File relating to a Mortgage Loan as to which there is any uncured Document Defect or supplementedBreach known to the Seller, except for the Seller shall provide, once every ninety days, the officer's certificate to the Certificate Administrator described above as to the reason(s) such amendments, modifications Document Defect or Breach remains uncured and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excludingthe actions being taken to pursue cure; provided, however, that, without limiting the Leases effect of the foregoing provisions of this Section 3(c), if such Document Defect or Breach shall materially and Permitted Encumbrances) affecting adversely affect the Property which will survive value of such Mortgage Loan or the Closing.
interests of the holders of the Certificates therein (f) At the Closing, there will be no outstanding contracts made by Seller for the construction or repair of any improvements subject to the Improvements which have not been fully paid forsecond and third provisos in the sole sentence of the preceding paragraph), and the Seller shall cause to be discharged in all mechanics’ cases on or materialmen’s liens arising from any labor or materials furnished to the Improvements prior to the Closing.
second anniversary of the Closing Date either cause such Document Defect or Breach to be cured or repurchase or substitute for the affected Mortgage Loan (g) Except for the avoidance of doubt, the foregoing two-year period shall not be deemed to be a time limitation on Seller's right to cure a Document Defect or Breach as set forth in Exhibit K attached hereto, there are no pending or, this Section 3). The delivery of a commitment to Seller’s issue a policy of lender's title insurance as described in representation 8 set forth on Schedule I hereto in lieu of the delivery of the actual knowledge (without policy of lender's title insurance shall not be considered a Document Defect or Breach with respect to any duty Mortgage File if such actual policy of inquiry or investigation), threatened legal proceedings or actions of any kind or character affecting insurance is delivered to the Property or Seller’s interest therein, including, without limitation, condemnation proceedingsCustodian not later than the 180th day following the Closing Date.
(h) Seller has not received any actual written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or the Property relating in any way to a Release or compliance with Environmental Laws. For purposes of this Agreement, the phrase “Environmental Laws” shall mean any federal, state or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materials, or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 00
Appears in 3 contracts
Samples: Mortgage Loan Purchase Agreement (Merrill Lynch Mortgage Trust 2006-C1), Mortgage Loan Purchase Agreement (Merrill Lynch Mortgage Trust 2006-C1), Mortgage Loan Purchase Agreement (ML-CFC Commercial Mortgage Trust 2007-5)
Representations, Warranties and Covenants of Seller. A. Seller hereby represents, represents and warrants and covenants to Purchaser that the following matters are true which representations and correct warranties shall be deemed made by Seller to Purchaser also as of the execution of this Agreement and will also be true and correct as of the Closing, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx XxxxxxxxxClosing Date that:
(a1) To the best of Seller's knowledge there are no parties in possession of any portion of the Property as lessees except tenants;
(2) Seller is a statutory trust duly formed authorized and validly existing under empowered to sell the laws of the State of Delaware. This Agreement has been, and all the documents executed by Seller which are to be delivered to Purchaser at the Closing will be, duly authorized, executed and delivered by Seller and will be legal, valid and binding Property;
(3) All obligations of Seller enforceable against Seller in accordance with their respective terms (except to arising from the extent that such enforcement may be limited by applicable bankruptcy, insolvency, moratorium ownership and other principles relating to or limiting the right of contracting parties generally), will be sufficient to convey title (if they purport to do so) and will not violate any provisions of any material agreement to which Seller is a party or to which the Property or Seller is subject or bound. Subject to the satisfaction of Section 8(a)(i) below, no consent, waiver or approval by any third party is required in connection with the execution and delivery by Seller of this Agreement or the performance by Seller of the obligations to be performed by Seller under this Agreement.
(b) Except as set forth on Exhibit M attached hereto, Seller has not received from any governmental authority written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any violation of any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable to the Property, or any part thereof, that will not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change to the zoning classification or any proceedings to widen or realign any streets or highways adjacent to the Property or of any condemnation proceedings.
(c) To Seller’s actual knowledge, (i) the operating statements, income and expense reports and all other contracts or documents required to be delivered to Purchaser pursuant to this Agreement are true, correct and complete copies; and (ii) all contracts or documents required to be delivered to Purchaser pursuant to this Agreement are in full force and effect, without material default by any party and without any right of set-off except as disclosed in writing at the time of such delivery.
(d) There is no master lease operation of the Property which accrue prior to any affiliate of Seller, or if such master lease exists, Seller shall cause such master lease to be terminated at Closing without Purchaser paying any termination fee. The Rent Roll attached hereto as Exhibit B is true, correct and complete in all material respects as of the date set forth on the Rent Roll. As of the Closing, the Rent Roll delivered at the Closing Date, have been paid as they became due or will be true, correct and completepaid at or prior to Closing. The copies of the Leases delivered to Purchaser Except for obligations for which provisions are true, correct and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default by any party and without any right of setoff, except as expressly provided by the terms of such Leases or as disclosed on the Rent Roll attached hereto. The copies of the Leases and other agreements with the tenants under the Leases (the “Tenants”) delivered to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating to the Real Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real Property.
(e) Exhibit J attached hereto is a true and complete schedule of all of the Contracts (as hereinafter defined in Section 7), true, complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy of the management agreement currently in effect with respect to the Property. To Seller’s actual knowledge, the Contracts are in full force and effect, without material default by any party and without any claims herein made for the right of setoff, except as expressly provided by the terms of such Contracts proration or as disclosed to Purchaser in writing other adjustments at the time of such delivery. The Contracts constitute the entire agreements with such vendors relating to the Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excluding, however, the Leases and Permitted Encumbrances) affecting the Property which will survive the Closing.
(f) At the Closing, there will be no obligations of Seller with respect to the Property outstanding contracts made as of the Closing Date;
(4) Seller is not aware of any unrecorded liens caused by Seller against the Property which will not be satisfied at Closing;
(5) Seller has received no notice of the commencement of any legal action against Seller for the construction damaging, taking or repair acquiring of all or any improvements to part of the Improvements which have not been fully paid forProperty, and Seller shall cause to be discharged all mechanics’ either temporarily or materialmen’s liens arising from any labor permanently, by condemnation or materials furnished to by exercise of the Improvements prior to right of eminent domain;
B. From the Closing.
(g) Except as set forth in Exhibit K attached hereto, there are no pending or, to Seller’s actual knowledge (without any duty Effective Date of inquiry this Agreement until the Closing Date or investigation), threatened legal proceedings or actions of any kind or character affecting the Property or Seller’s interest therein, including, without limitation, condemnation proceedings.
(h) Seller has not received any actual written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or the Property relating in any way to a Release or compliance with Environmental Laws. For purposes earlier termination of this Agreement, Seller covenants to:
(1) without the phrase “Environmental Laws” shall mean prior consent of Purchaser, not enter into any federalnew written or oral service agreement or other agreement with respect to the Property, state that will not be fully performed by Seller on or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materialsbefore the Closing Date, or that may not be canceled by Purchaser without liability at the environmentClosing;
(2) advise Purchaser promptly of any litigation, includingarbitration or administrative hearing before any governmental body or agency of which Seller is notified, without limitationconcerning or affecting the Property which is instituted after the date hereof; and
(3) not take, or omit to take any action that would have the Comprehensive Environmental Responseeffect of violating any of the material representations, Compensation warranties, covenants, and Liability Act agreements of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 00Seller contained in this Agreement.
Appears in 3 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement, Purchase and Sale Agreement
Representations, Warranties and Covenants of Seller. Seller hereby represents, represents and warrants to Purchaser and covenants to with Purchaser that the following matters are true and correct as of the execution of this Agreement and will also be true and correct as of the Closing, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx Xxxxxxxxxfollows:
(a) a. Seller is a statutory trust limited liability company, duly formed and organized, validly existing and in good standing under the laws of the State of Delaware. This Agreement has been, and has full power and authority to execute and deliver this Agreement and all the other documents executed by Seller which are and instruments now or hereafter to be delivered to Purchaser at the Closing will be, duly authorized, executed and delivered by it pursuant to this Agreement (collectively, the “Seller’s Documents”) and to perform all obligations arising under this Agreement and the Seller’s Documents.
b. Seller has duly executed and delivered this Agreement, and this Agreement and the Seller’s Documents do not and will be legalnot, valid and binding obligations to Seller’s knowledge, contravene any provision of Seller enforceable against Seller in accordance with their respective terms (except to the extent that such enforcement may be limited by applicable bankruptcyorganizational documents comprising Seller, insolvencyany judgment, moratorium and other principles relating to order, decree, writ or limiting the right of contracting parties generally)injunction, will be sufficient to convey title (if they purport to do so) and will not violate or any provisions provision of any material agreement existing law or regulation to which Seller is a party or to which the Property or Seller is subject or bound. Subject to the satisfaction of Section 8(a)(i) below, no consent, waiver or approval by any third party is required in connection with the execution and delivery by Seller of this Agreement or the performance by Seller of the obligations to be performed by Seller under this Agreement.
(b) Except as set forth on Exhibit M attached heretoc. To the best of Seller’s knowledge, Seller has not received from any governmental authority written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) notice of any violation of any zoning, building, fire pending or health code threatened condemnation or any other statute, ordinance, rule or regulation applicable to eminent domain proceedings affecting the Property, Property or any part thereof, that will not have been corrected prior to Closing nor, to .
d. To the best of Seller’s actual knowledge, Seller has it not received any written notice from that the Property and/or the present use and condition of the Property violate any governmental authority regarding any change to the applicable deed restrictions or other covenants, restrictions, site plan approvals, zoning classification or any proceedings to widen or realign any streets or highways adjacent subdivision regulations applicable to the Property or of any condemnation proceedings(collectively, the “Legal Requirements”).
(c) e. To Seller’s actual knowledge, (i) other than the operating statements, income and expense reports and all other contracts or documents required to be delivered to Purchaser pursuant to this Agreement are true, correct and complete copies; and (ii) all contracts or documents required to be delivered to Purchaser pursuant to this Agreement are in full force and effect, without material default by any party and without any right of set-off except as disclosed in writing at the time of such delivery.
(d) There is no master lease of the Property to any affiliate of Seller, or if such master lease exists, Seller shall cause such master lease to be terminated at Closing without Purchaser paying any termination fee. The Rent Roll attached hereto as Exhibit B is true, correct and complete in all material respects as of the date agreements set forth on the Rent Roll. As of the ClosingRoll (collectively, the Rent Roll delivered at the Closing will be true, correct and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default by any party and without any right of setoff, except as expressly provided by the terms of such Leases or as disclosed on the Rent Roll attached hereto. The copies of the Leases and other agreements with the tenants under the Leases (the “TenantsPermitted Leases”) delivered to Purchaser pursuant to this Agreement constitute and the entire agreements with such Tenants relating to the Real Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real Property.
(e) Exhibit J attached hereto is a true and complete schedule of all of the Contracts (as hereinafter defined in Section 7), true, complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy of the management agreement currently in effect with respect to the Property. To Seller’s actual knowledge, the Contracts are in full force and effect, without material default by any party and without any claims made for the right of setoff, except as expressly provided by the terms of such Contracts or as disclosed to Purchaser in writing at the time of such delivery. The Contracts constitute the entire agreements with such vendors relating to the Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excluding, however, the Leases and Permitted Encumbrances) affecting the Property which will survive the Closing.
(f) At the Closing, there will be no outstanding contracts made by Seller for the construction or repair of any improvements to the Improvements which have not been fully paid for, and Seller shall cause to be discharged all mechanics’ or materialmen’s liens arising from any labor or materials furnished to the Improvements prior to the Closing.
(g) Except as set forth in Exhibit K attached heretoExceptions, there are no pending orleases, arrangements, licenses, agreements, options, easements, understandings, contracts or rights of first offer or refusal affecting or relating to Sellerthe Property in any way, including for the purchase, ownership, use, license or possession of the Property (or any portion thereof) (in the case of any of the foregoing, recorded or unrecorded, written, verbal or prescriptive).
f. Seller shall terminate or to the extent assignable with or without third party consent, assign to Purchaser (in each case, as requested by Purchaser in Purchaser’s actual knowledge (without any duty of inquiry or investigationsole discretion), threatened legal proceedings or actions as of any kind or character the Closing Date, all service, utility, maintenance and other contracts and agreements affecting the Property or Seller’s interest thereinProperty, including, without limitation, condemnation proceedings.
if any (h) Seller has not received any actual written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or the Property relating in any way to a Release or compliance with Environmental Laws. For purposes of this Agreementcollectively, the phrase “Environmental LawsService Contracts”). The “Services Contracts” shall mean any federal, state or local law, statute, ordinance, order, decree, rule or regulation not include the Permitted Leases. The Service Contracts and any common laws regarding health, safety, radioactive materials, or Permitted Leases are referred to herein as the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLAAssumed Contracts”); the Resource Conservation and Recovery Act, 00.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (NNN 2003 Value Fund LLC), Purchase and Sale Agreement (NNN 2003 Value Fund LLC)
Representations, Warranties and Covenants of Seller. (a) The Seller hereby represents, represents and warrants to and covenants to Purchaser that with the following matters are true and correct Purchaser, as of the execution of this Agreement and will also be true and correct as of the Closingdate hereof, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx Xxxxxxxxxthat:
(ai) The Seller is a statutory trust duly formed corporation organized and validly existing and in good standing under the laws of the State of Delaware. Delaware and possesses all requisite authority, power, licenses, permits and franchises to carry on its business as currently conducted by it and to execute, deliver and comply with its obligations under the terms of this Agreement;
(ii) This Agreement has been, been duly and all the documents executed by Seller which are to be delivered to Purchaser at the Closing will be, duly validly authorized, executed and delivered by the Seller and, assuming due authorization, execution and will be delivery hereof by the Purchaser, constitutes a legal, valid and binding obligations obligation of Seller the Seller, enforceable against the Seller in accordance with their respective terms (its terms, except to the extent that as such enforcement may be limited by applicable bankruptcy, insolvency, reorganization, receivership, moratorium and other laws affecting the enforcement of creditors' rights in general and by general equity principles relating to (regardless of whether such enforcement is considered in a proceeding in equity or limiting the right of contracting parties generallyat law), will be sufficient and by public policy considerations underlying the securities laws, to convey title (if they the extent that such public policy considerations limit the enforceability of the provisions of this Agreement which purport to do soprovide indemnification from liabilities under applicable securities laws;
(iii) The execution and delivery of this Agreement by the Seller and the Seller's performance and compliance with the terms of this Agreement will not (A) violate the Seller's articles of incorporation or bylaws, (B) violate any provisions law or regulation or any administrative decree or order to which it is subject or (C) constitute a material default (or an event which, with notice or lapse of time, or both, would constitute a material default) under, or result in the breach of, any material contract, agreement or other instrument to which the Seller is a party or to by which the Property or Seller is bound;
(iv) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or other governmental agency or body, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or have consequences that would materially and adversely affect its performance hereunder;
(v) The Seller is not a party to or bound by any agreement or instrument or subject to any articles of incorporation, bylaws or bound. Subject any other corporate restriction or any judgment, order, writ, injunction, decree, law or regulation that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the ability of the Seller to perform its obligations under this Agreement or that requires the consent of any third person to the satisfaction of Section 8(a)(i) below, no consent, waiver or approval by any third party is required in connection with the execution and delivery by Seller of this Agreement or the performance by the Seller of its obligations under this Agreement (except to the extent such consent has been obtained);
(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 or the consummation of the transactions contemplated by this Agreement except as have previously been obtained, and no bulk sale law applies to such transactions;
(vii) No litigation is pending or, to the Seller's knowledge, threatened against the Seller that would, in the Seller's good faith and reasonable judgment, prohibit its entering into this Agreement or materially and adversely affect the performance by the Seller of its obligations to be performed by Seller under this Agreement; and
(viii) Under generally accepted accounting principles ("GAAP") and for federal income tax purposes, the Seller will report the transfer of the Mortgage Loans to the Purchaser as a sale of the Mortgage Loans to the Purchaser in exchange for consideration consisting of a cash amount equal to the Aggregate Purchase Price. The consideration received by the Seller upon the sale of the Mortgage Loans to the Purchaser will constitute at least reasonably equivalent value and fair consideration for the Mortgage Loans. The Seller will be solvent at all relevant times prior to, and will not be rendered insolvent by, the sale of the Mortgage Loans to the Purchaser. The Seller is not selling the Mortgage Loans to the Purchaser with any intent to hinder, delay or defraud any of the creditors of the Seller.
(b) Except The Seller hereby makes the representations and warranties contained in Schedule I and Schedule II hereto for the benefit of the Purchaser and the Trustee for the benefit of the Certificateholders as of the Closing Date, with respect to (and solely with respect to) each Mortgage Loan, which representations and warranties are subject to the exceptions set forth on Exhibit M attached hereto, Seller has not received from any governmental authority written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any violation of any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable to the Property, or any part thereof, that will not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change to the zoning classification or any proceedings to widen or realign any streets or highways adjacent to the Property or of any condemnation proceedingsSchedule III.
(c) To Seller’s If the Seller receives written notice of a Document Defect or a Breach pursuant to Section 2.03(a) of the Pooling and Servicing Agreement relating to a Mortgage Loan, then the Seller shall not later than 90 days from receipt of such notice (or, in the case of a Document Defect or Breach relating to a Mortgage Loan not being a "qualified mortgage" within the meaning of the REMIC Provisions (a "Qualified Mortgage"), not later than 90 days from any party to the Pooling and Servicing Agreement discovering such Document Defect or Breach provided the Seller receives such notice in a timely manner), if such Document Defect or Breach shall materially and adversely affect the value of the applicable Mortgage Loan or the interests of the Certificateholders therein, cure such Document Defect or Breach, as the case may be, in all material respects, which shall include payment of actual knowledgeor provable losses and any Additional Trust Fund Expenses directly resulting therefrom or, if such Document Defect or Breach (other than omissions solely due to a document not having been returned by the related recording office) cannot be cured within such 90-day period, (i) repurchase the operating statements, income and expense reports and all other contracts affected Mortgage Loan at the applicable Purchase Price not later than the end of such 90-day period or documents required to be delivered to Purchaser pursuant to this Agreement are true, correct and complete copies; and (ii) all contracts or documents required substitute a Qualified Substitute Mortgage Loan for such affected Mortgage Loan not later than the end of such 90-day period (and in no event later than the second anniversary of the Closing Date) and pay the Master Servicer for deposit into the Certificate Account, any Substitution Shortfall Amount in connection therewith; provided, however, that unless the Breach would cause the Mortgage Loan not to be a Qualified Mortgage, and if such Document Defect or Breach is capable of being cured but not within such 90-day period and the Seller has commenced and is diligently proceeding with the cure of such Document Defect or Breach within such 90-day period, such Seller shall have an additional 90 days to complete such cure (or, failing such cure, to repurchase or substitute the related Mortgage Loan); and provided, further, that with respect to such additional 90-day period the Seller shall have delivered an officer's certificate to the Trustee setting forth what actions the Seller is pursuing in connection with the cure thereof and stating that the Seller anticipates that such Document Defect or Breach will be cured within the additional 90-day period; and provided; further, that no Document Defect (other than with respect to a Mortgage Note, Mortgage, title insurance policy, Ground Lease or any letter of credit) shall be considered to materially and adversely affect the value of the related Mortgage Loan or the interests of the Certificateholders therein unless the document with respect to which the Document Defect exists is required in connection with an imminent enforcement of the mortgagee's rights or remedies under the related Mortgage Loan, defending any claim asserted by any borrower or third party with respect to the Mortgage Loan, establishing the validity or priority of any lien or any collateral securing the Mortgage Loan or for any immediate significant servicing obligations. For a period of two years from the Closing Date, so long as there remains any Mortgage File relating to a Mortgage Loan as to which there is any uncured Document Defect or Breach, the Seller shall provide the officer's certificate to the Trustee described above as to the reasons such Document Defect or Breach remains uncured and as to the actions being taken to pursue cure. Notwithstanding the foregoing, the delivery of a commitment to issue a policy of lender's title insurance as described in clause 12 of Schedule I hereof in lieu of the delivery of the actual policy of lender's title insurance shall not be considered a Document Defect or Breach with respect to any Mortgage File if such actual policy of insurance is delivered to Purchaser pursuant to this Agreement are in full force and effect, without material default by any party and without any right of set-off except as disclosed in writing at the time of such deliveryTrustee or a Custodian on its behalf not later than the 90th day following the Closing Date.
(d) There If (i) any Mortgage Loan is no master lease required to be repurchased or substituted for in the manner described in the immediately preceding paragraph, (ii) such Mortgage Loan is a Crossed Loan, and (iii) the applicable Document Defect or Breach does not constitute a Document Defect or Breach, as the case may be, as to any other Crossed Loan in such Crossed Group (without regard to this paragraph), then the applicable Document Defect or Breach, as the case may be, will be deemed to constitute a Document Defect or Breach, as the case may be, as to any other Crossed Loan in the Crossed Group for purposes of this paragraph, and the Seller will be required to repurchase or substitute for all of the Property remaining Crossed Loan(s) in the related Crossed Group as provided in the immediately preceding paragraph unless such other Crossed Loans in such Crossed Group satisfy the Crossed Loan Repurchase Criteria and satisfy all other criteria for substitution and repurchase of Mortgage Loans set forth herein. In the event that the remaining Crossed Loans satisfy the aforementioned criteria, the Seller may elect either to repurchase or substitute for only the affected Crossed Loan as to which the related Breach or Document Defect exists or to repurchase or substitute for all of the Crossed Loans in the related Crossed Group. The Seller shall be responsible for the cost of any affiliate Appraisal required to be obtained by the Master Servicer to determine if the Crossed Loan Repurchase Criteria have been satisfied, so long as the scope and cost of Sellersuch Appraisal has been approved by the Seller (such approval not to be unreasonably withheld). To the extent that the Seller is required to purchase or substitute for a Crossed Loan hereunder in the manner prescribed above while the Trustee continues to hold any other Crossed Loans in such Crossed Group, neither the Seller nor the Purchaser shall enforce any remedies against the other's Primary Collateral, but each is permitted to exercise remedies against the Primary Collateral securing its respective Crossed Loans, including, with respect to the Trustee, the Primary Collateral securing the Crossed Loans still held by the Trustee, so long as such exercise does not impair the ability of the other party to exercise its remedies against its Primary Collateral. If the exercise of remedies by one party would impair the ability of the other party to exercise its remedies with respect to the Primary Collateral securing the Crossed Loans held by such party, then the Seller and the Purchaser shall forbear from exercising such remedies until the Mortgage Loan documents evidencing and securing the relevant Crossed Loans can be modified in a manner that complies with this Agreement to remove the threat of impairment as a result of the exercise of remedies. Any reserve or other cash collateral or letters of credit securing the Crossed Loans shall be allocated between such Crossed Loans in accordance with the Mortgage Loan documents, or otherwise on a pro rata basis based upon their outstanding Stated Principal Balances. Notwithstanding the foregoing, if a Crossed Loan included in the Trust Fund is modified to terminate the related cross-collateralization and/or cross-default provisions, as a condition to such master lease existsmodification, the Seller shall cause such master lease to be terminated at Closing without Purchaser paying any termination fee. The Rent Roll attached hereto as Exhibit B is true, correct and complete in all material respects as of the date set forth on the Rent Roll. As of the Closing, the Rent Roll delivered at the Closing will be true, correct and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default by any party and without any right of setoff, except as expressly provided by the terms of such Leases or as disclosed on the Rent Roll attached hereto. The copies of the Leases and other agreements with the tenants under the Leases (the “Tenants”) delivered to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating furnish to the Real Property, have Trustee an Opinion of Counsel that such modification shall not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real Propertycause an Adverse REMIC Event.
(e) Exhibit J attached hereto is In connection with any permitted repurchase or substitution of one or more Mortgage Loans contemplated hereby, upon receipt of a true and complete schedule of all certificate from a Servicing Officer certifying as to the receipt of the Contracts (as hereinafter defined in Section 7Purchase Price or Substitution Shortfall Amount(s), trueas applicable, complete in the Certificate Account, and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy the delivery of the management agreement currently in effect with respect Mortgage File(s) and the Servicing File(s) for the related Qualified Substitute Mortgage Loan(s) to the Property. To Custodian and the Master Servicer, respectively, if applicable (i) the Trustee shall execute and deliver such endorsements and assignments as are provided to it by the Master Servicer, in each case without recourse, representation or warranty, as shall be necessary to vest in the Seller’s actual knowledge, the Contracts are in full force legal and effectbeneficial ownership of each repurchased Mortgage Loan or substituted Mortgage Loan, without material default by any party as applicable, (ii) the Trustee, the Custodian, the Master Servicer and without any claims made for the right Special Servicer shall each tender to the Seller, upon delivery to each of setoff, except as expressly provided them of a receipt executed by the terms Seller, all portions of the Mortgage File and other documents pertaining to such Mortgage Loan possessed by it, and (iii) the Master Servicer and the Special Servicer shall release to the Seller any Escrow Payments and Reserve Funds held by it in respect of such Contracts repurchased or as disclosed to Purchaser in writing at the time of such delivery. The Contracts constitute the entire agreements with such vendors relating to the Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excluding, however, the Leases and Permitted Encumbrances) affecting the Property which will survive the Closingdeleted Mortgage Loans.
(f) At Without limiting the Closingremedies of the Purchaser, there will be no outstanding contracts the Certificateholders or the Trustee on behalf of the Certificateholders pursuant to this Agreement, it is acknowledged that the representations and warranties are being made by Seller for risk allocation purposes. This Section 3 provides the construction sole remedy available to the Certificateholders, or repair the Trustee on behalf of the Certificateholders, respecting any Document Defect in a Mortgage File or any Breach of any improvements to the Improvements which have not been fully paid for, and Seller shall cause to be discharged all mechanics’ representation or materialmen’s liens arising from any labor or materials furnished to the Improvements prior to the Closing.
(g) Except as warranty set forth in Exhibit K attached hereto, there are no pending or, or required to Seller’s actual knowledge (without any duty of inquiry or investigation), threatened legal proceedings or actions of any kind or character affecting the Property or Seller’s interest therein, including, without limitation, condemnation proceedingsbe made pursuant to this Section 3.
(h) Seller has not received any actual written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or the Property relating in any way to a Release or compliance with Environmental Laws. For purposes of this Agreement, the phrase “Environmental Laws” shall mean any federal, state or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materials, or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 00
Appears in 2 contracts
Samples: Mortgage Loan Purchase Agreement (Wachovia Commercial Mort Sec Inc Pas THR Certs Ser 03 C3), Mortgage Loan Purchase Agreement (Wachovia Commercial Mort Sec Inc Pas THR Certs Ser 03 C3)
Representations, Warranties and Covenants of Seller. Seller hereby represents, warrants and covenants to Purchaser that the following matters are true and correct as of the execution of this Agreement and will also be true and correct as of the Closing, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx Xxxxxxxxx:
(a) Seller is a statutory trust duly formed and validly existing under the laws of the State of Delaware. This Agreement has been, and all the documents executed by Seller which are to be delivered to Purchaser at the Closing will be, duly authorized, executed and delivered by Seller and will be legal, valid and binding obligations of Seller enforceable against Seller in accordance with their respective terms (except to the extent that such enforcement may be limited by applicable bankruptcy, insolvency, moratorium and other principles relating to or limiting the right of contracting parties generally), will be sufficient to convey title (if they purport to do so) and will not violate any provisions of any material agreement to which Seller is a party or to which the Property or Seller is subject or bound. Subject to the satisfaction of Section 8(a)(i) below, no consent, waiver or approval by any third party is required in connection with the execution and delivery by Seller of this Agreement or the performance by Seller of the obligations to be performed by Seller under this Agreement.
(b) Except as set forth on Exhibit M attached hereto, Seller has not received from any governmental authority written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any violation of any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable to the Property, or any part thereof, that will not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change to the zoning classification or any proceedings to widen or realign any streets or highways adjacent to the Property or of any condemnation proceedings.
(c) To Seller’s actual knowledge, (i) the operating statements, income and expense reports and all other contracts or documents required to be delivered to Purchaser pursuant to this Agreement are true, correct and complete copies; and (ii) all contracts or documents required to be delivered to Purchaser pursuant to this Agreement are in full force and effect, without material default by any party and without any right of set-off except as disclosed in writing at the time of such delivery.
(d) There is no master lease of the Property to any affiliate of Seller, or if such master lease exists, Seller shall cause such master lease to be terminated at Closing without Purchaser paying any termination fee. The Rent Roll attached hereto as Exhibit B is true, correct and complete in all material respects as of the date set forth on the Rent Roll. As of the Closing, the Rent Roll delivered at the Closing will be true, correct and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default by any party and without any right of setoff, except as expressly provided by the terms of such Leases or as disclosed on the Rent Roll attached hereto. The copies of the Leases and other agreements with the tenants under the Leases (the “Tenants”) delivered to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating to the Real Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real Property.
(e) Exhibit J attached hereto is a true and complete schedule of all of the Contracts (as hereinafter defined in Section 7), true, complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy of the management agreement currently in effect with respect to the Property. To Seller’s actual knowledge, the Contracts are in full force and effect, without material default by any party and without any claims made for the right of setoff, except as expressly provided by the terms of such Contracts or as disclosed to Purchaser in writing at the time of such delivery. The Contracts constitute the entire agreements with such vendors relating to the Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excluding, however, the Leases and Permitted Encumbrances) affecting the Property which will survive the Closing.
(f) At the Closing, there will be no outstanding contracts made by Seller for the construction or repair of any improvements to the Improvements which have not been fully paid for, and Seller shall cause to be discharged all mechanics’ or materialmen’s liens arising from any labor or materials furnished to the Improvements prior to the Closing.
(g) Except as set forth in Exhibit K attached hereto, there are no pending or, to Seller’s actual knowledge (without any duty of inquiry or investigation), threatened legal proceedings or actions of any kind or character affecting the Property or Seller’s interest therein, including, without limitation, condemnation proceedings.
(h) Seller has not received any actual written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or the Property relating in any way to a Release or compliance with Environmental Laws. For purposes of this Agreement, the phrase “Environmental Laws” shall mean any federal, state or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materials, or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 00regarding
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Grubb & Ellis Apartment REIT, Inc.), Purchase and Sale Agreement (Grubb & Ellis Apartment REIT, Inc.)
Representations, Warranties and Covenants of Seller. (a) The Seller hereby represents, represents and warrants to and covenants to Purchaser that with the following matters are true and correct Purchaser, as of the execution of this Agreement and will also be true and correct as of the Closingdate hereof, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx Xxxxxxxxxthat:
(ai) The Seller is a statutory trust corporation duly formed and organized, validly existing and in good standing under the laws of the State of Delaware. Delaware and the Seller has taken all necessary action to authorize the execution, delivery and performance of this Agreement by it, and has the power and authority to execute, deliver and perform this Agreement and all transactions contemplated hereby.
(ii) This Agreement has been, been duly and all the documents executed by Seller which are to be delivered to Purchaser at the Closing will be, duly validly authorized, executed and delivered by Seller the Seller, all requisite action by the Seller's directors and will be legalofficers has been taken in connection therewith, valid and (assuming the due authorization, execution and delivery hereof by the Purchaser) this Agreement constitutes the valid, legal and binding obligations agreement of Seller the Seller, enforceable against the Seller in accordance with their respective terms (its terms, except to the extent that as such enforcement may be limited by applicable (A) laws relating to bankruptcy, insolvency, moratorium and fraudulent transfer, reorganization, receivership, conservatorship or moratorium, (B) other principles laws relating to or limiting affecting the right rights of contracting parties creditors generally, or (C) general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law), will be sufficient to convey title .
(if they purport to do soiii) The execution and delivery of this Agreement by the Seller and the Seller's performance and compliance with the terms of this Agreement will not (A) violate the Seller's certificate of incorporation or bylaws, (B) violate any provisions law or regulation or any administrative decree or order to which it is subject or (C) constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material contract, agreement or other instrument to which the Seller is a party or to by which the Property or Seller is bound, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or materially and adversely affect its performance hereunder.
(iv) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or other governmental agency or body, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or materially and adversely affect its performance hereunder.
(v) The Seller is not a party to or bound by any agreement or instrument or subject to any certificate of incorporation, bylaws or bound. Subject any other corporate restriction or any judgment, order, writ, injunction, decree, law or regulation that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the ability of the Seller to perform its obligations under this Agreement or that requires the consent of any third person to the satisfaction of Section 8(a)(i) below, no consent, waiver or approval by any third party is required in connection with the execution and delivery by Seller of this Agreement or the performance by the Seller of its obligations under this Agreement (except to the extent such consent has been obtained).
(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 or the consummation of the transactions contemplated by this Agreement except as have previously been obtained, and no bulk sale law applies to such transactions.
(vii) None of the sale of the Mortgage Loans by the Seller, the transfer of the Mortgage Loans to the Trustee, and the execution, delivery or performance of this Agreement by the Seller, results or will result in the creation or imposition of any lien on any of the Seller's assets or property that would have a material adverse effect upon the Seller's ability to perform its duties and obligations under this Agreement or materially impair the ability of the Purchaser to be performed realize on the Mortgage Loans.
(viii) There is no action, suit, proceeding or investigation pending or to the knowledge of the Seller, threatened against the Seller in any court or by or before any other governmental agency or instrumentality which would, in the Seller's good faith and reasonable judgment, prohibit its entering into this Agreement or materially and adversely affect the validity of this Agreement or the performance by the Seller of its obligations under this Agreement.
(bix) Except Under generally accepted accounting principles ("GAAP") and for federal income tax purposes, the Seller will report the transfer of the Mortgage Loans to the Purchaser as set forth on Exhibit M attached hereto, a sale of the Mortgage Loans to the Purchaser in exchange for consideration consisting of a cash amount equal to the Purchase Consideration. The consideration received by the Seller has not received from any governmental authority written noticeupon the sale of the Mortgage Loans to the Purchaser will constitute at least reasonably equivalent value and fair consideration for the Mortgage Loans. The Seller will be solvent at all relevant times prior to, and Seller has no actual knowledge (without any duty will not be rendered insolvent by, the sale of inquiry or investigation) of any violation of any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable the Mortgage Loans to the Property, or any part thereof, that will Purchaser. The Seller is not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change selling the Mortgage Loans to the zoning classification Purchaser with any intent to hinder, delay or defraud any proceedings to widen or realign any streets or highways adjacent to of the Property or creditors of any condemnation proceedingsthe Seller.
(cx) To Seller’s actual knowledgeThe prospectus supplement dated May 31, 2007 (i) the operating statements"Prospectus Supplement"), income and expense reports and which supplements the base prospectus dated May 10, 2007 (the "Prospectus"), contains all other contracts or documents the information that is required to be delivered to Purchaser provided in respect of the Seller (that arise from its role as "sponsor" (within the meaning of Regulation AB)), the Mortgage Loans, the related Mortgagors and the related Mortgaged Properties pursuant to this Agreement are true, correct and complete copies; and (ii) all contracts or documents required to be delivered to Purchaser pursuant to this Agreement are in full force and effect, without material default by any party and without any right of set-off except as disclosed in writing at the time of such delivery.
(d) There is no master lease of the Property to any affiliate of Seller, or if such master lease exists, Seller shall cause such master lease to be terminated at Closing without Purchaser paying any termination fee. The Rent Roll attached hereto as Exhibit B is true, correct and complete in all material respects as of the date set forth on the Rent Roll. As of the Closing, the Rent Roll delivered at the Closing will be true, correct and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default by any party and without any right of setoff, except as expressly provided by the terms of such Leases or as disclosed on the Rent Roll attached hereto. The copies of the Leases and other agreements with the tenants under the Leases (the “Tenants”) delivered to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating to the Real Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real Property.
(e) Exhibit J attached hereto is a true and complete schedule of all of the Contracts (as hereinafter defined in Section 7), true, complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy of the management agreement currently in effect with respect to the Property. To Seller’s actual knowledge, the Contracts are in full force and effect, without material default by any party and without any claims made for the right of setoff, except as expressly provided by the terms of such Contracts or as disclosed to Purchaser in writing at the time of such delivery. The Contracts constitute the entire agreements with such vendors relating to the Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excluding, however, the Leases and Permitted Encumbrances) affecting the Property which will survive the Closing.
(f) At the Closing, there will be no outstanding contracts made by Seller for the construction or repair of any improvements to the Improvements which have not been fully paid for, and Seller shall cause to be discharged all mechanics’ or materialmen’s liens arising from any labor or materials furnished to the Improvements prior to the Closing.
(g) Except as set forth in Exhibit K attached hereto, there are no pending or, to Seller’s actual knowledge (without any duty of inquiry or investigation), threatened legal proceedings or actions of any kind or character affecting the Property or Seller’s interest therein, including, without limitation, condemnation proceedings.
(h) Seller has not received any actual written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or the Property relating in any way to a Release or compliance with Environmental LawsRegulation AB. For purposes purpose of this Agreement, the phrase “Environmental Laws” "Regulation AB" shall mean any federalSubpart 229.1100 - Asset Backed Securities (Regulation AB), state 17 C.F.R. ss.ss.229.1100-229.1123, as such may be amended from time to time, and subject to such clarification and interpretation as have been provided by the Commission in the adopting release (Asset-Backed Securities, Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506-1,631 (Jan. 7, 2005)) or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materialsby the staff of the Commission, or as may be provided by the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 00Commission or its staff from time to time.
Appears in 2 contracts
Samples: Mortgage Loan Purchase Agreement (ML-CFC Commercial Mortgage Trust 2007-7), Mortgage Loan Purchase Agreement (ML-CFC Commercial Mortgage Trust 2007-7)
Representations, Warranties and Covenants of Seller. (a) The Seller hereby represents, represents and warrants to and covenants to Purchaser that with the following matters are true and correct Purchaser, as of the execution of this Agreement and will also be true and correct as of the Closingdate hereof, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx Xxxxxxxxxthat:
(ai) The Seller is a statutory trust national banking association duly formed and organized, validly existing and in good standing under the laws of the State United States and Seller has taken all necessary corporate action to authorize the execution, delivery and performance of Delaware. this Agreement by it, and has the power and authority to execute, deliver and perform this Agreement and all transactions contemplated hereby.
(ii) This Agreement has been, been duly and all the documents executed by Seller which are to be delivered to Purchaser at the Closing will be, duly validly authorized, executed and delivered by Seller the Seller, all requisite action by the Seller's directors and will be legalofficers has been taken in connection therewith, valid and (assuming the due authorization, execution and delivery hereof by the Purchaser) this Agreement constitutes the valid, legal and binding obligations agreement of Seller the Seller, enforceable against the Seller in accordance with their respective terms (its terms, except to the extent that as such enforcement may be limited by applicable (A) laws relating to bankruptcy, insolvency, moratorium and fraudulent transfer, reorganization, receivership or moratorium, (B) other principles laws relating to or limiting affecting the right rights of contracting parties creditors generally, or (C) general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law), will be sufficient to convey title .
(if they purport to do soiii) The execution and delivery of this Agreement by the Seller and the Seller's performance and compliance with the terms of this Agreement will not (A) violate the Seller's articles of association or bylaws, (B) violate any provisions law or regulation or any administrative decree or order to which it is subject or (C) constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material contract, agreement or other instrument to which the Seller is a party or to by which the Property or Seller is bound, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or might have consequences that would materially and adversely affect its performance hereunder.
(iv) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or other governmental agency or body, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or might have consequences that would materially and adversely affect its performance hereunder.
(v) The Seller is not a party to or bound by any agreement or instrument or subject to any articles of incorporation, regulations or bound. Subject any other corporate restriction or any judgment, order, writ, injunction, decree, law or regulation that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the ability of the Seller to perform its obligations under this Agreement or that requires the consent of any third person to the satisfaction of Section 8(a)(i) below, no consent, waiver or approval by any third party is required in connection with the execution and delivery by Seller of this Agreement or the performance by the Seller of its obligations under this Agreement (except to the extent such consent has been obtained).
(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 or the consummation of the transactions contemplated by this Agreement except as have previously been obtained, and no bulk sale law applies to such transactions.
(vii) None of the sale of the Mortgage Loans by the Seller, the transfer of the Mortgage Loans to the Trustee, and the execution, delivery or performance of this Agreement by the Seller, results or will result in the creation or imposition of any lien on any of the Seller's assets or property that would have a material adverse effect upon the Seller's ability to perform its duties and obligations under this Agreement or materially impair the ability of the Purchaser to be performed realize on the Mortgage Loans.
(viii) There is no action, suit, proceeding or investigation pending or to the knowledge of the Seller, threatened against the Seller in any court or by or before any other governmental agency or instrumentality which would, in the Seller's good faith and reasonable judgment, prohibit its entering into this Agreement or materially and adversely affect the validity of this Agreement or the performance by the Seller of its obligations under this Agreement.
(ix) Under generally accepted accounting principles ("GAAP") and for federal income tax purposes, the Seller will report the transfer of the Mortgage Loans to the Purchaser as a sale of the Mortgage Loans to the Purchaser in exchange for consideration consisting of a cash amount equal to the Purchase Consideration. The consideration received by the Seller upon the sale of the Mortgage Loans to the Purchaser will constitute at least reasonably equivalent value and fair consideration for the Mortgage Loans. The Seller will be solvent at all relevant times prior to, and will not be rendered insolvent by, the sale of the Mortgage Loans to the Purchaser. The Seller is not selling the Mortgage Loans to the Purchaser with any intent to hinder, delay or defraud any of the creditors of the Seller.
(b) Except The Seller hereby makes the representations and warranties contained in Schedule I hereto for the benefit of the Purchaser and the Trustee for the benefit of the Certificateholders as of the Closing Date (unless a different date is specified therein), with respect to (and solely with respect to) each Mortgage Loan, subject, however, to the exceptions set forth on Exhibit M attached hereto, Seller has not received from any governmental authority written notice, and Seller has no actual knowledge (without any duty Annex A to Schedule I of inquiry or investigation) of any violation of any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable to the Property, or any part thereof, that will not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change to the zoning classification or any proceedings to widen or realign any streets or highways adjacent to the Property or of any condemnation proceedingsthis Agreement.
(c) To Seller’s actual knowledge, (i) If the operating statements, income and expense reports and all other contracts Seller discovers or documents required receives written notice of a Document Defect or a Breach relating to be delivered to Purchaser a Mortgage Loan pursuant to this Agreement are trueSection 2.03(a) of the Pooling and Servicing Agreement, correct and complete copies; and (ii) all contracts then the Seller shall, not later than 90 days from such discovery or documents required to be delivered to Purchaser pursuant to this Agreement are in full force and effect, without material default by any party and without any right of set-off except as disclosed in writing at the time receipt of such delivery.
notice (d) There is no master lease or, in the case of the Property to any affiliate of Seller, a Document Defect or if such master lease exists, Seller shall cause such master lease to be terminated at Closing without Purchaser paying any termination fee. The Rent Roll attached hereto as Exhibit B is true, correct and complete in all material respects as of the date set forth on the Rent Roll. As of the Closing, the Rent Roll delivered at the Closing will be true, correct and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default by any party and without any right of setoff, except as expressly provided by the terms of such Leases or as disclosed on the Rent Roll attached hereto. The copies of the Leases and other agreements with the tenants under the Leases (the “Tenants”) delivered to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants Breach relating to the Real Property, have a Mortgage Loan not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real Property.
(e) Exhibit J attached hereto is a true and complete schedule of all of the Contracts (as hereinafter defined in Section 7), true, complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy of the management agreement currently in effect with respect to the Property. To Seller’s actual knowledge, the Contracts are in full force and effect, without material default by any party and without any claims made for the right of setoff, except as expressly provided by the terms of such Contracts or as disclosed to Purchaser in writing at the time of such delivery. The Contracts constitute the entire agreements with such vendors relating to the Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excluding, however, the Leases and Permitted Encumbrances) affecting the Property which will survive the Closing.
(f) At the Closing, there will be no outstanding contracts made by Seller for the construction or repair of any improvements to the Improvements which have not been fully paid for, and Seller shall cause to be discharged all mechanics’ or materialmen’s liens arising from any labor or materials furnished to the Improvements prior to the Closing.
(g) Except as set forth in Exhibit K attached hereto, there are no pending or, to Seller’s actual knowledge (without any duty of inquiry or investigation), threatened legal proceedings or actions of any kind or character affecting the Property or Seller’s interest therein, including, without limitation, condemnation proceedings.
(h) Seller has not received any actual written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or the Property relating in any way to a Release or compliance with Environmental Laws. For purposes of this Agreement, the phrase “Environmental Laws” shall mean any federal, state or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materials, or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 00being a
Appears in 2 contracts
Samples: Mortgage Loan Purchase Agreement (Merrill Lynch Mortgage Investors Inc Trust 2004-Mkb1), Mortgage Loan Purchase Agreement (Merrill Lynch Mortgage Investors Inc Trust 2004-Mkb1)
Representations, Warranties and Covenants of Seller. (a) The Seller hereby represents, represents and warrants to and covenants to Purchaser that with the following matters are true and correct Purchaser, as of the execution of this Agreement date hereof and will also be true and correct as of the ClosingClosing Date, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx Xxxxxxxxxthat:
(ai) The Seller is a statutory trust limited partnership duly formed and organized, validly existing and in good standing under the laws of the State of Delaware. This Agreement has beenNew York, is duly qualified as a foreign organization in good standing in all jurisdictions to the extent such qualification is necessary to hold and sell the Mortgage Loans or otherwise comply with its obligations under the Operative Documents, except where the failure to be so qualified would not have a material adverse effect on its ability to perform its obligations under the Operative Documents, and possesses all requisite authority and power to carry on its business as currently conducted by it and to execute, deliver and comply with its obligations under the documents executed by Seller which are to be delivered to Purchaser at the Closing will be, terms of each Operative Document.
(ii) Each Operative Document has been duly and validly authorized, executed and delivered by the Seller and, assuming due authorization, execution and will be delivery hereof by the Purchaser, constitutes a legal, valid and binding obligations obligation of Seller the Seller, enforceable against the Seller in accordance with their respective terms (its terms, except to the extent that as such enforcement may be limited by applicable (A) bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws affecting the enforcement of creditors' rights in general, and other (B) general equity principles relating to (regardless of whether such enforcement is considered in a proceeding in equity or limiting at law).
(iii) The execution and delivery of each Operative Document by the right Seller and the Seller's performance and compliance with the terms of contracting parties generally), will be sufficient to convey title (if they purport to do so) and each Operative Document will not (A) violate the Seller's organizational documents, (B) violate any provisions law or regulation or any administrative decree or order to which the Seller is subject or (C) constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material contract, agreement or other instrument to which the Seller is a party or to by which the Property or Seller is bound.
(iv) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or other governmental agency or body, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect its performance hereunder.
(v) The Seller is not a party to or bound by any agreement or instrument or subject to any organizational document or bound. Subject any other corporate restriction or any judgment, order, writ, injunction, decree, law or regulation that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the ability of the Seller to perform its obligations under the Operative Documents or that requires the consent of any third person to the satisfaction execution and delivery of the Operative Documents by the Seller or the performance by the Seller of its obligations under the Operative Documents.
(vi) Except for the recordation and/or filing of assignments and other transfer documents with respect to the Mortgage Loans, as contemplated by Section 8(a)(i) below2(d), no consent, waiver approval, authorization or approval by order of, registration or filing with, or notice to, any third party court or governmental agency or body, is required for the execution, delivery and performance by the Seller of or compliance by the Seller with the Operative Documents or the consummation of the transactions contemplated by the Operative Documents; and no bulk sale law applies to such transactions.
(vii) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller that would, in the Seller's good faith and reasonable judgment, prohibit its entering into the Operative Documents or materially and adversely affect the performance by the Seller of its obligations under the Operative Documents.
(viii) The Seller intends to treat the transfer of the Mortgage Loans to the Purchaser as a sale for accounting and tax purposes. In connection with the execution and delivery foregoing, the Seller shall cause all of its records to reflect such transfer as a sale (as opposed to a secured loan). The consideration received by the Seller of this Agreement or upon the performance by Seller sale of the Mortgage Loans to the Purchaser will constitute at least reasonably equivalent value and fair consideration for the Mortgage Loans. The Seller will be solvent at all relevant times prior to, and will not be rendered insolvent by, the sale of the Mortgage Loans to the Purchaser. The Seller is not selling the Mortgage Loans to the Purchaser with any intent to hinder, delay or defraud any of the creditors of the Seller. After giving effect to its transfer of the Mortgage Loans to the Purchaser, as provided herein, the value of the Seller's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Seller's debts and obligations, including contingent and unliquidated debts and obligations of the Seller, and the Seller will not be left with unreasonably small assets or capital with which to be performed by engage in and conduct its business. The Mortgage Loans do not constitute all or substantially all of the assets of the Seller. The Seller under this Agreementdoes not intend to, and does not believe that it will, incur debts or obligations beyond its ability to pay such debts and obligations as they mature.
(ix) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Seller are pending or contemplated.
(b) Except The Seller hereby makes, for the benefit of the Purchaser, with respect to each Mortgage Loan, as of the Closing Date or as of such other date expressly set forth therein, each of the representations and warranties set forth on Exhibit M B attached hereto, Seller has not received from any governmental authority written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any violation of any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable to the Property, or any part thereof, that will not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change to the zoning classification or any proceedings to widen or realign any streets or highways adjacent to the Property or of any condemnation proceedings.
(c) To Seller’s actual knowledge, (i) the operating statements, income and expense reports and all other contracts or documents required to be delivered to Purchaser pursuant to this Agreement are true, correct and complete copies; and (ii) all contracts or documents required to be delivered to Purchaser pursuant to this Agreement are in full force and effect, without material default by any party and without any right of set-off except as disclosed in writing at the time of such delivery.
(d) There is no master lease of the Property to any affiliate of Seller, or if such master lease exists, Seller shall cause such master lease to be terminated at Closing without Purchaser paying any termination fee. The Rent Roll attached hereto as Exhibit B is true, correct and complete in all material respects as of the date otherwise set forth on the Rent Roll. As of the Closing, the Rent Roll delivered at the Closing will be true, correct and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default by any party and without any right of setoff, except as expressly provided by the terms of such Leases or as disclosed on the Rent Roll Exhibit C attached hereto. The copies of ; provided that the Leases and other agreements with the tenants under the Leases (the “Tenants”) delivered to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating to the Real Property, have Seller expressly does not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real Property.
(e) Exhibit J attached hereto is a true and complete schedule of all of the Contracts (as hereinafter defined in Section 7), true, complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy of the management agreement currently in effect make any Multifamily Representation with respect to any Mortgage Loan that is not in the PropertyMultifamily Loan Group. To Seller’s actual knowledgeAs used in Exhibit B, the Contracts are in full force term "Multifamily Loan Group" shall mean a loan group comprised of the multifamily mortgages and effect, without material default by any party mortgages on manufactured housing parks identified as Loan Group 2 on the Mortgage Loan Schedule. The term "Multifamily Representation" shall mean each of the representations and without any claims warranties made for the right of setoff, except as expressly provided by the terms of such Contracts or as disclosed Seller with respect to Purchaser any Mortgage Loan in writing at the time of such delivery. The Contracts constitute the entire agreements with such vendors relating to the Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties Multifamily Loan Group in clause (excluding, however, the Leases and Permitted Encumbrances) affecting the Property which will survive the Closing.
(f) At the Closing, there will be no outstanding contracts made by Seller for the construction or repair of any improvements to the Improvements which have not been fully paid for, and Seller shall cause to be discharged all mechanics’ or materialmen’s liens arising from any labor or materials furnished to the Improvements prior to the Closing.
(g) Except as set forth in Exhibit K attached hereto, there are no pending or, to Seller’s actual knowledge (without any duty of inquiry or investigation), threatened legal proceedings or actions of any kind or character affecting the Property or Seller’s interest therein, including, without limitation, condemnation proceedings.
(h) Seller has not received any actual written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation48) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or the Property relating in any way to a Release or compliance with Environmental Laws. For purposes of this Agreement, the phrase “Environmental Laws” shall mean any federal, state or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materials, or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 00Exhibit B.
Appears in 2 contracts
Samples: Mortgage Loan Purchase Agreement (Greenwich Capital Commercial Funding Corp. Commercial Mortgage Trust 2007-Gg9), Mortgage Loan Purchase Agreement (Greenwich Capital Commercial Funding Corp. Commercial Mortgage Trust 2007-Gg11)
Representations, Warranties and Covenants of Seller. (a) The Seller hereby represents, represents and warrants to and covenants to Purchaser that with the following matters are true and correct Purchaser, as of the execution of this Agreement and will also be true and correct as of the Closingdate hereof, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx Xxxxxxxxxthat:
(ai) The Seller is a statutory trust corporation duly formed and organized, validly existing and in good standing under the laws of the State of Delaware. Delaware and Seller has taken all necessary corporate action to authorize the execution, delivery and performance of this Agreement by it, and has the power and authority to execute, deliver and perform this Agreement and all transactions contemplated hereby.
(ii) This Agreement has been, been duly and all the documents executed by Seller which are to be delivered to Purchaser at the Closing will be, duly validly authorized, executed and delivered by the Seller and, assuming due authorization, execution and will be delivery hereof by the Purchaser, constitutes a legal, valid and binding obligations obligation of Seller the Seller, enforceable against the Seller in accordance with their respective terms (its terms, except to the extent that as such enforcement may be limited by applicable bankruptcy, insolvency, reorganization, receivership, moratorium and other laws affecting the enforcement of creditors' rights in general, and by general equity principles relating to (regardless of whether such enforcement is considered in a proceeding in equity or limiting the right of contracting parties generallyat law), will be sufficient and by public policy considerations underlying the securities laws, to convey title (if they the extent that such public policy considerations limit the enforceability of the provisions of this Agreement which purport to do soprovide indemnification from liabilities under applicable securities laws;
(iii) The execution and delivery of this Agreement by the Seller and the Seller's performance and compliance with the terms of this Agreement will not (A) violate the Seller's articles of incorporation or bylaws, (B) violate any provisions law or regulation or any administrative decree or order to which it is subject or (C) constitute a material default (or an event which, with notice or lapse of time, or both, would constitute a material default) under, or result in the breach of, any material contract, agreement or other instrument to which the Seller is a party or to by which the Property or Seller is bound;
(iv) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or other governmental agency or body, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or have consequences that would materially and adversely affect its performance hereunder;
(v) The Seller is not a party to or bound by any agreement or instrument or subject to any articles of association, bylaws or bound. Subject any other corporate restriction or any judgment, order, writ, injunction, decree, law or regulation that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the ability of the Seller to perform its obligations under this Agreement or that requires the consent of any third person to the satisfaction of Section 8(a)(i) below, no consent, waiver or approval by any third party is required in connection with the execution and delivery by Seller of this Agreement or the performance by the Seller of its obligations under this Agreement (except to the extent such consent has been obtained);
(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 or the consummation of the transactions contemplated by this Agreement except as have previously been obtained, and no bulk sale law applies to such transactions;
(vii) No litigation is pending or, to the Seller's knowledge, threatened against the Seller that would, in the Seller's good faith and reasonable judgment, prohibit its entering into this Agreement or materially and adversely affect the performance by the Seller of its obligations under this Agreement; and
(viii) Under generally accepted accounting principles ("GAAP") and for federal income tax purposes, the Seller will report the transfer of the Mortgage Loans to the Purchaser as a sale of the Mortgage Loans to the Purchaser in exchange for consideration consisting of a cash amount equal to the Purchase Price. The consideration received by the Seller upon the sale of the Mortgage Loans to the Purchaser will constitute at least reasonably equivalent value and fair consideration for the Mortgage Loans. The Seller will be solvent at all relevant times prior to, and will not be rendered insolvent by, the sale of the Mortgage Loans to the Purchaser. The Seller is not selling the Mortgage Loans to the Purchaser with any intent to hinder, delay or defraud any of the creditors of the Seller.
(b) The Seller hereby makes the representations and warranties contained in Schedule I and Schedule II hereto for the benefit of the Purchaser and the Trustee for the benefit of the Certificateholders as of the Closing Date, with respect to (and solely with respect to) each Mortgage Loan.
(c) If the Seller discovers or receives written notice of a Document Defect or a Breach pursuant to Section 2.03(a) of the Pooling and Servicing Agreement relating to a Mortgage Loan, then the Seller shall not later than 90 days from such discovery or receipt of such notice (or, in the case of a Document Defect or Breach relating to a Mortgage Loan not being a "qualified mortgage" within the meaning of the REMIC Provisions (a "Qualified Mortgage"), not later than 90 days from any party to the Pooling and Servicing Agreement discovering such Document Defect or Breach provided the Seller receives such notice in a timely manner), if such Document Defect or Breach shall materially and adversely affect the value of the related Mortgage Loan or the interest of the Certificateholders therein, cure such Document Defect or Breach, as the case may be, in all material respects, which shall include payment of losses and any Additional Trust Fund Expenses associated therewith or, if such Document Defect or Breach (other than omissions solely due to a document not having been returned by the related recording office) cannot be cured within such 90-day period, (i) repurchase the affected Mortgage Loan at the applicable Purchase Price (as defined in the Pooling and Servicing Agreement) not later than the end of such 90-day period or (ii) substitute a Qualified Substitute Mortgage Loan for such affected Mortgage Loan not later than the end of such 90-day period (and in no event later than the second anniversary of the Closing Date) and pay the Master Servicer for deposit into the Certificate Account, any Substitution Shortfall Amount in connection therewith; provided, however, that unless the breach would cause the Mortgage Loan not to be performed a Qualified Mortgage, and if such Document Defect or Breach is capable of being cured but not within such 90-day period and the Seller has commenced and is diligently proceeding with the cure of such Document Defect or Breach within such 90-day period, the Seller shall have an additional 90 days to complete such cure (or, failing such cure, to repurchase or substitute the related Mortgage Loan); and provided, further, that with respect to such additional 90-day period the Seller shall have delivered an officer's certificate to the Trustee setting forth the reason such Document Defect or Breach is not capable of being cured within the initial 90-day period and what actions the Seller is pursuing in connection with the cure thereof and stating that the Seller anticipates that such Document Defect or Breach will be cured within the additional 90-day period; and provided; further, that no Document Defect (other than with respect to a Mortgage Note, Mortgage, title insurance policy, Ground Lease or any letter of credit) shall be considered to materially and adversely affect the interests of the Certificateholders or the value of the related Mortgage Loan unless the document with respect to which the Document Defect exists is required in connection with an imminent enforcement of the mortgagee's rights or remedies under the related Mortgage Loan, defending any claim asserted by any borrower or third party with respect to the Mortgage Loan, establishing the validity or priority of any lien or any collateral securing the Mortgage Loan or for any immediate servicing obligations. A Document Defect or Breach as to a Mortgage Loan that is cross-collateralized and cross-defaulted with one or more other Mortgage Loans (each a "Crossed Loan"), and is not cured as provided for above, shall require the repurchase or substitution of all such cross-collateralized and cross-defaulted Mortgage Loans unless the debt service coverage ratio for all the remaining Crossed Loans for the four calendar quarters immediately preceding such repurchase or substitution is not less than the debt service coverage ratio for all such related Crossed Loans, including the affected Crossed Loan, for the four calendar quarters immediately preceding such repurchase or substitution; provided, that if such debt service coverage test is satisfied and any Crossed Loan is not so materially and adversely affected and therefore is not so repurchased or substituted, then such Crossed Loan shall be released from its cross-collateralization and cross-default provision so long as such Crossed Loan is held in the Trust Fund; provided, further, that the repurchase of less than all such Crossed Loans and the release from cross-collateralization and cross-default provision shall be subject to the delivery by the Seller to the Trustee, at the expense of the Seller, of an Opinion of Counsel to the effect that such release would not cause REMIC I or REMIC II to fail to qualify as a REMIC under the Code or result in the imposition of any tax on "prohibited transactions" or "contributions" after the Startup Day under the REMIC Provisions. For a period of two years from the Closing Date, so long as there remains any Mortgage File relating to a Mortgage Loan as to which there is any uncured Document Defect or Breach known to the Seller, the Seller shall provide the officer's certificate to the Trustee described above as to the reasons such Document Defect or Breach remains uncured and as to the actions being taken to pursue cure; provided, however, that, without limiting the effect of the foregoing provisions of this Section 3(c), if such Document Defect or Breach shall materially and adversely affect the value of such Mortgage Loan or the interests of the holders of the Certificates therein (subject to the last proviso in the second preceding sentence), the Seller shall in all cases on or prior to the second anniversary of the Closing Date either cause such Document Defect or Breach to be cured or repurchase or substitute for the affected Mortgage Loan. Notwithstanding the foregoing, the delivery of a commitment to issue a policy of lender's title insurance as described in clause 12 of Schedule I hereof in lieu of the delivery of the actual policy of lender's title insurance shall not be considered a Document Defect or Breach with respect to any Mortgage File if such actual policy of insurance is delivered to the Trustee or a Custodian on its behalf not later than the 90th day following the Closing Date.
(d) In connection with any permitted repurchase or substitution of one or more Mortgage Loans contemplated hereby, upon receipt of a certificate from a Servicing Officer certifying as to the receipt of the Purchase Price (as defined in the Pooling and Servicing Agreement) or Substitution Shortfall Amount(s), as applicable, in the Certificate Account, and the delivery of the Mortgage File(s) and the Servicing File(s) for the related Qualified Substitute Mortgage Loan(s) to the Custodian and the Master Servicer, respectively, if applicable (i) the Trustee shall execute and deliver such endorsements and assignments as are provided to it by the Master Servicer or the Seller, in each case without recourse, representation or warranty, as shall be necessary to vest in the Seller, the legal and beneficial ownership of each repurchased Mortgage Loan or substituted Mortgage Loan, as applicable, and (ii) the Trustee, the Custodian, the Master Servicer and the Special Servicer shall each tender to the Seller, upon delivery to each of them of a receipt executed by the Seller, all portions of the Mortgage File and other documents pertaining to such Mortgage Loan possessed by it and the Master Servicer and the Special Servicer shall release to the Seller any Escrow Payments and Reserve Funds held by it in respect of such repurchased or deleted Mortgage Loan.
(e) Without limiting the remedies of the Purchaser, the Certificateholders or the Trustee on behalf of the Certificateholders pursuant to this Agreement, it is acknowledged that the representations and warranties are being made for risk allocation purposes. This Section 3 provides the sole remedy available to the Certificateholders, or the Trustee on behalf of the Certificateholders, respecting any Document Defect in a Mortgage File or any Breach of any representation or warranty set forth in or required to be made pursuant to Section 3 of this Agreement.
(bf) Except as set forth on Exhibit M attached heretoThe Seller acknowledges and agrees that, Seller has not received from any governmental authority written notice, and Seller has no actual knowledge (without any duty for the purpose of inquiry or investigation) of any violation of any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable to the Property, or any part thereof, litigation that will not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change to the zoning classification or any proceedings to widen or realign any streets or highways adjacent to the Property or of any condemnation proceedings.
(c) To Seller’s actual knowledge, (i) the operating statements, income and expense reports and all other contracts or documents required to be delivered to Purchaser pursuant to this Agreement are true, correct and complete copies; and (ii) all contracts or documents required to be delivered to Purchaser pursuant to this Agreement are in full force and effect, without material default by any party and without any right of set-off except as disclosed in writing at the time of such delivery.
(d) There is no master lease may arise out of the Property to any affiliate exercise of Seller, remedies hereunder in respect of a Document Defect or if such master lease exists, Seller shall cause such master lease to be terminated at Closing without Purchaser paying any termination fee. The Rent Roll attached hereto as Exhibit B is true, correct and complete in all material respects as of the date set forth on the Rent Roll. As of the ClosingBreach, the Rent Roll delivered at the Closing will be true, correct and complete. The copies statute of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default by any party and without any right of setoff, except as expressly provided by the terms of such Leases or as disclosed on the Rent Roll attached hereto. The copies of the Leases and other agreements with the tenants under the Leases (the “Tenants”) delivered to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants limitations relating to the Real Property, have exercise of such remedies will not been materially amended, modified begin to run until the earlier of discovery of such Document Defect or supplemented, except for Breach or the time such amendments, modifications and supplements delivered to Purchaser, and there are no other leases Document Defect or tenancy agreements affecting the Real Property.
(e) Exhibit J attached hereto is a true and complete schedule of all of the Contracts (as hereinafter defined in Section 7), true, complete and correct copies of which Breach should have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy of discovered, provided the management agreement currently in effect with respect to the Property. To Seller’s actual knowledge, the Contracts are in full force and effect, without material default by any party and without any claims made for the right of setoff, except as expressly provided by the terms Seller receives written notice of such Contracts Document Defect or as disclosed to Purchaser in writing at the time of such delivery. The Contracts constitute the entire agreements with such vendors relating to the Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excluding, however, the Leases and Permitted Encumbrances) affecting the Property which will survive the ClosingBreach immediately upon discovery thereof.
(f) At the Closing, there will be no outstanding contracts made by Seller for the construction or repair of any improvements to the Improvements which have not been fully paid for, and Seller shall cause to be discharged all mechanics’ or materialmen’s liens arising from any labor or materials furnished to the Improvements prior to the Closing.
(g) Except as set forth in Exhibit K attached hereto, there are no pending or, to Seller’s actual knowledge (without any duty of inquiry or investigation), threatened legal proceedings or actions of any kind or character affecting the Property or Seller’s interest therein, including, without limitation, condemnation proceedings.
(h) Seller has not received any actual written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or the Property relating in any way to a Release or compliance with Environmental Laws. For purposes of this Agreement, the phrase “Environmental Laws” shall mean any federal, state or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materials, or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 00
Appears in 2 contracts
Samples: Mortgage Loan Purchase Agreement (Merrill Lynch Mort Inv Inc Com MRT Pas THR Cert Ser 2002 Mw1), Mortgage Loan Purchase Agreement (Merrill Lynch Mort Inv Inc Com MRT Pas THR Cert Ser 2002 Mw1)
Representations, Warranties and Covenants of Seller. (a) The Seller hereby represents, represents and warrants to and covenants to Purchaser that with the following matters are true and correct Purchaser, as of the execution of this Agreement and will also be true and correct as of the Closingdate hereof, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx Xxxxxxxxxthat:
(ai) The Seller is a statutory trust corporation duly formed and organized, validly existing and in good standing under the laws of the State of Delaware. , is duly qualified as a foreign organization in good standing in all jurisdictions to the extent such qualification is necessary to hold and sell the Mortgage Loans or otherwise comply with its obligations under this Agreement, except where the failure to be so qualified would not have a material adverse effect on its ability to perform its obligations hereunder, and possesses all requisite authority and power to carry on its business as currently conducted by it and to execute, deliver and comply with its obligations under the terms of this Agreement.
(ii) This Agreement has been, been duly and all the documents executed by Seller which are to be delivered to Purchaser at the Closing will be, duly validly authorized, executed and delivered by the Seller and, assuming due authorization, execution and will be delivery hereof by the Purchaser, constitutes a legal, valid and binding obligations obligation of Seller the Seller, enforceable against the Seller in accordance with their respective terms (its terms, except to the extent that as such enforcement may be limited by applicable (A) bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws affecting the enforcement of creditors' rights in general, and other (B) general equity principles relating to (regardless of whether such enforcement is considered in a proceeding in equity or limiting at law).
(iii) The execution and delivery of this Agreement by the right Seller and the Seller's performance and compliance with the terms of contracting parties generally), will be sufficient to convey title (if they purport to do so) and this Agreement will not (A) violate the Seller's organizational documents, (B) violate any provisions law or regulation or any administrative decree or order to which the Seller is subject or (C) constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material contract, agreement or other instrument to which the Seller is a party or to by which the Property or Seller is subject bound.
(iv) The Seller is not in default with respect to any order or bound. Subject decree of any court or any order, regulation or demand of any federal, state, municipal or other governmental agency or body, which default would reasonably be expected to have consequences that would, in the satisfaction Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of Section 8(a)(ithe Seller or its properties or have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect its performance hereunder.
(v) below, no consent, waiver The Seller is not a party to or approval bound by any agreement or instrument or subject to any organizational document or any other corporate restriction or any judgment, order, writ, injunction, decree, law or regulation that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the ability of the Seller to perform its obligations under this Agreement or that requires the consent of any third party is required in connection with person to the execution and delivery by Seller of this Agreement by the Seller or the performance by the Seller of the its obligations to be performed by Seller under this Agreement.
(vi) Except for the recordation and/or filing of assignments and other transfer documents with respect to the Mortgage Loans, as contemplated by Section 2(d), no consent, approval, authorization or order of, registration or filing with, or notice to, 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; and no bulk sale law applies to such transactions.
(vii) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller that would, in the Seller's good faith and reasonable judgment, prohibit its entering into this Agreement or materially and adversely affect the performance by the Seller of its obligations under this Agreement.
(viii) The Seller intends to treat the transfer of the Mortgage Loans to the Purchaser as a sale for accounting and tax purposes. In connection with the foregoing, the Seller shall cause all of its records to reflect such transfer as a sale (as opposed to a secured loan). The consideration received by the Seller upon the sale of the Mortgage Loans to the Purchaser will constitute at least reasonably equivalent value and fair consideration for the Mortgage Loans. The Seller will be solvent at all relevant times prior to, and will not be rendered insolvent by, the sale of the Mortgage Loans to the Purchaser. The Seller is not selling the Mortgage Loans to the Purchaser with any intent to hinder, delay or defraud any of the creditors of the Seller. After giving effect to its transfer of the Mortgage Loans to the Purchaser, as provided herein, the value of the Seller's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Seller's debts and obligations, including contingent and unliquidated debts and obligations of the Seller, and the Seller will not be left with unreasonably small assets or capital with which to engage in and conduct its business. The Mortgage Loans do not constitute all or substantially all of the assets of the Seller. The Seller does not intend to, and does not believe that it will, incur debts or obligations beyond its ability to pay such debts and obligations as they mature.
(ix) No proceedings looking toward liquidation, dissolution or bankruptcy of the Seller are pending or contemplated.
(b) Except The Seller hereby makes, for the benefit of the Purchaser, with respect to each Mortgage Loan, as of the Closing Date or as of such other date expressly set forth therein, each of the representations and warranties set forth on Exhibit M B attached hereto, Seller has not received from any governmental authority written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any violation of any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable to the Property, or any part thereof, that will not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change to the zoning classification or any proceedings to widen or realign any streets or highways adjacent to the Property or of any condemnation proceedings.
(c) To Seller’s actual knowledge, (i) the operating statements, income and expense reports and all other contracts or documents required to be delivered to Purchaser pursuant to this Agreement are true, correct and complete copies; and (ii) all contracts or documents required to be delivered to Purchaser pursuant to this Agreement are in full force and effect, without material default by any party and without any right of set-off except as disclosed in writing at the time of such delivery.
(d) There is no master lease of the Property to any affiliate of Seller, or if such master lease exists, Seller shall cause such master lease to be terminated at Closing without Purchaser paying any termination fee. The Rent Roll attached hereto as Exhibit B is true, correct and complete in all material respects as of the date otherwise set forth on the Rent Roll. As of the Closing, the Rent Roll delivered at the Closing will be true, correct and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default by any party and without any right of setoff, except as expressly provided by the terms of such Leases or as disclosed on the Rent Roll Exhibit C attached hereto. The copies of the Leases and other agreements with the tenants under the Leases (the “Tenants”) delivered to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating to the Real Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real Property.
(e) Exhibit J attached hereto is a true and complete schedule of all of the Contracts (as hereinafter defined in Section 7), true, complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy of the management agreement currently in effect with respect to the Property. To Seller’s actual knowledge, the Contracts are in full force and effect, without material default by any party and without any claims made for the right of setoff, except as expressly provided by the terms of such Contracts or as disclosed to Purchaser in writing at the time of such delivery. The Contracts constitute the entire agreements with such vendors relating to the Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excluding, however, the Leases and Permitted Encumbrances) affecting the Property which will survive the Closing.
(f) At the Closing, there will be no outstanding contracts made by Seller for the construction or repair of any improvements to the Improvements which have not been fully paid for, and Seller shall cause to be discharged all mechanics’ or materialmen’s liens arising from any labor or materials furnished to the Improvements prior to the Closing.
(g) Except as set forth in Exhibit K attached hereto, there are no pending or, to Seller’s actual knowledge (without any duty of inquiry or investigation), threatened legal proceedings or actions of any kind or character affecting the Property or Seller’s interest therein, including, without limitation, condemnation proceedings.
(h) Seller has not received any actual written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or the Property relating in any way to a Release or compliance with Environmental Laws. For purposes of this Agreement, the phrase “Environmental Laws” shall mean any federal, state or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materials, or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 00
Appears in 2 contracts
Samples: Mortgage Loan Purchase Agreement (COBALT CMBS Commercial Mortgage Trust 2007-C2), Mortgage Loan Purchase Agreement (COBALT CMBS Commercial Mortgage Trust 2006-C1)
Representations, Warranties and Covenants of Seller. (a) Seller hereby representsrepresents and warrants that it has been duly organized and is validly existing as a limited liability company in good standing in its jurisdiction of formation.
(b) Seller represents and warrants that Principal is the sole shareholder and sole beneficiary of Seller.
(c) Seller represents and warrants that it has all requisite corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder, warrants and covenants to Purchaser that the following matters are true execution, delivery and correct as performance of this Agreement by Seller have been duly and validly authorized by all necessary corporate action.
(d) Seller represents and warrants that the execution execution, delivery and performance by it of this Agreement and will also be true and correct as the consummation of the Closing, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx Xxxxxxxxx:
(a) Seller is a statutory trust duly formed and validly existing under the laws of the State of Delaware. This Agreement has been, and all the documents executed by Seller which are to be delivered to Purchaser at the Closing will be, duly authorized, executed and delivered by Seller and will be legal, valid and binding obligations of Seller enforceable against Seller in accordance with their respective terms (except to the extent that such enforcement may be limited by applicable bankruptcy, insolvency, moratorium and other principles relating to or limiting the right of contracting parties generally), will be sufficient to convey title (if they purport to do so) and transactions contemplated hereby will not violate conflict with, or constitute or result in a breach, default or violation under, any provisions contract, commitment, agreement, understanding, arrangement or restriction of any material agreement kind to which Seller is a party or to by which the Property or Seller is subject bound and will not violate, with or bound. Subject without notice or passage of time or both, any statute, law, rule, regulation or order of any court or governmental authority.
(e) Seller represents and warrants that there is no authorization, consent, order or approval of, or notice to, or filing with, any governmental authority required to be obtained as a condition to the satisfaction of Section 8(a)(i) below, no consent, waiver or approval by any third party is required in connection with the execution and delivery by Seller of this Agreement or the performance lawful consummation by Seller of the obligations sale of the Shares pursuant to be performed by Seller under this Agreement.
(bf) Except as set forth on Exhibit M attached hereto, Seller has not received from any governmental authority written notice, represents and Seller has no actual knowledge (without any duty of inquiry or investigation) of any violation of any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable to the Property, or any part thereof, warrants that will not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change to the zoning classification or any proceedings to widen or realign any streets or highways adjacent to the Property or of any condemnation proceedings.
(c) To Seller’s actual knowledge, (i) the operating statements, income and expense reports and all other contracts or documents required to be delivered to Purchaser pursuant to this Agreement are trueconstitutes a legal, correct valid and complete copies; and (ii) all contracts or documents required to be delivered to Purchaser pursuant to this Agreement are in full force and effect, without material default by any party and without any right of set-off except as disclosed in writing at the time of such delivery.
(d) There is no master lease of the Property to any affiliate binding obligation of Seller, or if such master lease exists, Seller shall cause such master lease to be terminated at Closing without Purchaser paying any termination fee. The Rent Roll attached hereto as Exhibit B is true, correct and complete enforceable against it in all material respects as of the date set forth on the Rent Roll. As of the Closing, the Rent Roll delivered at the Closing will be true, correct and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default by any party and without any right of setoffaccordance with its terms, except as expressly provided the same may be limited by bankruptcy, insolvency, reorganization or other laws affecting the terms enforceability of such Leases creditors’ rights generally and except that the remedy of specific performance or as disclosed on similar equitable relief may be subject to equitable defenses and to the Rent Roll attached hereto. The copies discretion of the Leases and other agreements with the tenants under the Leases (the “Tenants”) delivered to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating to the Real Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real Property.
(e) Exhibit J attached hereto court before which enforcement is a true and complete schedule of all of the Contracts (as hereinafter defined in Section 7), true, complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy of the management agreement currently in effect with respect to the Property. To Seller’s actual knowledge, the Contracts are in full force and effect, without material default by any party and without any claims made for the right of setoff, except as expressly provided by the terms of such Contracts or as disclosed to Purchaser in writing at the time of such delivery. The Contracts constitute the entire agreements with such vendors relating to the Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excluding, however, the Leases and Permitted Encumbrances) affecting the Property which will survive the Closing.
(f) At the Closing, there will be no outstanding contracts made by Seller for the construction or repair of any improvements to the Improvements which have not been fully paid for, and Seller shall cause to be discharged all mechanics’ or materialmen’s liens arising from any labor or materials furnished to the Improvements prior to the Closingsought.
(g) Except as set forth in Exhibit K attached heretoSeller has no liability or obligation to pay any fees or commissions to any broker, there are no pending orfinder, or agent with respect to Seller’s actual knowledge (without any duty of inquiry or investigation), threatened legal proceedings or actions of any kind or character affecting the Property or Seller’s interest therein, including, without limitation, condemnation proceedingstransactions contemplated by this Agreement.
(h) Seller represents it is entitled to receive the Purchase Price free of withholding of any tax.
(i) Seller understands that Buyer may be in possession of material non-public information regarding the Company, that such information has not received been disclosed to it by Buyer and that Seller waives any actual written noticeclaims that it may have against the Buyer in connection with Buyer’s failure to disclose such information in connection with this Agreement.
(j) If, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or after the Property relating in any way to a Release or compliance with Environmental Laws. For purposes date of this Agreement, Seller receives any distribution in cash or in kind in respect of the phrase Shares, Seller shall cause the same to be delivered to Buyer at the earlier of the Closing or receipt and in the case of an in-kind distribution to use its best efforts to cause the property delivered to be registered in Buyer’s name.
(k) If, after the date of this Agreement, but prior to the Closing, for any reason Seller is entitled to exercise any rights (including the right to vote) with respect to the Shares, Seller agrees that it shall act or refrain from acting, as may be appropriate, in respect of any request, act, decision or vote with respect to the Shares solely at the direction of Buyer.
(l) No “Environmental Lawsdirected selling efforts” shall mean any federal, state or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materials, or (as defined in Rule 902 of Regulation S under the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability U.S. Securities Act of 19801933, as amended, 42 U.S.C. § 9601, et seq. amended (the “CERCLASecurities Act”)) have been made by the Seller, any of its affiliates or any person acting on its behalf with respect to any Shares that are not registered under the Securities Act; and none of such persons has taken any actions that would result in the Resource Conservation and Recovery sale of the Shares to the Buyer under this Agreement requiring registration under the Securities Act, 00.
Appears in 2 contracts
Samples: Share Purchase Agreement (Warburg Pincus & Co), Share Purchase Agreement (Warburg Pincus & Co)
Representations, Warranties and Covenants of Seller. (a) The Seller hereby represents, represents and warrants to and covenants to Purchaser that with the following matters are true and correct Purchaser, as of the execution of this Agreement and will also be true and correct as of the Closingdate hereof, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx Xxxxxxxxxthat:
(ai) The Seller is a statutory trust corporation duly formed and organized, validly existing and in good standing under the laws of the State of Delaware. New York and the Seller has taken all necessary corporate action to authorize the execution, delivery and performance of this Agreement by it, and has the power and authority to execute, deliver and perform this Agreement and all transactions contemplated hereby.
(ii) This Agreement has been, been duly and all the documents executed by Seller which are to be delivered to Purchaser at the Closing will be, duly validly authorized, executed and delivered by Seller the Seller, all requisite action by the Seller's directors and will be legalofficers has been taken in connection therewith, valid and (assuming the due authorization, execution and delivery hereof by the Purchaser) this Agreement constitutes the valid, legal and binding obligations agreement of Seller the Seller, enforceable against the Seller in accordance with their respective terms (its terms, except to the extent that as such enforcement may be limited by applicable (A) laws relating to bankruptcy, insolvency, moratorium and fraudulent transfer, reorganization, receivership or moratorium, (B) other principles laws relating to or limiting affecting the right rights of contracting parties creditors generally, or (C) general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law), will be sufficient to convey title .
(if they purport to do soiii) The execution and delivery of this Agreement by the Seller and the Seller's performance and compliance with the terms of this Agreement will not (A) violate the Seller's certificate of incorporation or bylaws, (B) violate any provisions law or regulation or any administrative decree or order to which it is subject or (C) constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material contract, agreement or other instrument to which the Seller is a party or to by which the Property or Seller is bound, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or materially and adversely affect its performance hereunder.
(iv) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or other governmental agency or body, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or materially and adversely affect its performance hereunder.
(v) The Seller is not a party to or bound by any agreement or instrument or subject to any certificate of incorporation, bylaws or bound. Subject any other corporate restriction or any judgment, order, writ, injunction, decree, law or regulation that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the ability of the Seller to perform its obligations under this Agreement or that requires the consent of any third person to the satisfaction of Section 8(a)(i) below, no consent, waiver or approval by any third party is required in connection with the execution and delivery by Seller of this Agreement or the performance by the Seller of its obligations under this Agreement (except to the extent such consent has been obtained).
(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 or the consummation of the transactions contemplated by this Agreement except as have previously been obtained, and no bulk sale law applies to such transactions.
(vii) None of the sale of the Mortgage Loan by the Seller, the transfer of the Mortgage Loan to the Trustee, and the execution, delivery or performance of this Agreement by the Seller, results or will result in the creation or imposition of any lien on any of the Seller's assets or property that would have a material adverse effect upon the Seller's ability to perform its duties and obligations under this Agreement or materially impair the ability of the Purchaser to be performed realize on the Mortgage Loan.
(viii) There is no action, suit, proceeding or investigation pending or to the knowledge of the Seller, threatened against the Seller in any court or by or before any other governmental agency or instrumentality which would, in the Seller's good faith and reasonable judgment, prohibit its entering into this Agreement or materially and adversely affect the validity of this Agreement or the performance by the Seller of its obligations under this Agreement.
(ix) Under generally accepted accounting principles ("GAAP") and for federal income tax purposes, the Seller will report the transfer of the Mortgage Loan to the Purchaser as a sale of the Mortgage Loan to the Purchaser in exchange for consideration consisting of a cash amount equal to the Purchase Consideration. The consideration received by the Seller upon the sale of the Mortgage Loan to the Purchaser will constitute at least reasonably equivalent value and fair consideration for the Mortgage Loan. The Seller will be solvent at all relevant times prior to, and will not be rendered insolvent by, the sale of the Mortgage Loan to the Purchaser. The Seller is not selling the Mortgage Loan to the Purchaser with any intent to hinder, delay or defraud any of the creditors of the Seller.
(b) Except The Seller hereby makes the representations and warranties contained in Schedule I hereto for the benefit of the Purchaser and the Trustee for the benefit of the Certificateholders as of the Closing Date (unless a different date is specified therein), with respect to (and solely with respect to) the Mortgage Loan, subject, however, to the exceptions set forth on Exhibit M attached heretoAnnex A to Schedule I of this Agreement. If the Seller receives written notice of a Document Defect or a Breach relating to the Mortgage Loan pursuant to Section 2.03(a) of the Pooling and Servicing Agreement, then the Seller shall, not later than 90 days from receipt of such notice (or, in the case of a Document Defect or Breach relating to the Mortgage Loan not being a "qualified mortgage" within the meaning of the REMIC Provisions (a "Qualified Mortgage"), not later than 90 days from any party to the Pooling and Servicing Agreement discovering such Document Defect or Breach, provided the Seller receives such notice in a timely manner), if such Document Defect or Breach materially and adversely affects the value of the Mortgage Loan or the interests of the Certificateholders therein, cure such Document Defect or Breach, as the case may be, in all material respects, which shall include payment of losses and any Additional Trust Fund Expenses associated therewith or, if such Document Defect or Breach (other than omissions due solely to a document not having been returned by the related recording office) cannot be cured within such 90-day period, (i) repurchase the Mortgage Loan (which, for the purposes of this clause (i), shall include an REO Loan) at the applicable Purchase Price (as defined in the Pooling and Servicing Agreement) not later than the end of such 90-day period or (ii) substitute a Qualified Substitute Mortgage Loan for the Mortgage Loan (which, for purposes of this clause (ii), shall include an REO Loan) not later than the end of such 90-day period (and in no event later than the second anniversary of the Closing Date) and pay the Master Servicer for deposit into the Collection Account any Substitution Shortfall Amount in connection therewith; provided, however, that, unless the Document Defect or Breach would cause the Mortgage Loan not to be a Qualified Mortgage, if such Document Defect or Breach is capable of being cured but not within such 90-day period and the Seller has commenced and is diligently proceeding with the cure of such Document Defect or Breach within such 90-day period, the Seller shall have an additional 90 days to complete such cure (or, failing such cure, to repurchase or substitute the Mortgage Loan (which, for purposes of such repurchase or substitution, shall include an REO Loan); and provided, further, that with respect to such additional 90-day period, the Seller shall have delivered an officer's certificate to the Trustee setting forth the reason(s) such Document Defect or Breach is not received from capable of being cured within the initial 90-day period and what actions the Seller is pursuing in connection with the cure thereof and stating that the Seller anticipates that such Document Defect or Breach will be cured within the additional 90-day period; and provided, further, that no Document Defect (other than with respect to the Specially Designated Mortgage Loan Documents) shall be considered to materially and adversely affect the interests of the Certificateholders or the value of the Mortgage Loan unless the document with respect to which the Document Defect exists is required in connection with an imminent enforcement of the mortgagee's rights or remedies under the Mortgage Loan, defending any governmental authority claim asserted by any borrower or third party with respect to the Mortgage Loan, establishing the validity or priority of any lien or any collateral securing the Mortgage Loan or for any immediate servicing obligations. Notwithstanding any of the foregoing provisions of this Section 3(c), if there is a Document Defect or Breach (which Document Defect or Breach materially and adversely affects the value of the Mortgage Loan or the interests of the Certificateholders therein) with respect to one or more Mortgaged Properties with respect to the Mortgage Loan, the Seller shall not be obligated to repurchase or substitute the Mortgage Loan if (i) the affected Mortgaged Property(ies) may be released pursuant to the terms of any partial release provisions in the related Mortgage Loan documents (and such Mortgaged Property(ies) are, in fact, released) and to the extent not covered by the applicable release price (if any) required under the related Mortgage Loan documents, the Seller pays (or causes to be paid) any additional amounts necessary to cover all reasonable out-of-pocket expenses reasonably incurred by the Master Servicer, the Special Servicer, the Trustee or the Trust Fund in connection with such release, (ii) the remaining Mortgaged Property(ies) satisfy the requirements, if any, set forth in the Mortgage Loan documents and the Seller provides an opinion of counsel to the effect that such release would not cause either of REMIC I or REMIC II to fail to qualify as a REMIC under the Code or result in the imposition of any tax on "prohibited transactions" or "contributions" after the Startup Day under the REMIC Provisions and (iii) each Rating Agency then rating the Certificates shall have provided written noticeconfirmation that such release would not cause the then-current ratings of the Certificates rated by it to be qualified, downgraded or withdrawn. The foregoing provisions of this Section 3(c) notwithstanding, the Purchaser's sole remedy (subject to the last sentence of this paragraph) for a breach of representation 30 set forth on Schedule I hereto shall be the cure of such breach by the Seller, which cure shall be effected through the payment by the Seller of such costs and Seller has no actual knowledge expenses (without regard to whether such costs and expenses are material or not) specified in such representation that have not, at the time of such cure, been received by the Master Servicer or the Special Servicer from the related Mortgagor and not a repurchase or substitution of the Mortgage Loan. Following the Seller's remittance of funds in payment of such costs and expenses, the Seller shall be deemed to have cured the breach of representation 30 in all respects. To the extent any duty fees or expenses that are the subject of inquiry a cure by the Seller are subsequently obtained from the related Mortgagor, the cure payment made by the Seller shall be returned to the Seller. Notwithstanding the prior provisions of this paragraph, the Seller, acting in its sole discretion, may effect a repurchase or investigationsubstitution (in accordance with the provisions of this Section 3(c) setting forth the manner in which the Mortgage Loan may be repurchased or substituted) of any violation of any zoningthe Mortgage Loan, building, fire or health code or any other statute, ordinance, rule or regulation applicable if representation 30 set forth on Schedule I has been breached as to the PropertyMortgage Loan, or any part thereof, in lieu of paying the costs and expenses that will not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change to were the zoning classification or any proceedings to widen or realign any streets or highways adjacent to subject of the Property or breach of any condemnation proceedings.representation 30 set forth on Schedule I.
(c) To Seller’s actual knowledgeIn connection with any permitted repurchase or substitution of the Mortgage Loan contemplated hereby, upon receipt of a certificate from a Servicing Officer certifying as to the receipt of the applicable Purchase Price (as defined in the Pooling and Servicing Agreement) or Substitution Shortfall Amount(s), as applicable, in the Collection Account, and, if applicable, the delivery of the Mortgage File(s) and the Servicing File(s) for the related Qualified Substitute Mortgage Loan(s) to the Custodian and the Master Servicer, respectively, (i) the operating statements, income and expense reports and all other contracts or documents Trustee shall be required to execute and deliver such endorsements and assignments as are provided to it by the Master Servicer or the Seller, in each case without recourse, representation or warranty, as shall be delivered necessary to Purchaser pursuant to this Agreement are truevest in the Seller the legal and beneficial ownership of the repurchased Mortgage Loan or substituted Mortgage Loan, correct and complete copies; and as applicable, (ii) the Trustee, the Custodian, the Master Servicer and the Special Servicer shall each tender to the Seller, upon delivery to each of them of a receipt executed by the Seller, all contracts portions of the Mortgage File and other documents pertaining to the Mortgage Loan possessed by it, and (iii) the Master Servicer and the Special Servicer shall release to the Seller any Escrow Payments and Reserve Funds held by it in respect of the repurchased or documents required deleted Mortgage Loan. At the time a substitution is made, the Seller shall deliver the related Mortgage File to the Trustee and certify that the substitute mortgage loan is a Qualified Substitute Mortgage Loan. No substitution of a Qualified Substitute Mortgage Loan or Qualified Substitute Mortgage Loans may be delivered made in any calendar month after the Determination Date for such month. Periodic Payments due with respect to Purchaser pursuant to any Qualified Substitute Mortgage Loan after the related date of substitution shall be part of REMIC I, as applicable. No substitution of a Qualified Substitute Mortgage Loan for the Mortgage Loan shall be permitted under this Agreement are in full force and effectif, without material default by any party and without any right after such substitution, the aggregate of setthe Stated Principal Balances of all Qualified Substitute Mortgage Loans which have been substituted for the Mortgage Loan exceeds 10% of the aggregate Cut-off except as disclosed in writing at Date Balance of the time Mortgage Loan and the Other Mortgage Loans. Periodic Payments due with respect to any Qualified Substitute Mortgage Loan on or prior to the related date of such delivery.substitution shall not be part of the Trust Fund or REMIC I.
(d) There is no master lease This Section 3 provides the sole remedies available to the Purchaser, the Certificateholders, or the Trustee on behalf of the Property to Certificateholders, respecting any affiliate of Seller, Document Defect in a Mortgage File or if such master lease exists, Seller shall cause such master lease to be terminated at Closing without Purchaser paying any termination fee. The Rent Roll attached hereto as Exhibit B is true, correct and complete in all material respects as of the date set forth on the Rent Roll. As of the Closing, the Rent Roll delivered at the Closing will be true, correct and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default by any party and without any right of setoff, except as expressly provided by the terms of such Leases or as disclosed on the Rent Roll attached hereto. The copies of the Leases and other agreements with the tenants under the Leases (the “Tenants”) delivered to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating to the Real Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real Property.
(e) Exhibit J attached hereto is a true and complete schedule of all of the Contracts (as hereinafter defined in Section 7), true, complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy of the management agreement currently in effect with respect to the Property. To Seller’s actual knowledge, the Contracts are in full force and effect, without material default by any party and without any claims made for the right of setoff, except as expressly provided by the terms of such Contracts or as disclosed to Purchaser in writing at the time of such delivery. The Contracts constitute the entire agreements with such vendors relating to the Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excluding, however, the Leases and Permitted Encumbrances) affecting the Property which will survive the Closing.
(f) At the Closing, there will be no outstanding contracts made by Seller for the construction or repair Breach of any improvements to the Improvements which have not been fully paid for, and Seller shall cause to be discharged all mechanics’ representation or materialmen’s liens arising from any labor or materials furnished to the Improvements prior to the Closing.
(g) Except as warranty set forth in Exhibit K attached hereto, there are no pending or, or required to Seller’s actual knowledge (without any duty of inquiry or investigation), threatened legal proceedings or actions of any kind or character affecting the Property or Seller’s interest therein, including, without limitation, condemnation proceedings.
(h) Seller has not received any actual written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or the Property relating in any way be made pursuant to a Release or compliance with Environmental Laws. For purposes Section 3 of this Agreement, the phrase “Environmental Laws” shall mean any federal, state or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materials, or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 00.
Appears in 2 contracts
Samples: Mortgage Loan Purchase Agreement (Merrill Lynch Mortgage Trust 2005-Cki1), Mortgage Loan Purchase Agreement (Merrill Lynch Mortgage Trust 2005-Cki1)
Representations, Warranties and Covenants of Seller. (a) The Seller hereby represents, represents and warrants to and covenants to Purchaser that with the following matters are true and correct Purchaser, as of the execution of this Agreement and will also be true and correct as of the Closingdate hereof, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx Xxxxxxxxxthat:
(ai) The Seller is a statutory trust corporation duly formed and organized, validly existing and in good standing under the laws of the State of Delaware. California and the Seller has taken all necessary corporate action to authorize the execution, delivery and performance of this Agreement by it, and has the power and authority to execute, deliver and perform this Agreement and all transactions contemplated hereby.
(ii) This Agreement has been, been duly and all the documents executed by Seller which are to be delivered to Purchaser at the Closing will be, duly validly authorized, executed and delivered by Seller the Seller, all requisite action by the Seller's directors and will be legalofficers has been taken in connection therewith, valid and (assuming the due authorization, execution and delivery hereof by the Purchaser) this Agreement constitutes the valid, legal and binding obligations agreement of Seller the Seller, enforceable against the Seller in accordance with their respective terms (its terms, except to the extent that as such enforcement may be limited by applicable (A) laws relating to bankruptcy, insolvency, moratorium and fraudulent transfer, reorganization, receivership, conservatorship or moratorium, (B) other principles laws relating to or limiting affecting the right rights of contracting parties creditors generally, or (C) general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law), will be sufficient to convey title .
(if they purport to do soiii) The execution and delivery of this Agreement by the Seller and the Seller's performance and compliance with the terms of this Agreement will not (A) violate the Seller's certificate of incorporation or bylaws, (B) violate any provisions law or regulation or any administrative decree or order to which it is subject or (C) constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material contract, agreement or other instrument to which the Seller is a party or to by which the Property or Seller is bound, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or materially and adversely affect its performance hereunder.
(iv) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or other governmental agency or body, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or materially and adversely affect its performance hereunder.
(v) The Seller is not a party to or bound by any agreement or instrument or subject to any certificate of incorporation, bylaws or bound. Subject any other corporate restriction or any judgment, order, writ, injunction, decree, law or regulation that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the ability of the Seller to perform its obligations under this Agreement or that requires the consent of any third person to the satisfaction of Section 8(a)(i) below, no consent, waiver or approval by any third party is required in connection with the execution and delivery by Seller of this Agreement or the performance by the Seller of its obligations under this Agreement (except to the extent such consent has been obtained).
(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 or the consummation of the transactions contemplated by this Agreement except as have previously been obtained, and no bulk sale law applies to such transactions.
(vii) None of the sale of the Mortgage Loans by the Seller, the transfer of the Mortgage Loans to the Trustee, and the execution, delivery or performance of this Agreement by the Seller, results or will result in the creation or imposition of any lien on any of the Seller's assets or property that would have a material adverse effect upon the Seller's ability to perform its duties and obligations under this Agreement or materially impair the ability of the Purchaser to be performed realize on the Mortgage Loans.
(viii) There is no action, suit, proceeding or investigation pending or to the knowledge of the Seller, threatened against the Seller in any court or by or before any other governmental agency or instrumentality which would, in the Seller's good faith and reasonable judgment, prohibit its entering into this Agreement or materially and adversely affect the validity of this Agreement or the performance by the Seller of its obligations under this Agreement.
(bix) Except Under generally accepted accounting principles ("GAAP") and for federal income tax purposes, the Seller will report the transfer of the Mortgage Loans to the Purchaser as set forth on Exhibit M attached hereto, a sale of the Mortgage Loans to the Purchaser in exchange for consideration consisting of a cash amount equal to the Purchase Consideration. The consideration received by the Seller has not received from any governmental authority written noticeupon the sale of the Mortgage Loans to the Purchaser will constitute at least reasonably equivalent value and fair consideration for the Mortgage Loans. The Seller will be solvent at all relevant times prior to, and Seller has no actual knowledge (without any duty will not be rendered insolvent by, the sale of inquiry or investigation) of any violation of any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable the Mortgage Loans to the Property, or any part thereof, that will Purchaser. The Seller is not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change selling the Mortgage Loans to the zoning classification Purchaser with any intent to hinder, delay or defraud any proceedings to widen or realign any streets or highways adjacent to of the Property or creditors of any condemnation proceedingsthe Seller.
(cx) To Seller’s actual knowledge, (i) The Prospectus Supplement contains all the operating statements, income and expense reports and all other contracts or documents information that is required to be delivered to Purchaser provided in respect of the Seller (that arise from its role as "sponsor" (within the meaning of Regulation AB)), the Mortgage Loans, the related Mortgagors and the related Mortgaged Properties pursuant to this Agreement are true, correct and complete copies; and (ii) all contracts or documents required to be delivered to Purchaser pursuant to this Agreement are in full force and effect, without material default by any party and without any right of set-off except as disclosed in writing at the time of such delivery.
(d) There is no master lease of the Property to any affiliate of Seller, or if such master lease exists, Seller shall cause such master lease to be terminated at Closing without Purchaser paying any termination fee. The Rent Roll attached hereto as Exhibit B is true, correct and complete in all material respects as of the date set forth on the Rent Roll. As of the Closing, the Rent Roll delivered at the Closing will be true, correct and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default by any party and without any right of setoff, except as expressly provided by the terms of such Leases or as disclosed on the Rent Roll attached hereto. The copies of the Leases and other agreements with the tenants under the Leases (the “Tenants”) delivered to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating to the Real Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real Property.
(e) Exhibit J attached hereto is a true and complete schedule of all of the Contracts (as hereinafter defined in Section 7), true, complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy of the management agreement currently in effect with respect to the Property. To Seller’s actual knowledge, the Contracts are in full force and effect, without material default by any party and without any claims made for the right of setoff, except as expressly provided by the terms of such Contracts or as disclosed to Purchaser in writing at the time of such delivery. The Contracts constitute the entire agreements with such vendors relating to the Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excluding, however, the Leases and Permitted Encumbrances) affecting the Property which will survive the Closing.
(f) At the Closing, there will be no outstanding contracts made by Seller for the construction or repair of any improvements to the Improvements which have not been fully paid for, and Seller shall cause to be discharged all mechanics’ or materialmen’s liens arising from any labor or materials furnished to the Improvements prior to the Closing.
(g) Except as set forth in Exhibit K attached hereto, there are no pending or, to Seller’s actual knowledge (without any duty of inquiry or investigation), threatened legal proceedings or actions of any kind or character affecting the Property or Seller’s interest therein, including, without limitation, condemnation proceedings.
(h) Seller has not received any actual written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or the Property relating in any way to a Release or compliance with Environmental LawsRegulation AB. For purposes purpose of this Agreement, the phrase “Environmental Laws” "Regulation AB" shall mean any federalSubpart 229.1100 - Asset Backed Securities (Regulation AB), state 17 C.F.R. Sections 229.1100-229.1123, as such may be amended from time to time, and subject to such clarification and interpretation as have been provided by the Commission in the adopting release (Asset-Backed Securities, Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506-1,631 (Jan. 7, 2005)) or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materialsby the staff of the Commission, or as may be provided by the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 00Commission or its staff from time to time.
Appears in 2 contracts
Samples: Mortgage Loan Purchase Agreement (MLMT 2008-C1), Mortgage Loan Purchase Agreement (ML-CFC Commercial Mortgage Trust 2007-9)
Representations, Warranties and Covenants of Seller. (a) The Seller hereby represents, represents and warrants to and covenants to Purchaser that with the following matters are true and correct Purchaser, as of the execution of this Agreement and will also be true and correct as of the Closingdate hereof, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx Xxxxxxxxxthat:
(ai) The Seller is a statutory trust corporation duly formed and organized, validly existing and in good standing under the laws of the State of Delaware. California and the Seller has taken all necessary corporate action to authorize the execution, delivery and performance of this Agreement by it, and has the power and authority to execute, deliver and perform this Agreement and all transactions contemplated hereby.
(ii) This Agreement has been, been duly and all the documents executed by Seller which are to be delivered to Purchaser at the Closing will be, duly validly authorized, executed and delivered by Seller the Seller, all requisite action by the Seller's directors and will be legalofficers has been taken in connection therewith, valid and (assuming the due authorization, execution and delivery hereof by the Purchaser) this Agreement constitutes the valid, legal and binding obligations agreement of Seller the Seller, enforceable against the Seller in accordance with their respective terms (its terms, except to the extent that as such enforcement may be limited by applicable (A) laws relating to bankruptcy, insolvency, moratorium and fraudulent transfer, reorganization, receivership or moratorium, (B) other principles laws relating to or limiting affecting the right rights of contracting parties creditors generally, or (C) general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law), will be sufficient to convey title .
(if they purport to do soiii) The execution and delivery of this Agreement by the Seller and the Seller's performance and compliance with the terms of this Agreement will not (A) violate the Seller's certificate of incorporation or bylaws, (B) violate any provisions law or regulation or any administrative decree or order to which it is subject or (C) constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material contract, agreement or other instrument to which the Seller is a party or to by which the Property or Seller is bound, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or materially and adversely affect its performance hereunder.
(iv) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or other governmental agency or body, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or materially and adversely affect its performance hereunder.
(v) The Seller is not a party to or bound by any agreement or instrument or subject to any certificate of incorporation, bylaws or bound. Subject any other corporate restriction or any judgment, order, writ, injunction, decree, law or regulation that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the ability of the Seller to perform its obligations under this Agreement or that requires the consent of any third person to the satisfaction of Section 8(a)(i) below, no consent, waiver or approval by any third party is required in connection with the execution and delivery by Seller of this Agreement or the performance by the Seller of its obligations under this Agreement (except to the extent such consent has been obtained).
(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 or the consummation of the transactions contemplated by this Agreement except as have previously been obtained, and no bulk sale law applies to such transactions.
(vii) None of the sale of the Mortgage Loans by the Seller, the transfer of the Mortgage Loans to the Trustee, and the execution, delivery or performance of this Agreement by the Seller, results or will result in the creation or imposition of any lien on any of the Seller's assets or property that would have a material adverse effect upon the Seller's ability to perform its duties and obligations under this Agreement or materially impair the ability of the Purchaser to be performed realize on the Mortgage Loans.
(viii) There is no action, suit, proceeding or investigation pending or to the knowledge of the Seller, threatened against the Seller in any court or by or before any other governmental agency or instrumentality which would, in the Seller's good faith and reasonable judgment, prohibit its entering into this Agreement or materially and adversely affect the validity of this Agreement or the performance by the Seller of its obligations under this Agreement.
(ix) Under generally accepted accounting principles ("GAAP") and for federal income tax purposes, the Seller will report the transfer of the Mortgage Loans to the Purchaser as a sale of the Mortgage Loans to the Purchaser in exchange for consideration consisting of a cash amount equal to the Purchase Consideration. The consideration received by the Seller upon the sale of the Mortgage Loans to the Purchaser will constitute at least reasonably equivalent value and fair consideration for the Mortgage Loans. The Seller will be solvent at all relevant times prior to, and will not be rendered insolvent by, the sale of the Mortgage Loans to the Purchaser. The Seller is not selling the Mortgage Loans to the Purchaser with any intent to hinder, delay or defraud any of the creditors of the Seller.
(b) Except The Seller hereby makes the representations and warranties contained in Schedule I hereto for the benefit of the Purchaser and the Trustee for the benefit of the Certificateholders as of the Closing Date (unless a different date is specified therein), with respect to (and solely with respect to) each Mortgage Loan, subject, however, to the exceptions set forth on Exhibit M attached hereto, Seller has not received from any governmental authority written notice, and Seller has no actual knowledge (without any duty Annex A to Schedule I of inquiry or investigation) of any violation of any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable to the Property, or any part thereof, that will not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change to the zoning classification or any proceedings to widen or realign any streets or highways adjacent to the Property or of any condemnation proceedingsthis Agreement.
(c) To Seller’s actual knowledgeIf the Seller receives written notice of a Document Defect or a Breach relating to a Mortgage Loan pursuant to Section 2.03(a) of the Pooling and Servicing Agreement, then the Seller shall, not later than 90 days from receipt of such notice (or, in the case of a Document Defect or Breach relating to a Mortgage Loan not being a "qualified mortgage" within the meaning of the REMIC Provisions (a "Qualified Mortgage"), not later than 90 days from any party to the Pooling and Servicing Agreement discovering such Document Defect or Breach, provided the Seller receives such notice in a timely manner), if such Document Defect or Breach materially and adversely affects the value of the related Mortgage Loan or the interests of the Certificateholders therein, cure such Document Defect or Breach, as the case may be, in all material respects, which shall include payment of losses and any Additional Trust Fund Expenses associated therewith or, if such Document Defect or Breach (other than omissions due solely to a document not having been returned by the related recording office) cannot be cured within such 90-day period, (i) repurchase the operating statementsaffected Mortgage Loan (which, income for the purposes of this clause (i), shall include an REO Loan) at the applicable Purchase Price (as defined in the Pooling and expense reports and all other contracts Servicing Agreement) not later than the end of such 90-day period or documents required to be delivered to Purchaser pursuant to this Agreement are true, correct and complete copies; and (ii) all contracts substitute a Qualified Substitute Mortgage Loan for such affected Mortgage Loan (which, for purposes of this clause (ii), shall include an REO Loan) not later than the end of such 90-day period (and in no event later than the second anniversary of the Closing Date) and pay the Master Servicer for deposit into the Collection Account any Substitution Shortfall Amount in connection therewith; provided, however, that, unless the Document Defect or documents required Breach would cause the Mortgage Loan not to be a Qualified Mortgage, if such Document Defect or Breach is capable of being cured but not within such 90-day period and the Seller has commenced and is diligently proceeding with the cure of such Document Defect or Breach within such 90-day period, the Seller shall have an additional 90 days to complete such cure (or, failing such cure, to repurchase or substitute the related Mortgage Loan (which, for purposes of such repurchase or substitution, shall include an REO Loan)); and provided, further, that with respect to such additional 90-day period, the Seller shall have delivered an officer's certificate to Purchaser pursuant the Trustee setting forth the reason(s) such Document Defect or Breach is not capable of being cured within the initial 90-day period and what actions the Seller is pursuing in connection with the cure thereof and stating that the Seller anticipates that such Document Defect or Breach will be cured within the additional 90-day period; and provided, further, that no Document Defect (other than with respect to this Agreement are the Specially Designated Mortgage Loan Documents) shall be considered to materially and adversely affect the interests of the Certificateholders or the value of the related Mortgage Loan unless the document with respect to which the Document Defect exists is required in full force and effectconnection with an imminent enforcement of the mortgagee's rights or remedies under the related Mortgage Loan, without material default defending any claim asserted by any borrower or third party with respect to the Mortgage Loan, establishing the validity or priority of any lien or any collateral securing the Mortgage Loan or for any immediate servicing obligations.
(1) the weighted average debt service coverage ratio for all the remaining Crossed Loans for the four calendar quarters immediately preceding such repurchase or substitution is not less than the greater of (A) the weighted average debt service coverage ratio for all such Crossed Loans, including the affected Crossed Loan, for the four calendar quarters immediately preceding such repurchase or substitution and without any right (B) the weighted average debt service coverage ratio for all such Crossed Loans, including the affected Crossed Loan, as of setthe Cut-off except as disclosed in writing Date, and (2) the weighted average loan to-value ratio for the remaining Crossed Loans, determined at the time of such delivery.
(d) There is no master lease repurchase or substitution, based upon an appraisal obtained by the Special Servicer at the expense of the Property to any affiliate of Seller, or if such master lease exists, Seller shall cause not be greater than the lesser of (A) the weighted average loan-to-value ratio for all such master lease to be terminated at Closing without Purchaser paying any termination fee. The Rent Roll attached hereto as Exhibit B is trueCrossed Loans, correct and complete in all material respects as of including the date set forth on the Rent Roll. As of the Closing, the Rent Roll delivered at the Closing will be true, correct and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default by any party and without any right of setoff, except as expressly provided by the terms of such Leases or as disclosed on the Rent Roll attached hereto. The copies of the Leases and other agreements with the tenants under the Leases (the “Tenants”) delivered to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating to the Real Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real Property.
(e) Exhibit J attached hereto is a true and complete schedule of all of the Contracts (as hereinafter defined in Section 7), true, complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy of the management agreement currently in effect with respect to the Property. To Seller’s actual knowledge, the Contracts are in full force and effect, without material default by any party and without any claims made for the right of setoff, except as expressly provided by the terms of such Contracts or as disclosed to Purchaser in writing affected Crossed Loan determined at the time of repurchase or substitution, based upon an appraisal obtained by the Special Servicer at the expense of the Seller and (B) the weighted average loan- to-value ratio for all such deliveryCrossed Loans, including the affected Crossed Loan, as of the Cut-off Date; provided, that if such debt service coverage and loan-to-value criteria are satisfied, any other Crossed Loan (that is not the Crossed Loan directly affected by the subject Document Defect or Breach), shall be released from its cross-collateralization and cross-default provision so long as such Crossed Loan (that is not the Crossed Loan directly affected by the subject Document Defect or Breach) is held in the Trust Fund; and provided, further, that the repurchase or replacement of less than all such Crossed Loans and the release of any Crossed Loan from a cross-collateralization and cross-default provision shall be further subject to the delivery by the Seller to the Trustee, at the expense of the Seller, of an Opinion of Counsel to the effect that such release would not cause either of REMIC I or REMIC II to fail to qualify as a REMIC under the Code or result in the imposition of any tax on "prohibited transactions" or "contributions" after the Startup Day under the REMIC Provisions. The Contracts constitute In the entire agreements with event that one or more of such vendors other Crossed Loans satisfy the aforementioned criteria, the Seller may elect either to repurchase or substitute for only the affected Crossed Loan as to which the related Document Defect or Breach exists or to repurchase or substitute for all of the Crossed Loans in the related Crossed Loan Group. All documentation relating to the Propertytermination of the cross-collateralization provisions of a Crossed Loan being repurchased shall be prepared at the expense of the Seller and, have not been materially amendedwhere required, modified with the consent of the related borrower. For a period of two years from the Closing Date, so long as there remains any Mortgage File relating to a Mortgage Loan as to which there is any uncured Document Defect or supplementedBreach known to the Seller, except for the Seller shall provide, once every ninety days, the officer's certificate to the Trustee described above as to the reason(s) such amendments, modifications Document Defect or Breach remains uncured and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excludingthe actions being taken to pursue cure; provided, however, that, without limiting the Leases effect of the foregoing provisions of this Section 3(c), if such Document Defect or Breach shall materially and Permitted Encumbrances) affecting adversely affect the Property which will survive value of such Mortgage Loan or the Closing.
interests of the holders of the Certificates therein (f) At the Closing, there will be no outstanding contracts made by Seller for the construction or repair of any improvements subject to the Improvements which have not been fully paid forlast proviso in the sole sentence of the preceding paragraph), and the Seller shall cause to be discharged in all mechanics’ cases on or materialmen’s liens arising from any labor or materials furnished to the Improvements prior to the Closingsecond anniversary of the Closing Date either cause such Document Defect or Breach to be cured or repurchase or substitute for the affected Mortgage Loan.
(g) Except as set forth in Exhibit K attached hereto, there are no pending or, to Seller’s actual knowledge (without any duty of inquiry or investigation), threatened legal proceedings or actions of any kind or character affecting the Property or Seller’s interest therein, including, without limitation, condemnation proceedings.
(h) Seller has not received any actual written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or the Property relating in any way to a Release or compliance with Environmental Laws. For purposes of this Agreement, the phrase “Environmental Laws” shall mean any federal, state or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materials, or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 00
Appears in 2 contracts
Samples: Mortgage Loan Purchase Agreement (Merrill Lynch Mortgage Trust 2005-Cki1), Mortgage Loan Purchase Agreement (Merrill Lynch Mortgage Trust 2005-Cki1)
Representations, Warranties and Covenants of Seller. (a) The Seller hereby represents, represents and warrants to and covenants to Purchaser that with the following matters are true and correct Purchaser, as of the execution of this Agreement and will also be true and correct as of the Closingdate hereof, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx Xxxxxxxxxthat:
(ai) The Seller is a statutory trust corporation duly formed and organized, validly existing and in good standing under the laws of the State of Delaware. Delaware and the Seller has taken all necessary corporate action to authorize the execution, delivery and performance of this Agreement by it, and has the power and authority to execute, deliver and perform this Agreement and all transactions contemplated hereby.
(ii) This Agreement has been, been duly and all the documents executed by Seller which are to be delivered to Purchaser at the Closing will be, duly validly authorized, executed and delivered by Seller the Seller, all requisite action by the Seller's directors and will be legalofficers has been taken in connection therewith, valid and (assuming the due authorization, execution and delivery hereof by the Purchaser) this Agreement constitutes the valid, legal and binding obligations agreement of Seller the Seller, enforceable against the Seller in accordance with their respective terms (its terms, except to the extent that as such enforcement may be limited by applicable (A) laws relating to bankruptcy, insolvency, moratorium and fraudulent transfer, reorganization, receivership or moratorium, (B) other principles laws relating to or limiting affecting the right rights of contracting parties creditors generally, or (C) general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law), will be sufficient to convey title .
(if they purport to do soiii) The execution and delivery of this Agreement by the Seller and the Seller's performance and compliance with the terms of this Agreement will not (A) violate the Seller's certificate of incorporation or bylaws, (B) violate any provisions law or regulation or any administrative decree or order to which it is subject or (C) constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material contract, agreement or other instrument to which the Seller is a party or to by which the Property or Seller is bound, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or materially and adversely affect its performance hereunder.
(iv) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or other governmental agency or body, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or materially and adversely affect its performance hereunder.
(v) The Seller is not a party to or bound by any agreement or instrument or subject to any certificate of incorporation, bylaws or bound. Subject any other corporate restriction or any judgment, order, writ, injunction, decree, law or regulation that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the ability of the Seller to perform its obligations under this Agreement or that requires the consent of any third person to the satisfaction of Section 8(a)(i) below, no consent, waiver or approval by any third party is required in connection with the execution and delivery by Seller of this Agreement or the performance by the Seller of its obligations under this Agreement (except to the extent such consent has been obtained).
(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 or the consummation of the transactions contemplated by this Agreement except as have previously been obtained, and no bulk sale law applies to such transactions.
(vii) None of the sale of the Mortgage Loans by the Seller, the transfer of the Mortgage Loans to the Trustee, and the execution, delivery or performance of this Agreement by the Seller, results or will result in the creation or imposition of any lien on any of the Seller's assets or property that would have a material adverse effect upon the Seller's ability to perform its duties and obligations under this Agreement or materially impair the ability of the Purchaser to be performed realize on the Mortgage Loans.
(viii) There is no action, suit, proceeding or investigation pending or to the knowledge of the Seller, threatened against the Seller in any court or by or before any other governmental agency or instrumentality which would, in the Seller's good faith and reasonable judgment, prohibit its entering into this Agreement or materially and adversely affect the validity of this Agreement or the performance by the Seller of its obligations under this Agreement.
(ix) Under generally accepted accounting principles ("GAAP") and for federal income tax purposes, the Seller will report the transfer of the Mortgage Loans to the Purchaser as a sale of the Mortgage Loans to the Purchaser in exchange for consideration consisting of a cash amount equal to the Purchase Consideration. The consideration received by the Seller upon the sale of the Mortgage Loans to the Purchaser will constitute at least reasonably equivalent value and fair consideration for the Mortgage Loans. The Seller will be solvent at all relevant times prior to, and will not be rendered insolvent by, the sale of the Mortgage Loans to the Purchaser. The Seller is not selling the Mortgage Loans to the Purchaser with any intent to hinder, delay or defraud any of the creditors of the Seller.
(b) Except The Seller hereby makes the representations and warranties contained in Schedule I hereto for the benefit of the Purchaser and the Trustee for the benefit of the Certificateholders as of the Closing Date (unless a different date is specified therein), with respect to (and solely with respect to) each Mortgage Loan, subject, however, to the exceptions set forth on Exhibit M attached hereto, Seller has not received from any governmental authority written notice, and Seller has no actual knowledge (without any duty Annex A to Schedule I of inquiry or investigation) of any violation of any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable to the Property, or any part thereof, that will not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change to the zoning classification or any proceedings to widen or realign any streets or highways adjacent to the Property or of any condemnation proceedingsthis Agreement.
(c) To Seller’s actual knowledgeIf the Seller discovers or receives written notice of a Document Defect or a Breach relating to a Mortgage Loan pursuant to Section 2.03(a) of the Pooling and Servicing Agreement, then the Seller shall, not later than 90 days from such discovery or receipt of such notice (or, in the case of a Document Defect or Breach relating to a Mortgage Loan not being a "qualified mortgage" within the meaning of the REMIC Provisions (a "Qualified Mortgage"), not later than 90 days from any party to the Pooling and Servicing Agreement discovering such Document Defect or Breach, provided the Seller receives such notice in a timely manner), if such Document Defect or Breach materially and adversely affects the value of the related Mortgage Loan or the interests of the Certificateholders therein, cure such Document Defect or Breach, as the case may be, in all material respects, which shall include payment of losses and any Additional Trust Fund Expenses associated therewith or, if such Document Defect or Breach (other than omissions due solely to a document not having been returned by the related recording office) cannot be cured within such 90-day period, (i) repurchase the operating statementsaffected Mortgage Loan (which, income for the purposes of this clause (i), shall include an REO Loan) at the applicable Purchase Price (as defined in the Pooling and expense reports Servicing Agreement) not later than the end of such 90-day period or (ii) substitute a Qualified Substitute Mortgage Loan for such affected Mortgage Loan (which, for purposes of this clause (ii), shall include an REO Loan) not later than the end of such 90-day period (and all other contracts in no event later than the second anniversary of the Closing Date) and pay the Master Servicer for deposit into the Collection Account any Substitution Shortfall Amount in connection therewith; provided, however, that, unless the Document Defect or documents required Breach would cause the Mortgage Loan not to be a Qualified Mortgage, if such Document Defect or Breach is capable of being cured but not within such 90-day period and the Seller has commenced and is diligently proceeding with the cure of such Document Defect or Breach within such 90-day period, the Seller shall have an additional 90 days to complete such cure (or, failing such cure, to repurchase or substitute the related Mortgage Loan (which, for purposes of such repurchase or substitution, shall include an REO Loan)); and provided, further, that with respect to such additional 90-day period, the Seller shall have delivered an officer's certificate to Purchaser pursuant the Trustee setting forth the reason(s) such Document Defect or Breach is not capable of being cured within the initial 90-day period and what actions the Seller is pursuing in connection with the cure thereof and stating that the Seller anticipates that such Document Defect or Breach will be cured within the additional 90-day period; and provided, further, that no Document Defect (other than with respect to a Specially Designated Mortgage Loan Document) shall be considered to materially and adversely affect the interests of the Certificateholders or the value of the related Mortgage Loan unless the document with respect to which the Document Defect exists is required in connection with an imminent enforcement of the mortgagee's rights or remedies under the related Mortgage Loan, defending any claim asserted by any borrower or third party with respect to the Mortgage Loan, establishing the validity or priority of any lien on any collateral securing the Mortgage Loan or for any immediate servicing obligations. A Document Defect or Breach (which Document Defect or Breach materially and adversely affects the value of the related Mortgage Loan or the interests of the Certificateholders therein) as to a Mortgage Loan that is cross-collateralized and cross-defaulted with one or more other Mortgage Loans (each, a "Crossed Loan" and such Crossed Loans, collectively, a "Crossed Loan Group"), which Document Defect or Breach does not constitute a Document Defect or Breach, as the case may be, as to any other Crossed Loan in such Crossed Loan Group (without regard to this Agreement paragraph) and is not cured as provided for above, shall be deemed to constitute a Document Defect or Breach, as the case may be, as to each other Crossed Loan in the subject
(1) the weighted average debt service coverage ratio for all the remaining Crossed Loans for the four calendar quarters immediately preceding such repurchase or substitution is not less than the weighted average debt service coverage ratio for all such Crossed Loans, including the affected Crossed Loan, for the four calendar quarters immediately preceding such repurchase or substitution, and (2) the weighted average loan to-value ratio for the remaining Crossed Loans determined at the time of repurchase or substitution based upon an appraisal obtained by the Special Servicer at the expense of the Seller shall not be greater than the weighted average loan-to-value ratio for all such Crossed Loans, including the affected Crossed Loan determined at the time of repurchase or substitution based upon an appraisal obtained by the Special Servicer at the expense of the Seller; provided, that if such debt service coverage and loan-to-value criteria are truesatisfied, correct any other Crossed Loan (that is not the Crossed Loan directly affected by the subject Document Defect or Breach), shall be released from its cross-collateralization and complete copiescross-default provision so long as such Crossed Loan (that is not the Crossed Loan directly affected by the subject Document Defect or Breach) is held in the Trust Fund; and provided, further, that the repurchase or replacement of less than all such Crossed Loans and the release of any Crossed Loan from a cross-collateralization and cross-default provision shall be further subject to (i) the delivery by the Seller to the Trustee, at the expense of the Seller, of an Opinion of Counsel to the effect that such release would not cause either of REMIC I or REMIC II to fail to qualify as a REMIC under the Code or result in the imposition of any tax on "prohibited transactions" or "contributions" after the Startup Day under the REMIC Provisions and (ii) the consent of the Controlling Class Representative (if one is then acting), which consent shall not be unreasonably withheld or delayed. In the event that one or more of such other Crossed Loans satisfy the aforementioned criteria, the Seller may elect either to repurchase or substitute for only the affected Crossed Loan as to which the related Document Defect or Breach exists or to repurchase or substitute for all contracts of the Crossed Loans in the related Crossed Loan Group. All documentation relating to the termination of the cross-collateralization provisions of a Crossed Loan being repurchased shall be prepared at the expense of the Seller and, where required, with the consent of the related borrower. For a period of two years from the Closing Date, so long as there remains any Mortgage File relating to a Mortgage Loan as to which there is any uncured Document Defect or documents required Breach known to the Seller, the Seller shall provide, once every ninety days, the officer's certificate to the Trustee described above as to the reason(s) such Document Defect or Breach remains uncured and as to the actions being taken to pursue cure; provided, however, that, without limiting the effect of the foregoing provisions of this Section 3(c), if such Document Defect or Breach shall materially and adversely affect the value of such Mortgage Loan or the interests of the holders of the Certificates therein (subject to the last proviso in the sole sentence of the preceding paragraph), the Seller shall in all cases on or prior to the second anniversary of the Closing Date either cause such Document Defect or Breach to be delivered to Purchaser pursuant to this Agreement are in full force and effect, without material default by any party and without any right of set-off except as disclosed in writing at cured or repurchase or substitute for the time of such delivery.
(d) There is no master lease of the Property to any affiliate of Seller, or if such master lease exists, Seller shall cause such master lease to be terminated at Closing without Purchaser paying any termination feeaffected Mortgage Loan. The Rent Roll attached hereto delivery of a commitment to issue a policy of lender's title insurance as Exhibit B is true, correct and complete described in all material respects as of the date representation 8 set forth on the Rent Roll. As Schedule I hereto in lieu of the Closing, the Rent Roll delivered at the Closing will be true, correct and complete. The copies delivery of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default by any party and without any right policy of setoff, except as expressly provided by the terms of such Leases lender's title insurance shall not be considered a Document Defect or as disclosed on the Rent Roll attached hereto. The copies of the Leases and other agreements with the tenants under the Leases (the “Tenants”) delivered to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating to the Real Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real Property.
(e) Exhibit J attached hereto is a true and complete schedule of all of the Contracts (as hereinafter defined in Section 7), true, complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy of the management agreement currently in effect Breach with respect to any Mortgage File if such actual policy of insurance is delivered to the PropertyTrustee or a Custodian on its behalf not later than the 90th day following the Closing Date. To Seller’s actual knowledge, the Contracts are extent that the Seller is required to repurchase or substitute for a Crossed Loan hereunder in full force and effect, without material default by any party and without any claims made for the right of setoff, except as expressly provided by manner prescribed above in this Section 3(c) while the terms of such Contracts or as disclosed to Purchaser in writing at the time of such delivery. The Contracts constitute the entire agreements with such vendors relating to the Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excluding, however, the Leases and Permitted Encumbrances) affecting the Property which will survive the Closing.
(f) At the Closing, there will be no outstanding contracts made by Seller for the construction or repair of any improvements to the Improvements which have not been fully paid for, and Seller shall cause to be discharged all mechanics’ or materialmen’s liens arising from any labor or materials furnished to the Improvements prior to the Closing.
(g) Except as set forth in Exhibit K attached hereto, there are no pending or, to Seller’s actual knowledge (without any duty of inquiry or investigation), threatened legal proceedings or actions of any kind or character affecting the Property or Seller’s interest therein, including, without limitation, condemnation proceedings.
(h) Seller has not received any actual written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or the Property relating in any way to a Release or compliance with Environmental Laws. For purposes of this Agreement, the phrase “Environmental Laws” shall mean any federal, state or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materials, or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 00Trustee continues
Appears in 2 contracts
Samples: Mortgage Loan Purchase Agreement (Merrill Lynch Mortgage Trust 2005-McP1), Mortgage Loan Purchase Agreement (Merrill Lynch Mortgage Trust 2005-McP1)
Representations, Warranties and Covenants of Seller. (a) The Seller hereby represents, represents and warrants to and covenants to Purchaser that with the following matters are true and correct Purchaser, as of the execution of this Agreement and will also be true and correct as of the Closingdate hereof, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx Xxxxxxxxxthat:
(ai) The Seller is a statutory trust corporation duly formed and organized, validly existing and in good standing under the laws of the State of Delaware. Delaware and the Seller has taken all necessary corporate action to authorize the execution, delivery and performance of this Agreement by it, and has the power and authority to execute, deliver and perform this Agreement and all transactions contemplated hereby.
(ii) This Agreement has been, been duly and all the documents executed by Seller which are to be delivered to Purchaser at the Closing will be, duly validly authorized, executed and delivered by Seller the Seller, all requisite action by the Seller's directors and will be legalofficers has been taken in connection therewith, valid and (assuming the due authorization, execution and delivery hereof by the Purchaser) this Agreement constitutes the valid, legal and binding obligations agreement of Seller the Seller, enforceable against the Seller in accordance with their respective terms (its terms, except to the extent that as such enforcement may be limited by applicable (A) laws relating to bankruptcy, insolvency, moratorium and fraudulent transfer, reorganization, receivership or moratorium, (B) other principles laws relating to or limiting affecting the right rights of contracting parties creditors generally, or (C) general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law), will be sufficient to convey title .
(if they purport to do soiii) The execution and delivery of this Agreement by the Seller and the Seller's performance and compliance with the terms of this Agreement will not (A) violate the Seller's certificate of incorporation or bylaws, (B) violate any provisions law or regulation or any administrative decree or order to which it is subject or (C) constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material contract, agreement or other instrument to which the Seller is a party or to by which the Property or Seller is bound, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or materially and adversely affect its performance hereunder.
(iv) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or other governmental agency or body, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or materially and adversely affect its performance hereunder.
(v) The Seller is not a party to or bound by any agreement or instrument or subject to any certificate of incorporation, bylaws or bound. Subject any other corporate restriction or any judgment, order, writ, injunction, decree, law or regulation that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the ability of the Seller to perform its obligations under this Agreement or that requires the consent of any third person to the satisfaction of Section 8(a)(i) below, no consent, waiver or approval by any third party is required in connection with the execution and delivery by Seller of this Agreement or the performance by the Seller of its obligations under this Agreement (except to the extent such consent has been obtained).
(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 or the consummation of the transactions contemplated by this Agreement except as have previously been obtained, and no bulk sale law applies to such transactions.
(vii) None of the sale of the Mortgage Loans by the Seller, the transfer of the Mortgage Loans to the Trustee, and the execution, delivery or performance of this Agreement by the Seller, results or will result in the creation or imposition of any lien on any of the Seller's assets or property that would have a material adverse effect upon the Seller's ability to perform its duties and obligations under this Agreement or materially impair the ability of the Purchaser to be performed realize on the Mortgage Loans.
(viii) There is no action, suit, proceeding or investigation pending or to the knowledge of the Seller, threatened against the Seller in any court or by or before any other governmental agency or instrumentality which would, in the Seller's good faith and reasonable judgment, prohibit its entering into this Agreement or materially and adversely affect the validity of this Agreement or the performance by the Seller of its obligations under this Agreement.
(ix) Under generally accepted accounting principles ("GAAP") and for federal income tax purposes, the Seller will report the transfer of the Mortgage Loans to the Purchaser as a sale of the Mortgage Loans to the Purchaser in exchange for consideration consisting of a cash amount equal to the Purchase Consideration. The consideration received by the Seller upon the sale of the Mortgage Loans to the Purchaser will constitute at least reasonably equivalent value and fair consideration for the Mortgage Loans. The Seller will be solvent at all relevant times prior to, and will not be rendered insolvent by, the sale of the Mortgage Loans to the Purchaser. The Seller is not selling the Mortgage Loans to the Purchaser with any intent to hinder, delay or defraud any of the creditors of the Seller.
(b) Except The Seller hereby makes the representations and warranties contained in Schedule I hereto for the benefit of the Purchaser and the Trustee for the benefit of the Certificateholders as of the Closing Date (unless a different date is specified therein), with respect to (and solely with respect to) each Mortgage Loan, subject, however, to the exceptions set forth on Exhibit M attached hereto, Seller has not received from any governmental authority written notice, and Seller has no actual knowledge (without any duty Annex A to Schedule I of inquiry or investigation) of any violation of any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable to the Property, or any part thereof, that will not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change to the zoning classification or any proceedings to widen or realign any streets or highways adjacent to the Property or of any condemnation proceedingsthis Agreement.
(c) To Seller’s actual knowledgeIf the Seller receives written notice of a Document Defect or a Breach relating to a Mortgage Loan pursuant to Section 2.03(a) of the Pooling and Servicing Agreement, then the Seller shall, not later than 90 days from receipt of such notice (or, in the case of a Document Defect or Breach relating to a Mortgage Loan not being a "qualified mortgage" within the meaning of the REMIC Provisions (a "Qualified Mortgage"), not later than 90 days from any party to the Pooling and Servicing Agreement discovering such Document Defect or Breach, provided the Seller receives such notice in a timely manner), if such Document Defect or Breach materially and adversely affects the value of the related Mortgage Loan or the interests of the Certificateholders therein, cure such Document Defect or Breach, as the case may be, in all material respects, which shall include payment of losses and any Additional Trust Fund Expenses associated therewith or, if such Document Defect or Breach (other than omissions due solely to a document not having been returned by the related recording office) cannot be cured within such 90-day period, (i) repurchase the operating statementsaffected Mortgage Loan (which, income for the purposes of this clause (i), shall include an REO Loan) at the applicable Purchase Price (as defined in the Pooling and expense reports and all other contracts Servicing Agreement) not later than the end of such 90-day period or documents required to be delivered to Purchaser pursuant to this Agreement are true, correct and complete copies; and (ii) all contracts substitute a Qualified Substitute Mortgage Loan for such affected Mortgage Loan (which, for purposes of this clause (ii), shall include an REO Loan) not later than the end of such 90-day period (and in no event later than the second anniversary of the Closing Date) and pay the Master Servicer for deposit into the Collection Account any Substitution Shortfall Amount in connection therewith; provided, however, that, unless the Document Defect or documents required Breach would cause the Mortgage Loan not to be a Qualified Mortgage, if such Document Defect or Breach is capable of being cured but not within such 90-day period and the Seller has commenced and is diligently proceeding with the cure of such Document Defect or Breach within such 90-day period, the Seller shall have an additional 90 days to complete such cure (or, failing such cure, to repurchase or substitute the related Mortgage Loan (which, for purposes of such repurchase or substitution, shall include an REO Loan)); and provided, further, that with respect to such additional 90-day period, the Seller shall have delivered an officer's certificate to Purchaser pursuant the Trustee setting forth the reason(s) such Document Defect or Breach is not capable of being cured within the initial 90-day period and what actions the Seller is pursuing in connection with the cure thereof and stating that the Seller anticipates that such Document Defect or Breach will be cured within the additional 90-day period; and provided, further, that no Document Defect (other than with respect to the Specially Designated Mortgage Loan Documents) shall be considered to materially and adversely affect the interests of the Certificateholders or the value of the related Mortgage Loan unless the document with respect to which the Document Defect exists is required in connection with an imminent enforcement of the mortgagee's rights or remedies under the related Mortgage Loan, defending any claim asserted by any borrower or third party with respect to the Mortgage Loan, establishing the validity or priority of any lien or any collateral securing the Mortgage Loan or for any immediate servicing obligations. A Document Defect or Breach (which Document Defect or Breach materially and adversely affects the value of the related Mortgage Loan or the interests of the Certificateholders therein) as to a Mortgage Loan that is cross-collateralized and cross-defaulted with one or more other Mortgage Loans (each, a "Crossed Loan" and such Crossed Loans, collectively, a "Crossed Loan Group"), which Document Defect or Breach does not constitute a Document Defect or Breach, as the case may be, as to any other Crossed Loan in such Crossed Loan Group (without regard to this Agreement are paragraph) and is not cured as provided for above, shall be deemed to constitute a Document Defect or Breach, as the case may be, as to each other Crossed Loan in full force the subject
(1) the weighted average debt service coverage ratio for all the remaining Crossed Loans for the four calendar quarters immediately preceding such repurchase or substitution is not less than the greater of (A) the weighted average debt service coverage ratio for all such Crossed Loans, including the affected Crossed Loan, for the four calendar quarters immediately preceding such repurchase or substitution and effect(B) the weighted average debt service coverage ratio for all such Crossed Loans, without material default by any party and without any right including the affected Crossed Loan, as of setthe Cut-off except as disclosed in writing Date, and (2) the weighted average loan to-value ratio for the remaining Crossed Loans, determined at the time of such delivery.
(d) There is no master lease repurchase or substitution, based upon an appraisal obtained by the Special Servicer at the expense of the Property to any affiliate of Seller, or if such master lease exists, Seller shall cause not be greater than the lesser of (A) the weighted average loan-to-value ratio for all such master lease to be terminated at Closing without Purchaser paying any termination fee. The Rent Roll attached hereto as Exhibit B is trueCrossed Loans, correct and complete in all material respects as of including the date set forth on the Rent Roll. As of the Closing, the Rent Roll delivered at the Closing will be true, correct and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default by any party and without any right of setoff, except as expressly provided by the terms of such Leases or as disclosed on the Rent Roll attached hereto. The copies of the Leases and other agreements with the tenants under the Leases (the “Tenants”) delivered to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating to the Real Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real Property.
(e) Exhibit J attached hereto is a true and complete schedule of all of the Contracts (as hereinafter defined in Section 7), true, complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy of the management agreement currently in effect with respect to the Property. To Seller’s actual knowledge, the Contracts are in full force and effect, without material default by any party and without any claims made for the right of setoff, except as expressly provided by the terms of such Contracts or as disclosed to Purchaser in writing affected Crossed Loan determined at the time of repurchase or substitution, based upon an appraisal obtained by the Special Servicer at the expense of the Seller and (B) the weighted average loan-to-value ratio for all such deliveryCrossed Loans, including the affected Crossed Loan, as of the Cut-off Date; provided, that if such debt service coverage and loan-to-value criteria are satisfied, any other Crossed Loan (that is not the Crossed Loan directly affected by the subject Document Defect or Breach), shall be released from its cross-collateralization and cross-default provision so long as such Crossed Loan (that is not the Crossed Loan directly affected by the subject Document Defect or Breach) is held in the Trust Fund; and provided, further, that the repurchase or replacement of less than all such Crossed Loans and the release of any Crossed Loan from a cross-collateralization and cross-default provision shall be further subject to the delivery by the Seller to the Trustee, at the expense of the Seller, of an Opinion of Counsel to the effect that such release would not cause either of REMIC I or REMIC II to fail to qualify as a REMIC under the Code or result in the imposition of any tax on "prohibited transactions" or "contributions" after the Startup Day under the REMIC Provisions. The Contracts constitute In the entire agreements with event that one or more of such vendors other Crossed Loans satisfy the aforementioned criteria, the Seller may elect either to repurchase or substitute for only the affected Crossed Loan as to which the related Document Defect or Breach exists or to repurchase or substitute for all of the Crossed Loans in the related Crossed Loan Group. All documentation relating to the Propertytermination of the cross-collateralization provisions of a Crossed Loan being repurchased shall be prepared at the expense of the Seller and, have not been materially amendedwhere required, modified with the consent of the related borrower. For a period of two years from the Closing Date, so long as there remains any Mortgage File relating to a Mortgage Loan as to which there is any uncured Document Defect or supplementedBreach known to the Seller, except for the Seller shall provide, once every ninety days, the officer's certificate to the Trustee described above as to the reason(s) such amendments, modifications Document Defect or Breach remains uncured and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excludingthe actions being taken to pursue cure; provided, however, that, without limiting the Leases effect of the foregoing provisions of this Section 3(c), if such Document Defect or Breach shall materially and Permitted Encumbrances) affecting adversely affect the Property which will survive value of such Mortgage Loan or the Closing.
interests of the holders of the Certificates therein (f) At the Closing, there will be no outstanding contracts made by Seller for the construction or repair of any improvements subject to the Improvements which have not been fully paid forlast proviso in the sole sentence of the preceding paragraph), and the Seller shall cause to be discharged in all mechanics’ cases on or materialmen’s liens arising from any labor or materials furnished to the Improvements prior to the Closing.
second anniversary of the Closing Date either cause such Document Defect or Breach to be cured or repurchase or substitute for the affected Mortgage Loan. To the extent that the Seller is required to repurchase or substitute for a Crossed Loan hereunder in the manner prescribed above in this Section 3(c) while the Trustee continues to hold any other Crossed Loans in such Crossed Loan Group, the Seller and the Purchaser shall not enforce any remedies against the other's Primary Collateral (g) Except as set forth in Exhibit K attached hereto, there are no pending or, to Seller’s actual knowledge (without any duty of inquiry or investigationdefined below), threatened legal proceedings or actions of any kind or character affecting but each is permitted to exercise remedies against the Property or Seller’s interest therein, including, without limitation, condemnation proceedings.
(h) Seller has not received any actual written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or the Property relating in any way to a Release or compliance with Environmental Laws. For purposes of this Agreement, the phrase “Environmental Laws” shall mean any federal, state or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materials, or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 00Primary Collateral securing its respective Crossed
Appears in 2 contracts
Samples: Mortgage Loan Purchase Agreement (Merrill Lynch Mortgage Trust 2005-Cki1), Mortgage Loan Purchase Agreement (Merrill Lynch Mortgage Trust 2005-Cki1)
Representations, Warranties and Covenants of Seller. (a) The Seller hereby represents, represents and warrants to and covenants to Purchaser that with the following matters are true and correct Purchaser, as of the execution of this Agreement and will also be true and correct as of the Closingdate hereof, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx Xxxxxxxxxthat:
(ai) The Seller is a statutory trust duly formed national banking association organized and validly existing and in good standing under the laws of the State United States and possesses all requisite authority, power, licenses, permits and franchises to carry on its business as currently conducted by it and to execute, deliver and comply with its obligations under the terms of Delaware. this Agreement;
(ii) This Agreement has been, been duly and all the documents executed by Seller which are to be delivered to Purchaser at the Closing will be, duly validly authorized, executed and delivered by the Seller and, assuming due authorization, execution and will be delivery hereof by the Purchaser, constitutes a legal, valid and binding obligations obligation of Seller the Seller, enforceable against the Seller in accordance with their respective terms (its terms, except to the extent that as such enforcement may be limited by applicable bankruptcy, insolvency, reorganization, receivership, moratorium and other laws affecting the enforcement of creditors' rights in general, as they may be applied in the context of the insolvency of a national banking association, and by general equity principles relating to (regardless of whether such enforcement is considered in a proceeding in equity or limiting the right of contracting parties generallyat law), will be sufficient and by public policy considerations underlying the securities laws, to convey title (if they the extent that such public policy considerations limit the enforceability of the provisions of this Agreement which purport to do soprovide indemnification from liabilities under applicable securities laws;
(iii) The execution and delivery of this Agreement by the Seller and the Seller's performance and compliance with the terms of this Agreement will not (A) violate the Seller's organizational documents, (B) violate any provisions law or regulation or any administrative decree or order to which it is subject or (C) constitute a material default (or an event which, with notice or lapse of time, or both, would constitute a material default) under, or result in the breach of, any material contract, agreement or other instrument to which the Seller is a party or to by which the Property or Seller is bound, which violation, default or breach, in the case of either clause (iii)(B) or (iii)(C) might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the financial condition or the operations of the Seller or its properties (taken as a whole) or have consequences that would materially and adversely affect its performance hereunder;
(iv) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or other governmental agency or body, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the financial condition or the operations of the Seller or its properties (taken as a whole) or have consequences that would materially and adversely affect its performance hereunder;
(v) The Seller is not a party to or bound by any agreement or instrument or subject to any other corporate restriction or bound. Subject any judgment, order, writ, injunction, decree, law or regulation that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the ability of the Seller to perform its obligations under this Agreement or that requires the consent of any third person to the satisfaction of Section 8(a)(i) below, no consent, waiver or approval by any third party is required in connection with the execution and delivery by Seller of this Agreement or the performance by the Seller of its obligations under this Agreement (except to the extent such consent has been obtained);
(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 or the consummation of the transactions involving the Seller contemplated by this Agreement except as have previously been obtained, and no bulk sale law applies to such transactions;
(vii) No litigation is pending or, to the Seller's knowledge, threatened against the Seller that would, in the Seller's good faith and reasonable judgment, prohibit its entering into this Agreement or materially and adversely affect the performance by the Seller of its obligations to be performed by Seller under this Agreement; and
(viii) For purposes of accounting under generally accepted accounting principles ("GAAP"), and for federal income tax purposes, the Seller will report the transfer of the Mortgage Loans to the Purchaser as a sale of the Mortgage Loans to the Purchaser in exchange for consideration contemplated by this Agreement. The consideration received by the Seller upon the sale of the Mortgage Loans to the Purchaser will constitute at least reasonably equivalent value and fair consideration for the Mortgage Loans. The Seller will be solvent at all relevant times prior to, and will not be rendered insolvent by, the sale of the Mortgage Loans to the Purchaser. The Seller is not transferring the Mortgage Loans to the Purchaser with any intent to hinder, delay or defraud any of the creditors of the Seller or on account of an antecedent debt.
(b) Except as The Seller hereby makes, on the date hereof and on the Closing Date, the representations and warranties contained in Schedule I and Schedule II hereto with respect to each Mortgage Loan, for the benefit of the Purchaser, which representations and warranties are subject to the exceptions set forth on Exhibit M attached hereto, Seller has not received from any governmental authority written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) Schedule III. References in this Agreement to "Breach" mean a breach of any violation of any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable to the Property, or any part thereof, that will not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change to the zoning classification or any proceedings to widen or realign any streets or highways adjacent to the Property or of any condemnation proceedings.
(c) To Seller’s actual knowledge, (i) the operating statements, income such representations and expense reports and all other contracts or documents required to be delivered to Purchaser warranties made pursuant to this Agreement are true, correct and complete copies; and (iiSection 3(b) all contracts or documents required to be delivered to Purchaser pursuant to this Agreement are in full force and effect, without material default by any party and without any right of set-off except as disclosed in writing at the time of such delivery.
(d) There is no master lease of the Property to any affiliate of Seller, or if such master lease exists, Seller shall cause such master lease to be terminated at Closing without Purchaser paying any termination fee. The Rent Roll attached hereto as Exhibit B is true, correct and complete in all material respects as of the date set forth on the Rent Roll. As of the Closing, the Rent Roll delivered at the Closing will be true, correct and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default by any party and without any right of setoff, except as expressly provided by the terms of such Leases or as disclosed on the Rent Roll attached hereto. The copies of the Leases and other agreements with the tenants under the Leases (the “Tenants”) delivered to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating to the Real Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real Property.
(e) Exhibit J attached hereto is a true and complete schedule of all of the Contracts (as hereinafter defined in Section 7), true, complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy of the management agreement currently in effect with respect to the Property. To Seller’s actual knowledge, the Contracts are in full force and effect, without material default by any party and without any claims made for the right of setoff, except as expressly provided by the terms of such Contracts or as disclosed to Purchaser in writing at the time of such delivery. The Contracts constitute the entire agreements with such vendors relating to the Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excluding, however, the Leases and Permitted Encumbrances) affecting the Property which will survive the ClosingMortgage Loan.
(f) At the Closing, there will be no outstanding contracts made by Seller for the construction or repair of any improvements to the Improvements which have not been fully paid for, and Seller shall cause to be discharged all mechanics’ or materialmen’s liens arising from any labor or materials furnished to the Improvements prior to the Closing.
(g) Except as set forth in Exhibit K attached hereto, there are no pending or, to Seller’s actual knowledge (without any duty of inquiry or investigation), threatened legal proceedings or actions of any kind or character affecting the Property or Seller’s interest therein, including, without limitation, condemnation proceedings.
(h) Seller has not received any actual written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or the Property relating in any way to a Release or compliance with Environmental Laws. For purposes of this Agreement, the phrase “Environmental Laws” shall mean any federal, state or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materials, or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 00
Appears in 2 contracts
Samples: Mortgage Loan Purchase Agreement (Citigroup Commercial Mortgage Trust 2006-C5), Mortgage Loan Purchase Agreement (Citigroup Commercial Mortgage Trust 2006-C5)
Representations, Warranties and Covenants of Seller. (a) The Seller hereby represents, represents and warrants to and covenants to Purchaser that with the following matters are true and correct Purchaser, as of the execution of this Agreement and will also be true and correct as of the Closingdate hereof, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx Xxxxxxxxxthat:
(ai) The Seller is a statutory trust national banking association duly formed organized and validly existing under the laws of the State United States of Delaware. America, is duly qualified as a foreign organization in good standing in all jurisdictions to the extent such qualification is necessary to hold and sell the Mortgage Loans or otherwise comply with its obligations under this Agreement, except where the failure to be so qualified would not have a material adverse effect on its ability to perform its obligations hereunder, and possesses all requisite authority and power to carry on its business as currently conducted by it and to execute, deliver and comply with its obligations under the terms of this Agreement.
(ii) This Agreement has been, been duly and all the documents executed by Seller which are to be delivered to Purchaser at the Closing will be, duly validly authorized, executed and delivered by the Seller and, assuming due authorization, execution and will be delivery hereof by the Purchaser, constitutes a legal, valid and binding obligations obligation of Seller the Seller, enforceable against the Seller in accordance with their respective terms (its terms, except to the extent that as such enforcement may be limited by applicable (A) bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws affecting the enforcement of creditors' rights in general, and other (B) general equity principles relating to (regardless of whether such enforcement is considered in a proceeding in equity or limiting at law).
(iii) The execution and delivery of this Agreement by the right Seller and the Seller's performance and compliance with the terms of contracting parties generally), will be sufficient to convey title (if they purport to do so) and this Agreement will not (A) violate the Seller's organizational documents, (B) violate any provisions law or regulation or any administrative decree or order to which the Seller is subject or (C) constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material contract, agreement or other instrument to which the Seller is a party or to by which the Property or Seller is subject bound.
(iv) The Seller is not in default with respect to any order or bound. Subject decree of any court or any order, regulation or demand of any federal, state, municipal or other governmental agency or body, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect its performance hereunder.
(v) The Seller is not a party to the satisfaction of Section 8(a)(i) below, no consent, waiver or approval bound by any agreement or instrument or subject to any organizational document or any other corporate restriction or any judgment, order, writ, injunction, decree, law or regulation that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the ability of the Seller to perform its obligations under this Agreement or that requires the consent of any third party is required in connection with person to the execution and delivery by Seller of this Agreement by the Seller or the performance by the Seller of the its obligations to be performed by Seller under this Agreement.
(vi) Except for the recordation and/or filing of assignments and other transfer documents with respect to the Mortgage Loans, as contemplated by Section 2(d), no consent, approval, authorization or order of, registration or filing with, or notice to, 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; and no bulk sale law applies to such transactions.
(vii) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller that would, in the Seller's good faith and reasonable judgment, prohibit its entering into this Agreement or materially and adversely affect the performance by the Seller of its obligations under this Agreement.
(viii) The Seller intends to treat the transfer of the Mortgage Loans to the Purchaser as a sale for accounting and tax purposes. In connection with the foregoing, the Seller shall cause all of its records to reflect such transfer as a sale (as opposed to a secured loan). The consideration received by the Seller upon the sale of the Mortgage Loans to the Purchaser will constitute at least reasonably equivalent value and fair consideration for the Mortgage Loans. The Seller will be solvent at all relevant times prior to, and will not be rendered insolvent by, the sale of the Mortgage Loans to the Purchaser. The Seller is not selling the Mortgage Loans to the Purchaser with any intent to hinder, delay or defraud any of the creditors of the Seller. After giving effect to its transfer of the Mortgage Loans to the Purchaser, as provided herein, the value of the Seller's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Seller's debts and obligations, including contingent and unliquidated debts and obligations of the Seller, and the Seller will not be left with unreasonably small assets or capital with which to engage in and conduct its business. The Mortgage Loans do not constitute all or substantially all of the assets of the Seller. The Seller does not intend to, and does not believe that it will, incur debts or obligations beyond its ability to pay such debts and obligations as they mature.
(ix) No proceedings looking toward liquidation, dissolution or bankruptcy of the Seller are pending or contemplated.
(b) Except The Seller hereby makes, for the benefit of the Purchaser, with respect to each Mortgage Loan, as of the Closing Date or as of such other date expressly set forth therein, each of the representations and warranties set forth on Exhibit M B attached hereto, Seller has not received from any governmental authority written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any violation of any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable to the Property, or any part thereof, that will not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change to the zoning classification or any proceedings to widen or realign any streets or highways adjacent to the Property or of any condemnation proceedings.
(c) To Seller’s actual knowledge, (i) the operating statements, income and expense reports and all other contracts or documents required to be delivered to Purchaser pursuant to this Agreement are true, correct and complete copies; and (ii) all contracts or documents required to be delivered to Purchaser pursuant to this Agreement are in full force and effect, without material default by any party and without any right of set-off except as disclosed in writing at the time of such delivery.
(d) There is no master lease of the Property to any affiliate of Seller, or if such master lease exists, Seller shall cause such master lease to be terminated at Closing without Purchaser paying any termination fee. The Rent Roll attached hereto as Exhibit B is true, correct and complete in all material respects as of the date otherwise set forth on the Rent Roll. As of the Closing, the Rent Roll delivered at the Closing will be true, correct and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default by any party and without any right of setoff, except as expressly provided by the terms of such Leases or as disclosed on the Rent Roll Exhibit C attached hereto. The copies of the Leases and other agreements with the tenants under the Leases (the “Tenants”) delivered to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating to the Real Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real Property.
(e) Exhibit J attached hereto is a true and complete schedule of all of the Contracts (as hereinafter defined in Section 7), true, complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy of the management agreement currently in effect with respect to the Property. To Seller’s actual knowledge, the Contracts are in full force and effect, without material default by any party and without any claims made for the right of setoff, except as expressly provided by the terms of such Contracts or as disclosed to Purchaser in writing at the time of such delivery. The Contracts constitute the entire agreements with such vendors relating to the Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excluding, however, the Leases and Permitted Encumbrances) affecting the Property which will survive the Closing.
(f) At the Closing, there will be no outstanding contracts made by Seller for the construction or repair of any improvements to the Improvements which have not been fully paid for, and Seller shall cause to be discharged all mechanics’ or materialmen’s liens arising from any labor or materials furnished to the Improvements prior to the Closing.
(g) Except as set forth in Exhibit K attached hereto, there are no pending or, to Seller’s actual knowledge (without any duty of inquiry or investigation), threatened legal proceedings or actions of any kind or character affecting the Property or Seller’s interest therein, including, without limitation, condemnation proceedings.
(h) Seller has not received any actual written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or the Property relating in any way to a Release or compliance with Environmental Laws. For purposes of this Agreement, the phrase “Environmental Laws” shall mean any federal, state or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materials, or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 00
Appears in 2 contracts
Samples: Mortgage Loan Purchase Agreement (COBALT CMBS Commercial Mortgage Trust 2006-C1), Mortgage Loan Purchase Agreement (COBALT CMBS Commercial Mortgage Trust 2007-C3)
Representations, Warranties and Covenants of Seller. (a) The Seller hereby represents, represents and warrants to and covenants to Purchaser that with the following matters are true and correct Purchaser, as of the execution of this Agreement and will also be true and correct as of the Closingdate hereof, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx Xxxxxxxxxthat:
(ai) The Seller is a statutory trust corporation duly formed and organized, validly existing and in good standing under the laws of the State of Delaware. Delaware and the Seller has taken all necessary corporate action to authorize the execution, delivery and performance of this Agreement by it, and has the power and authority to execute, deliver and perform this Agreement and all transactions contemplated hereby.
(ii) This Agreement has been, been duly and all the documents executed by Seller which are to be delivered to Purchaser at the Closing will be, duly validly authorized, executed and delivered by Seller the Seller, all requisite action by the Seller's directors and will be legalofficers has been taken in connection therewith, valid and (assuming the due authorization, execution and delivery hereof by the Purchaser) this Agreement constitutes the valid, legal and binding obligations agreement of Seller the Seller, enforceable against the Seller in accordance with their respective terms (its terms, except to the extent that as such enforcement may be limited by applicable (A) laws relating to bankruptcy, insolvency, moratorium and fraudulent transfer, reorganization, receivership, conservatorship or moratorium, (B) other principles laws relating to or limiting affecting the right rights of contracting parties creditors generally, or (C) general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law), will be sufficient to convey title .
(if they purport to do soiii) The execution and delivery of this Agreement by the Seller and the Seller's performance and compliance with the terms of this Agreement will not (A) violate the Seller's certificate of incorporation or bylaws, (B) violate any provisions law or regulation or any administrative decree or order to which it is subject or (C) constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material contract, agreement or other instrument to which the Seller is a party or to by which the Property or Seller is bound, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or materially and adversely affect its performance hereunder.
(iv) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or other governmental agency or body, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or materially and adversely affect its performance hereunder.
(v) The Seller is not a party to or bound by any agreement or instrument or subject to any certificate of incorporation, bylaws or bound. Subject any other corporate restriction or any judgment, order, writ, injunction, decree, law or regulation that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the ability of the Seller to perform its obligations under this Agreement or that requires the consent of any third person to the satisfaction of Section 8(a)(i) below, no consent, waiver or approval by any third party is required in connection with the execution and delivery by Seller of this Agreement or the performance by the Seller of its obligations under this Agreement (except to the extent such consent has been obtained).
(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 or the consummation of the transactions contemplated by this Agreement except as have previously been obtained, and no bulk sale law applies to such transactions.
(vii) None of the sale of the Mortgage Loans by the Seller, the transfer of the Mortgage Loans to the Trustee, and the execution, delivery or performance of this Agreement by the Seller, results or will result in the creation or imposition of any lien on any of the Seller's assets or property that would have a material adverse effect upon the Seller's ability to perform its duties and obligations under this Agreement or materially impair the ability of the Purchaser to be performed realize on the Mortgage Loans.
(viii) There is no action, suit, proceeding or investigation pending or to the knowledge of the Seller, threatened against the Seller in any court or by or before any other governmental agency or instrumentality which would, in the Seller's good faith and reasonable judgment, prohibit its entering into this Agreement or materially and adversely affect the validity of this Agreement or the performance by the Seller of its obligations under this Agreement.
(bix) Except Under generally accepted accounting principles ("GAAP") and for federal income tax purposes, the Seller will report the transfer of the Mortgage Loans to the Purchaser as set forth on Exhibit M attached hereto, a sale of the Mortgage Loans to the Purchaser in exchange for consideration consisting of a cash amount equal to the Purchase Consideration. The consideration received by the Seller has not received from any governmental authority written noticeupon the sale of the Mortgage Loans to the Purchaser will constitute at least reasonably equivalent value and fair consideration for the Mortgage Loans. The Seller will be solvent at all relevant times prior to, and Seller has no actual knowledge (without any duty will not be rendered insolvent by, the sale of inquiry or investigation) of any violation of any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable the Mortgage Loans to the Property, or any part thereof, that will Purchaser. The Seller is not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change selling the Mortgage Loans to the zoning classification Purchaser with any intent to hinder, delay or defraud any proceedings to widen or realign any streets or highways adjacent to of the Property or creditors of any condemnation proceedingsthe Seller.
(cx) To Seller’s actual knowledge, (i) The Prospectus Supplement contains all the operating statements, income and expense reports and all other contracts or documents information that is required to be delivered to Purchaser provided in respect of the Seller (that arise from its role as "sponsor" (within the meaning of Regulation AB)), the Mortgage Loans, the related Mortgagors and the related Mortgaged Properties pursuant to this Agreement are true, correct and complete copies; and (ii) all contracts or documents required to be delivered to Purchaser pursuant to this Agreement are in full force and effect, without material default by any party and without any right of set-off except as disclosed in writing at the time of such delivery.
(d) There is no master lease of the Property to any affiliate of Seller, or if such master lease exists, Seller shall cause such master lease to be terminated at Closing without Purchaser paying any termination fee. The Rent Roll attached hereto as Exhibit B is true, correct and complete in all material respects as of the date set forth on the Rent Roll. As of the Closing, the Rent Roll delivered at the Closing will be true, correct and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default by any party and without any right of setoff, except as expressly provided by the terms of such Leases or as disclosed on the Rent Roll attached hereto. The copies of the Leases and other agreements with the tenants under the Leases (the “Tenants”) delivered to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating to the Real Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real Property.
(e) Exhibit J attached hereto is a true and complete schedule of all of the Contracts (as hereinafter defined in Section 7), true, complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy of the management agreement currently in effect with respect to the Property. To Seller’s actual knowledge, the Contracts are in full force and effect, without material default by any party and without any claims made for the right of setoff, except as expressly provided by the terms of such Contracts or as disclosed to Purchaser in writing at the time of such delivery. The Contracts constitute the entire agreements with such vendors relating to the Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excluding, however, the Leases and Permitted Encumbrances) affecting the Property which will survive the Closing.
(f) At the Closing, there will be no outstanding contracts made by Seller for the construction or repair of any improvements to the Improvements which have not been fully paid for, and Seller shall cause to be discharged all mechanics’ or materialmen’s liens arising from any labor or materials furnished to the Improvements prior to the Closing.
(g) Except as set forth in Exhibit K attached hereto, there are no pending or, to Seller’s actual knowledge (without any duty of inquiry or investigation), threatened legal proceedings or actions of any kind or character affecting the Property or Seller’s interest therein, including, without limitation, condemnation proceedings.
(h) Seller has not received any actual written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or the Property relating in any way to a Release or compliance with Environmental LawsRegulation AB. For purposes purpose of this Agreement, the phrase “Environmental Laws” "Regulation AB" shall mean any federalSubpart 229.1100 - Asset-Backed Securities (Regulation AB), state 17 C.F.R. ss.ss.229.1100-229.1123, as such may be amended from time to time, and subject to such clarification and interpretation as have been provided by the Commission in the adopting release (Asset-Backed Securities, Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506-1,631 (Jan. 7, 2005)) or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materialsby the staff of the Commission, or as may be provided by the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 00Commission or its staff from time to time.
Appears in 2 contracts
Samples: Mortgage Loan Purchase Agreement (Merrill Lynch Mortgage Trust 2007-C1), Mortgage Loan Purchase Agreement (Merrill Lynch Mortgage Trust 2007-C1)
Representations, Warranties and Covenants of Seller. (a) The Seller hereby represents, represents and warrants to and covenants to Purchaser that with the following matters are true and correct Purchaser, as of the execution of this Agreement and will also be true and correct as of the Closingdate hereof, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx Xxxxxxxxxthat:
(ai) The Seller is a statutory trust national banking association duly formed and organized, validly existing and in good standing under the laws of the State United States and the Seller has taken all necessary corporate action to authorize the execution, delivery and performance of Delaware. this Agreement by it, and has the power and authority to execute, deliver and perform this Agreement and all transactions contemplated hereby.
(ii) This Agreement has been, been duly and all the documents executed by Seller which are to be delivered to Purchaser at the Closing will be, duly validly authorized, executed and delivered by Seller the Seller, all requisite action by the Seller's directors and will be legalofficers has been taken in connection therewith, valid and (assuming the due authorization, execution and delivery hereof by the Purchaser) this Agreement constitutes the valid, legal and binding obligations agreement of Seller the Seller, enforceable against the Seller in accordance with their respective terms (its terms, except to the extent that as such enforcement may be limited by applicable (A) laws relating to bankruptcy, insolvency, moratorium and fraudulent transfer, reorganization, receivership, conservatorship or moratorium, (B) other principles laws relating to or limiting affecting the right rights of contracting parties creditors generally, or (C) general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law), will be sufficient to convey title .
(if they purport to do soiii) The execution and delivery of this Agreement by the Seller and the Seller's performance and compliance with the terms of this Agreement will not (A) violate the Seller's articles of association or bylaws, (B) violate any provisions law or regulation or any administrative decree or order to which it is subject or (C) constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material contract, agreement or other instrument to which the Seller is a party or to by which the Property or Seller is bound, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or materially and adversely affect its performance hereunder.
(iv) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or other governmental agency or body, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or materially and adversely affect its performance hereunder.
(v) The Seller is not a party to or bound by any agreement or instrument or subject to any articles of association, bylaws or bound. Subject any other corporate restriction or any judgment, order, writ, injunction, decree, law or regulation that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the ability of the Seller to perform its obligations under this Agreement or that requires the consent of any third person to the satisfaction of Section 8(a)(i) below, no consent, waiver or approval by any third party is required in connection with the execution and delivery by Seller of this Agreement or the performance by the Seller of its obligations under this Agreement (except to the extent such consent has been obtained).
(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 or the consummation of the transactions contemplated by this Agreement except as have previously been obtained, and no bulk sale law applies to such transactions.
(vii) None of the sale of the Mortgage Loans by the Seller, the transfer of the Mortgage Loans to the Trustee, and the execution, delivery or performance of this Agreement by the Seller, results or will result in the creation or imposition of any lien on any of the Seller's assets or property that would have a material adverse effect upon the Seller's ability to perform its duties and obligations under this Agreement or materially impair the ability of the Purchaser to be performed realize on the Mortgage Loans.
(viii) There is no action, suit, proceeding or investigation pending or to the knowledge of the Seller, threatened against the Seller in any court or by or before any other governmental agency or instrumentality which would, in the Seller's good faith and reasonable judgment, prohibit its entering into this Agreement or materially and adversely affect the validity of this Agreement or the performance by the Seller of its obligations under this Agreement.
(bix) Except Under generally accepted accounting principles ("GAAP") and for federal income tax purposes, the Seller will report the transfer of the Mortgage Loans to the Purchaser as set forth on Exhibit M attached hereto, a sale of the Mortgage Loans to the Purchaser in exchange for consideration consisting of a cash amount equal to the Purchase Consideration. The consideration received by the Seller has not received from any governmental authority written noticeupon the sale of the Mortgage Loans to the Purchaser will constitute at least reasonably equivalent value and fair consideration for the Mortgage Loans. The Seller will be solvent at all relevant times prior to, and Seller has no actual knowledge (without any duty will not be rendered insolvent by, the sale of inquiry or investigation) of any violation of any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable the Mortgage Loans to the Property, or any part thereof, that will Purchaser. The Seller is not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change selling the Mortgage Loans to the zoning classification Purchaser with any intent to hinder, delay or defraud any proceedings to widen or realign any streets or highways adjacent to of the Property or creditors of any condemnation proceedingsthe Seller.
(cx) To Seller’s actual knowledge, (i) The Prospectus Supplement contains all the operating statements, income and expense reports and all other contracts or documents information that is required to be delivered to Purchaser provided in respect of the Seller (that arise from its role as "sponsor" (within the meaning of Regulation AB)), the Mortgage Loans, the related Mortgagors and the related Mortgaged Properties pursuant to this Agreement are true, correct and complete copies; and (ii) all contracts or documents required to be delivered to Purchaser pursuant to this Agreement are in full force and effect, without material default by any party and without any right of set-off except as disclosed in writing at the time of such delivery.
(d) There is no master lease of the Property to any affiliate of Seller, or if such master lease exists, Seller shall cause such master lease to be terminated at Closing without Purchaser paying any termination fee. The Rent Roll attached hereto as Exhibit B is true, correct and complete in all material respects as of the date set forth on the Rent Roll. As of the Closing, the Rent Roll delivered at the Closing will be true, correct and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default by any party and without any right of setoff, except as expressly provided by the terms of such Leases or as disclosed on the Rent Roll attached hereto. The copies of the Leases and other agreements with the tenants under the Leases (the “Tenants”) delivered to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating to the Real Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real Property.
(e) Exhibit J attached hereto is a true and complete schedule of all of the Contracts (as hereinafter defined in Section 7), true, complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy of the management agreement currently in effect with respect to the Property. To Seller’s actual knowledge, the Contracts are in full force and effect, without material default by any party and without any claims made for the right of setoff, except as expressly provided by the terms of such Contracts or as disclosed to Purchaser in writing at the time of such delivery. The Contracts constitute the entire agreements with such vendors relating to the Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excluding, however, the Leases and Permitted Encumbrances) affecting the Property which will survive the Closing.
(f) At the Closing, there will be no outstanding contracts made by Seller for the construction or repair of any improvements to the Improvements which have not been fully paid for, and Seller shall cause to be discharged all mechanics’ or materialmen’s liens arising from any labor or materials furnished to the Improvements prior to the Closing.
(g) Except as set forth in Exhibit K attached hereto, there are no pending or, to Seller’s actual knowledge (without any duty of inquiry or investigation), threatened legal proceedings or actions of any kind or character affecting the Property or Seller’s interest therein, including, without limitation, condemnation proceedings.
(h) Seller has not received any actual written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or the Property relating in any way to a Release or compliance with Environmental LawsRegulation AB. For purposes purpose of this Agreement, the phrase “Environmental Laws” "Regulation AB" shall mean any federalSubpart 229.1100 - Asset Backed Securities (Regulation AB), state 17 C.F.R. Sections 229.1100-229.1123, as such may be amended from time to time, and subject to such clarification and interpretation as have been provided by the Commission in the adopting release (Asset-Backed Securities, Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506-1,631 (Jan. 7, 2005)) or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materialsby the staff of the Commission, or as may be provided by the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 00Commission or its staff from time to time.
Appears in 2 contracts
Samples: Mortgage Loan Purchase Agreement (MLMT 2008-C1), Mortgage Loan Purchase Agreement (MLMT 2008-C1)
Representations, Warranties and Covenants of Seller. (a) The Seller hereby represents, represents and warrants to and covenants to Purchaser that with the following matters are true and correct Purchaser, as of the execution of this Agreement and will also be true and correct as of the Closingdate hereof, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx Xxxxxxxxxthat:
(ai) The Seller is a statutory trust corporation duly formed and organized, validly existing and in good standing under the laws of the State of Delaware. Delaware and the Seller has taken all necessary action to authorize the execution, delivery and performance of this Agreement by it, and has the power and authority to execute, deliver and perform this Agreement and all transactions contemplated hereby.
(ii) This Agreement has been, been duly and all the documents executed by Seller which are to be delivered to Purchaser at the Closing will be, duly validly authorized, executed and delivered by Seller the Seller, all requisite action by the Seller's directors and will be legalofficers has been taken in connection therewith, valid and (assuming the due authorization, execution and delivery hereof by the Purchaser) this Agreement constitutes the valid, legal and binding obligations agreement of Seller the Seller, enforceable against the Seller in accordance with their respective terms (its terms, except to the extent that as such enforcement may be limited by applicable (A) laws relating to bankruptcy, insolvency, moratorium and fraudulent transfer, reorganization, receivership, conservatorship or moratorium, (B) other principles laws relating to or limiting affecting the right rights of contracting parties creditors generally, or (C) general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law), will be sufficient to convey title .
(if they purport to do soiii) The execution and delivery of this Agreement by the Seller and the Seller's performance and compliance with the terms of this Agreement will not (A) violate the Seller's certificate of incorporation or bylaws, (B) violate any provisions law or regulation or any administrative decree or order to which it is subject or (C) constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material contract, agreement or other instrument to which the Seller is a party or to by which the Property or Seller is bound, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or materially and adversely affect its performance hereunder.
(iv) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or other governmental agency or body, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or materially and adversely affect its performance hereunder.
(v) The Seller is not a party to or bound by any agreement or instrument or subject to any certificate of incorporation, bylaws or bound. Subject any other corporate restriction or any judgment, order, writ, injunction, decree, law or regulation that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the ability of the Seller to perform its obligations under this Agreement or that requires the consent of any third person to the satisfaction of Section 8(a)(i) below, no consent, waiver or approval by any third party is required in connection with the execution and delivery by Seller of this Agreement or the performance by the Seller of its obligations under this Agreement (except to the extent such consent has been obtained).
(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 or the consummation of the transactions contemplated by this Agreement except as have previously been obtained, and no bulk sale law applies to such transactions.
(vii) None of the sale of the Mortgage Loans by the Seller, the transfer of the Mortgage Loans to the Trustee, and the execution, delivery or performance of this Agreement by the Seller, results or will result in the creation or imposition of any lien on any of the Seller's assets or property that would have a material adverse effect upon the Seller's ability to perform its duties and obligations under this Agreement or materially impair the ability of the Purchaser to be performed realize on the Mortgage Loans.
(viii) There is no action, suit, proceeding or investigation pending or to the knowledge of the Seller, threatened against the Seller in any court or by or before any other governmental agency or instrumentality which would, in the Seller's good faith and reasonable judgment, prohibit its entering into this Agreement or materially and adversely affect the validity of this Agreement or the performance by the Seller of its obligations under this Agreement.
(ix) Under generally accepted accounting principles ("GAAP") and for federal income tax purposes, the Seller will report the transfer of the Mortgage Loans to the Purchaser as a sale of the Mortgage Loans to the Purchaser in exchange for consideration consisting of a cash amount equal to the Purchase Consideration. The consideration received by the Seller upon the sale of the Mortgage Loans to the Purchaser will constitute at least reasonably equivalent value and fair consideration for the Mortgage Loans. The Seller will be solvent at all relevant times prior to, and will not be rendered insolvent by, the sale of the Mortgage Loans to the Purchaser. The Seller is not selling the Mortgage Loans to the Purchaser with any intent to hinder, delay or defraud any of the creditors of the Seller.
(x) The Prospectus Supplement contains all the information that is required to be provided in respect of the Seller (that arise from its role as "sponsor" (within the meaning of Regulation AB)), the Mortgage Loans, the related Mortgagors and the related Mortgaged Properties pursuant to Regulation AB.
(b) Except The Seller hereby makes the representations and warranties contained in Schedule I hereto for the benefit of the Purchaser and the Trustee for the benefit of the Certificateholders as of the Closing Date (unless a different date is specified therein), with respect to (and solely with respect to) each Mortgage Loan, subject, however, to the exceptions set forth on Exhibit M attached hereto, Seller has not received from any governmental authority written notice, and Seller has no actual knowledge (without any duty Annex A to Schedule I of inquiry or investigation) of any violation of any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable to the Property, or any part thereof, that will not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change to the zoning classification or any proceedings to widen or realign any streets or highways adjacent to the Property or of any condemnation proceedingsthis Agreement.
(c) To Seller’s actual knowledgeIf the Seller receives written notice of a Document Defect or a Breach relating to a Mortgage Loan pursuant to Section 2.03(a) of the Pooling and Servicing Agreement, then the Seller shall, not later than 90 days from receipt of such notice (or, in the case of a Document Defect or Breach relating to a Mortgage Loan not being a "qualified mortgage" within the meaning of the REMIC Provisions (a "Qualified Mortgage"), not later than 90 days from any party to the Pooling and Servicing Agreement discovering such Document Defect or Breach, provided the Seller receives such notice in a timely manner), if such Document Defect or Breach materially and adversely affects the value of the related Mortgage Loan or the interests of the Certificateholders therein, cure such Document Defect or Breach, as the case may be, in all material respects, which shall include payment of losses and any Additional Trust Fund Expenses associated therewith or, if such Document Defect or Breach (other than omissions due solely to a document not having been returned by the related recording office) cannot be cured within such 90-day period, (i) repurchase the operating statementsaffected Mortgage Loan (which, income for the purposes of this clause (i), shall include an REO Loan) at the applicable Purchase Price (as defined in the Pooling and expense reports and all other contracts Servicing Agreement) not later than the end of such 90-day period or documents required to be delivered to Purchaser pursuant to this Agreement are true, correct and complete copies; and (ii) all contracts substitute a Qualified Substitute Mortgage Loan for such affected Mortgage Loan (which, for purposes of this clause (ii), shall include an REO Loan) not later than the end of such 90-day period (and in no event later than the second anniversary of the Closing Date) and pay the applicable Master Servicer for deposit into its Collection Account any Substitution Shortfall Amount in connection therewith; provided, however, that, unless the Document Defect or documents required Breach would cause the Mortgage Loan not to be a Qualified Mortgage, if such Document Defect or Breach is capable of being cured but not within such 90-day period and the Seller has commenced and is diligently proceeding with the cure of such Document Defect or Breach within such 90-day period, the Seller shall have an additional 90 days to complete such cure (or, failing such cure, to repurchase or substitute the related Mortgage Loan (which, for purposes of such repurchase or substitution, shall include an REO Loan)); and provided, further, that with respect to such additional 90-day period, the Seller shall have delivered an officer's certificate to Purchaser pursuant the Trustee setting forth the reason(s) such Document Defect or Breach is not capable of being cured within the initial 90-day period and what actions the Seller is pursuing in connection with the cure thereof and stating that the Seller anticipates that such Document Defect or Breach will be cured within the additional 90-day period; and provided, further, that no Document Defect (other than with respect to this Agreement are the Specially Designated Mortgage Loan Documents) shall be considered to materially and adversely affect the interests of the Certificateholders or the value of the related Mortgage Loan unless the document with respect to which the Document Defect exists is required in full force and effectconnection with an imminent enforcement of the mortgagee's rights or remedies under the related Mortgage Loan, without material default defending any claim asserted by any Mortgagor or third party with respect to the Mortgage Loan, establishing the validity or priority of any lien or any collateral securing the Mortgage Loan or for any immediate servicing obligations.
(1) the weighted average debt service coverage ratio for all the remaining Crossed Loans for the four calendar quarters immediately preceding such repurchase or substitution is not less than the greater of (A) the weighted average debt service coverage ratio for all such Crossed Loans, including the affected Crossed Loan, for the four calendar quarters immediately preceding such repurchase or substitution and without any right (B) the weighted average debt service coverage ratio for all such Crossed Loans, including the affected Crossed Loan, as of setthe Cut-off except as disclosed in writing Date, and (2) the weighted average loan-to-value ratio for the remaining Crossed Loans determined at the time of such delivery.
(d) There is no master lease repurchase or substitution based upon an appraisal obtained by the Special Servicer at the expense of the Property to any affiliate of Seller, or if such master lease exists, Seller shall cause not be greater than the lesser of (A) the weighted average loan-to-value ratio for all such master lease to be terminated at Closing without Purchaser paying any termination fee. The Rent Roll attached hereto as Exhibit B is trueCrossed Loans, correct and complete in all material respects as of including the date set forth on the Rent Roll. As of the Closing, the Rent Roll delivered at the Closing will be true, correct and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default by any party and without any right of setoff, except as expressly provided by the terms of such Leases or as disclosed on the Rent Roll attached hereto. The copies of the Leases and other agreements with the tenants under the Leases (the “Tenants”) delivered to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating to the Real Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real Property.
(e) Exhibit J attached hereto is a true and complete schedule of all of the Contracts (as hereinafter defined in Section 7), true, complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy of the management agreement currently in effect with respect to the Property. To Seller’s actual knowledge, the Contracts are in full force and effect, without material default by any party and without any claims made for the right of setoff, except as expressly provided by the terms of such Contracts or as disclosed to Purchaser in writing affected Crossed Loan determined at the time of repurchase or substitution based upon an appraisal obtained by the Special Servicer at the expense of the Seller and (B) the weighted average loan-to-value ratio for all such deliveryCrossed Loans, including the affected Crossed Loan, as of the Cut-off Date; provided, that if such debt service coverage and loan-to-value criteria are satisfied, any other Crossed Loan (that is not the Crossed Loan directly affected by the subject Document Defect or Breach), shall be released from its cross-collateralization and cross-default provision so long as such Crossed Loan (that is not the Crossed Loan directly affected by the subject Document Defect or Breach) is held in the Trust Fund; and provided, further, that the repurchase or replacement of less than all such Crossed Loans and the release of any Crossed Loan from a cross-collateralization and cross-default provision shall be further subject to the delivery by the Seller to the Trustee, at the expense of the Seller, of an Opinion of Counsel to the effect that such release would not cause either of REMIC I or REMIC II to fail to qualify as a REMIC under the Code or result in the imposition of any tax on "prohibited transactions" or "contributions" after the Startup Day under the REMIC Provisions. The Contracts constitute In the entire agreements with event that one or more of such vendors other Crossed Loans satisfy the aforementioned criteria, the Seller may elect either to repurchase or substitute for only the affected Crossed Loan as to which the related Document Defect or Breach exists or to repurchase or substitute for all of the Crossed Loans in the related Crossed Loan Group. All documentation relating to the Propertytermination of the cross-collateralization provisions of a Crossed Loan being repurchased shall be prepared at the expense of the Seller and, have not been materially amendedwhere required, modified with the consent of the related Mortgagor. For a period of two years from the Closing Date, so long as there remains any Mortgage File relating to a Mortgage Loan as to which there is any uncured Document Defect or supplementedBreach known to the Seller, except for the Seller shall provide, once every ninety days, the officer's certificate to the Trustee described above as to the reason(s) such amendments, modifications Document Defect or Breach remains uncured and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excludingthe actions being taken to pursue cure; provided, however, that, without limiting the Leases effect of the foregoing provisions of this Section 3(c), if such Document Defect or Breach shall materially and Permitted Encumbrances) affecting adversely affect the Property which will survive value of such Mortgage Loan or the Closing.
interests of the holders of the Certificates therein (f) At the Closing, there will be no outstanding contracts made by Seller for the construction or repair of any improvements subject to the Improvements which have not been fully paid forsecond and third provisos in the sole sentence of the preceding paragraph), and the Seller shall cause to be discharged in all mechanics’ cases on or materialmen’s liens arising from any labor or materials furnished to the Improvements prior to the Closing.
second anniversary of the Closing Date either cause such Document Defect or Breach to be cured or repurchase or substitute for the affected Mortgage Loan (g) Except for the avoidance of doubt, the foregoing two-year period shall not be deemed to be a time limitation on Seller's right to cure a Document Defect or Breach as set forth in Exhibit K attached hereto, there are no pending or, this Section 3). The delivery of a commitment to Seller’s issue a policy of lender's title insurance as described in representation 8 set forth on Schedule I hereto in lieu of the delivery of the actual knowledge (without policy of lender's title insurance shall not be considered a Document Defect or Breach with respect to any duty Mortgage File if such actual policy of inquiry or investigation), threatened legal proceedings or actions of any kind or character affecting insurance is delivered to the Property or Seller’s interest therein, including, without limitation, condemnation proceedingsTrustee not later than the 180th day following the Closing Date.
(h) Seller has not received any actual written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or the Property relating in any way to a Release or compliance with Environmental Laws. For purposes of this Agreement, the phrase “Environmental Laws” shall mean any federal, state or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materials, or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 00
Appears in 2 contracts
Samples: Mortgage Loan Purchase Agreement (Merrill Lynch Mortgage Trust 2006-C2), Mortgage Loan Purchase Agreement (Merrill Lynch Mortgage Trust 2006-C2)
Representations, Warranties and Covenants of Seller. Seller hereby represents, represents and warrants and covenants to Purchaser that at closing Seller, or a direct or indirect wholly-owned subsidiary of Seller, will have good and indefeasible fee simple title to the following Subject Property free and clear of all liens, encumbrances, covenants, restrictions, rights-of-way, easements, and any other matters affecting title to the Subject Property except for the Permitted Exceptions, and at closing, Seller or its subsidiaries will be in a position to convey the Subject Property to Purchaser (free and clear of all liens, encumbrances, and other such matters affecting title except for the Permitted Exceptions). Seller further covenants and agrees with Purchaser that, from the date hereof until the closing, neither Seller nor its subsidiaries shall sell, assign, or convey any right, title, or interest whatsoever in or to the Subject Property, or create or permit to exist any lien, security interest, easement, encumbrance, charge, or condition affecting the Subject Property (other than the Permitted Exceptions) without promptly discharging the same prior to closing. Seller hereby further represents and warrants to Purchaser, to the best of Seller's knowledge, as follows:
a. There are true and correct as no actions, suits, or proceedings pending or, to the best of Seller's knowledge, threatened against Seller or otherwise affecting any portion of the Subject Property, at law or in equity, or before or by any federal, state, municipal, or other governmental court, department, commission, board, bureau, agency, or instrumentality, domestic or foreign;
b. The execution by Seller of this Agreement Contract and will also be true and correct as the consummation by Seller of the Closing, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx Xxxxxxxxx:
(a) Seller is a statutory trust duly formed and validly existing under the laws of the State of Delaware. This Agreement has been, and all the documents executed by Seller which are to be delivered to Purchaser at the Closing will be, sale contemplated hereby have been duly authorized, executed and delivered by Seller and will be legaldo not, valid and binding obligations of Seller enforceable against Seller in accordance with their respective terms (except to and, at the extent that such enforcement may be limited by applicable bankruptcy, insolvency, moratorium and other principles relating to or limiting the right of contracting parties generally)closing date, will be sufficient to convey title (if they purport to do so) and will not violate any provisions not, result in a breach of any material agreement of the terms or provisions of, or constitute a default under any indenture, agreement, instrument, or obligation to which Seller is a party or to by which the Subject Property or Seller any portion thereof is subject or bound. , and do not, and at the closing date will not, constitute a violation of any regulation affecting the Subject to the satisfaction of Section 8(a)(i) below, no consent, waiver or approval by any third party is required in connection with the execution and delivery by Seller of this Agreement or the performance by Seller of the obligations to be performed by Seller under this Agreement.Property;
(b) Except as set forth on Exhibit M attached hereto, c. Seller has not received from any governmental authority written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) notice of any violation of any zoning, building, fire or health code or any other statute, ordinance, rule regulation, law, or regulation applicable statute of any governmental agency pertaining to the Subject Property, or any part thereof, that will not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change to
d. The Subject Property and the zoning classification or any proceedings to widen or realign any streets or highways adjacent to the Property or of any condemnation proceedings.
(c) To Seller’s actual knowledge, (i) the operating statements, income and expense reports and all other contracts or documents required to be delivered to Purchaser pursuant to this Agreement are true, correct and complete copies; and (ii) all contracts or documents required to be delivered to Purchaser pursuant to this Agreement are in full force and effect, without material default by any party and without any right of set-off except as disclosed in writing at the time of such delivery.
(d) There is no master lease of the Property to any affiliate of Seller, or if such master lease exists, Seller shall cause such master lease to be terminated at Closing without Purchaser paying any termination fee. The Rent Roll attached hereto as Exhibit B is true, correct and complete current operation thereof comply in all material respects as with all laws, regulations, ordinances, rules, orders and other requirements of all governmental authorities having jurisdiction over the Subject Property or affecting all or any part thereof or bearing on its construction or operation, and with all private covenants or restrictions;
e. From the date set forth on of execution of this Contract through the Rent Roll. As date of closing, Seller shall continue to maintain the ClosingSubject Property in its present condition, the Rent Roll delivered at the Closing will be true, correct subject to ordinary wear and complete. The copies of the Leases delivered to Purchaser are true, correct tear and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default by any party and without any right of setoff, except as expressly provided by the terms of such Leases or as disclosed on the Rent Roll attached hereto. The copies of the Leases and other agreements with the tenants under the Leases (the “Tenants”) delivered to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating to the Real Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to PurchaserArticle XV hereof, and there are no shall continue to manage the Subject Property in the same manner as it is currently being managed; Seller shall not remove any fixtures, equipment, furnishings or other leases personal property from the Subject Property unless replaced with items of equal or tenancy agreements affecting greater quality and quantity, nor shall Seller in any manner neglect the Real Subject Property.; and
(e) Exhibit J attached hereto is a true and complete schedule of all of the Contracts (as hereinafter defined in Section 7)f. That, true, complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy of the management agreement currently in effect with respect to the Property. To Seller’s actual knowledge, the Contracts are in full force and effect, without material default by any party and without any claims made for the right of setoff, except as expressly provided by the terms of such Contracts or as disclosed to Purchaser in writing at the time of such delivery. The Contracts constitute the entire agreements with such vendors relating to the Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excluding, however, the Leases and Permitted Encumbrances) affecting the Property which will survive the Closing.
(f) At the Closingclosing, there will be no outstanding contracts made by Seller for the unpaid bills, claims, or liens in connection with any construction or repair of any improvements the Subject Property except for ones which will be paid in the ordinary course of business or which have been bonded around or the payment of which has otherwise been adequately provided for to the Improvements which have complete satisfaction of Purchaser. All of the foregoing representations and warranties of Seller are made by Seller both as of the date hereof and as of the date of the closing hereunder. Notwithstanding the foregoing or anything to the contrary contained herein, it is understood and agreed that the representations and warranties set forth hereinabove shall survive the closing of this Contract only for a period of two (2) years following the closing date, but not been fully paid forthereafter, and Seller shall cause to be discharged all mechanics’ or materialmen’s liens arising from any labor or materials furnished to the Improvements prior to the Closing.
(g) Except as set forth in Exhibit K attached hereto, there are have no pending or, to Seller’s actual knowledge (without any duty of inquiry or investigation), threatened legal proceedings or actions liability of any kind whatsoever for any breach thereof except to the extent a claim is asserted against Seller within such two (2) year period. Purchaser agrees that, having had the opportunity to inspect the Subject Property for defects and having had the right to terminate this Contract in the event any defects are found, Purchaser will accept at closing the Subject Property in an "as is, where is" condition, and, except for the representations and warranties set forth hereinabove, Seller shall not be required to give any further representations or character affecting warranties at closing with respect to the condition of the Subject Property or Seller’s interest therein, including, without limitation, condemnation proceedingsthe income that may be generated by the Subject Property.
(h) Seller has not received any actual written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or the Property relating in any way to a Release or compliance with Environmental Laws. For purposes of this Agreement, the phrase “Environmental Laws” shall mean any federal, state or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materials, or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 00
Appears in 2 contracts
Samples: Contract of Sale (Silverleaf Resorts Inc), Contract of Sale (Silverleaf Resorts Inc)
Representations, Warranties and Covenants of Seller. (a) The Seller hereby represents, represents and warrants to and covenants to Purchaser that with the following matters are true and correct Purchaser, as of the execution of this Agreement date hereof and will also be true and correct as of the ClosingClosing Date, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx Xxxxxxxxxthat:
(ai) The Seller is a statutory trust corporation duly formed and organized, validly existing and in good standing under the laws of the State of Delaware. This Agreement has been, is duly qualified as a foreign organization in good standing in all jurisdictions to the extent such qualification is necessary to hold and sell the Mortgage Loans or otherwise comply with its obligations under the Operative Documents, except where the failure to be so qualified would not have a material adverse effect on its ability to perform its obligations under the Operative Documents, and possesses all requisite authority and power to carry on its business as currently conducted by it and to execute, deliver and comply with its obligations under the documents executed by Seller which are to be delivered to Purchaser at the Closing will be, terms of each Operative Document.
(ii) Each Operative Document has been duly and validly authorized, executed and delivered by the Seller and, assuming due authorization, execution and will be delivery hereof by the Purchaser, constitutes a legal, valid and binding obligations obligation of Seller the Seller, enforceable against the Seller in accordance with their respective terms (its terms, except to the extent that as such enforcement may be limited by applicable (A) bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws affecting the enforcement of creditors' rights in general, and other (B) general equity principles relating to (regardless of whether such enforcement is considered in a proceeding in equity or limiting at law).
(iii) The execution and delivery of each Operative Document by the right Seller and the Seller's performance and compliance with the terms of contracting parties generally), will be sufficient to convey title (if they purport to do so) and each Operative Document will not (A) violate the Seller's organizational documents, (B) violate any provisions law or regulation or any administrative decree or order to which the Seller is subject or (C) constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material contract, agreement or other instrument to which the Seller is a party or to by which the Property or Seller is bound.
(iv) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or other governmental agency or body, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect its performance hereunder.
(v) The Seller is not a party to or bound by any agreement or instrument or subject to any organizational document or bound. Subject any other corporate restriction or any judgment, order, writ, injunction, decree, law or regulation that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the ability of the Seller to perform its obligations under the Operative Documents or that requires the consent of any third person to the satisfaction execution and delivery of the Operative Documents by the Seller or the performance by the Seller of its obligations under the Operative Documents.
(vi) Except for the recordation and/or filing of assignments and other transfer documents with respect to the Mortgage Loans, as contemplated by Section 8(a)(i) below2(d), no consent, waiver approval, authorization or approval by order of, registration or filing with, or notice to, any third party court or governmental agency or body, is required for the execution, delivery and performance by the Seller of or compliance by the Seller with the Operative Documents or the consummation of the transactions contemplated by the Operative Documents; and no bulk sale law applies to such transactions.
(vii) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller that would, in the Seller's good faith and reasonable judgment, prohibit its entering into the Operative Documents or materially and adversely affect the performance by the Seller of its obligations under the Operative Documents.
(viii) The Seller intends to treat the transfer of the Mortgage Loans to the Purchaser as a sale for accounting and tax purposes. In connection with the execution and delivery foregoing, the Seller shall cause all of its records to reflect such transfer as a sale (as opposed to a secured loan). The consideration received by the Seller of this Agreement or upon the performance by Seller sale of the Mortgage Loans to the Purchaser will constitute at least reasonably equivalent value and fair consideration for the Mortgage Loans. The Seller will be solvent at all relevant times prior to, and will not be rendered insolvent by, the sale of the Mortgage Loans to the Purchaser. The Seller is not selling the Mortgage Loans to the Purchaser with any intent to hinder, delay or defraud any of the creditors of the Seller. After giving effect to its transfer of the Mortgage Loans to the Purchaser, as provided herein, the value of the Seller's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Seller's debts and obligations, including contingent and unliquidated debts and obligations of the Seller, and the Seller will not be left with unreasonably small assets or capital with which to be performed by engage in and conduct its business. The Mortgage Loans do not constitute all or substantially all of the assets of the Seller. The Seller under this Agreementdoes not intend to, and does not believe that it will, incur debts or obligations beyond its ability to pay such debts and obligations as they mature.
(ix) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Seller are pending or contemplated.
(b) Except The Seller hereby makes, for the benefit of the Purchaser, with respect to each Mortgage Loan, as of the Closing Date or as of such other date expressly set forth therein, each of the representations and warranties set forth on Exhibit M B attached hereto, Seller has not received from any governmental authority written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any violation of any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable to the Property, or any part thereof, that will not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change to the zoning classification or any proceedings to widen or realign any streets or highways adjacent to the Property or of any condemnation proceedings.
(c) To Seller’s actual knowledge, (i) the operating statements, income and expense reports and all other contracts or documents required to be delivered to Purchaser pursuant to this Agreement are true, correct and complete copies; and (ii) all contracts or documents required to be delivered to Purchaser pursuant to this Agreement are in full force and effect, without material default by any party and without any right of set-off except as disclosed in writing at the time of such delivery.
(d) There is no master lease of the Property to any affiliate of Seller, or if such master lease exists, Seller shall cause such master lease to be terminated at Closing without Purchaser paying any termination fee. The Rent Roll attached hereto as Exhibit B is true, correct and complete in all material respects as of the date otherwise set forth on the Rent Roll. As of the Closing, the Rent Roll delivered at the Closing will be true, correct and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default by any party and without any right of setoff, except as expressly provided by the terms of such Leases or as disclosed on the Rent Roll Exhibit C attached hereto. The copies of ; provided that the Leases and other agreements with the tenants under the Leases (the “Tenants”) delivered to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating to the Real Property, have Seller expressly does not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real Property.
(e) Exhibit J attached hereto is a true and complete schedule of all of the Contracts (as hereinafter defined in Section 7), true, complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy of the management agreement currently in effect make any Multifamily Representation with respect to any Mortgage Loan that is not in the PropertyMultifamily Loan Group. To Seller’s actual knowledgeAs used in Exhibit B, the Contracts are in full force term "Multifamily Loan Group" shall mean a loan group comprised of the multifamily mortgages and effect, without material default by any party mortgages on manufactured housing parks identified as Loan Group 2 on the Mortgage Loan Schedule. The term "Multifamily Representation" shall mean each of the representations and without any claims warranties made for the right of setoff, except as expressly provided by the terms of such Contracts or as disclosed Seller with respect to Purchaser any Mortgage Loan in writing at the time of such delivery. The Contracts constitute the entire agreements with such vendors relating to the Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties Multifamily Loan Group in clause (excluding, however, the Leases and Permitted Encumbrances) affecting the Property which will survive the Closing.
(f) At the Closing, there will be no outstanding contracts made by Seller for the construction or repair of any improvements to the Improvements which have not been fully paid for, and Seller shall cause to be discharged all mechanics’ or materialmen’s liens arising from any labor or materials furnished to the Improvements prior to the Closing.
(g) Except as set forth in Exhibit K attached hereto, there are no pending or, to Seller’s actual knowledge (without any duty of inquiry or investigation), threatened legal proceedings or actions of any kind or character affecting the Property or Seller’s interest therein, including, without limitation, condemnation proceedings.
(h) Seller has not received any actual written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation48) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or the Property relating in any way to a Release or compliance with Environmental Laws. For purposes of this Agreement, the phrase “Environmental Laws” shall mean any federal, state or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materials, or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 00Exhibit B.
Appears in 2 contracts
Samples: Mortgage Loan Purchase Agreement (Greenwich Capital Commercial Funding Corp. Commercial Mortgage Trust 2007-Gg11), Mortgage Loan Purchase Agreement (Greenwich Capital Commercial Funding Corp. Commercial Mortgage Trust 2007-Gg9)
Representations, Warranties and Covenants of Seller. As of the date hereof and the Settlement Date, Seller hereby represents, warrants and covenants to Purchaser that the following matters are true and correct Buyer as of the execution of this Agreement and will also be true and correct as of the Closing, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx Xxxxxxxxxfollows:
(a) Seller is a statutory trust has been duly formed and is validly existing as a [INSERT TYPE OF ENTITY] in good standing under the laws of the State of Delaware. [INSERT STATE OF ORGANIZATION], has full power and authority necessary to own or hold its properties and to conduct its business as now conducted by it and to enter into and perform its obligations under this Agreement.
(b) This Agreement has been, and all the documents executed by Seller which are to be delivered to Purchaser at the Closing will be, been duly authorized, executed and delivered by Seller and will be constitutes a legal, valid valid, binding and binding obligations enforceable agreement of Seller enforceable against Seller in accordance with their respective terms Seller, subject, as to enforceability, to (except to the extent that such enforcement may be limited by applicable i) bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally, (ii) general principles of equity regardless of whether enforcement is sought in a proceeding in equity or at law, and other principles relating (iii) with respect to any rights of indemnity under the limitations of public policy under applicable securities laws.
(c) Seller is not in violation of its charter documents or limiting in default under any agreement, indenture or instrument the right effect of contracting parties generally), will which violation or default would be sufficient material to convey title (if they purport to do so) and will not violate any provisions Seller. Neither the consummation by Seller of any of the transactions herein contemplated, nor the compliance by Seller with the provisions hereof, does or will conflict with or result in a breach of any term or provision of the charter documents of Seller or conflict with, result in a material breach, violation or acceleration of, or constitute a material default under, the terms of any indenture or other agreement or instrument to which Seller is a party or by which it is bound, or any statute, order or regulation applicable to which Seller of any court, regulatory body, administrative agency or governmental body having jurisdiction over Seller.
(d) To the Property or Seller is subject or boundknowledge of Seller, the Agency Securities are duly authorized and validly issued, fully paid and non-assessable. Subject to the satisfaction of Section 8(a)(i) belowAny taxes, no consent, waiver or approval by any third party is required fees and other governmental charges in connection with the execution and delivery by Seller of this Agreement or the performance delivery and sale of the Agency Securities pursuant to this Agreement have been or will be paid by Seller of on or prior to the obligations to be performed by Seller under this AgreementSettlement Date.
(be) Except as Seller (i) has good title to, and is the sole owner of, each of the Agency Securities free and clear of any pledge, mortgage, lien, security interest or other encumbrance (collectively, “Liens”), (ii) has not assigned to any person or entity any of its right, title or interest in and to such Agency Securities or in this Agreement and (iii) has the power and authority to sell such Agency Securities to Buyer, and upon its payment of the Aggregate Purchase Price, Buyer will acquire all of Seller’s right, title and interest in and to the Agency Securities, free and clear of any and all Liens.
(f) The information set forth on Exhibit M attached heretoin Annex A regarding the Agency Securities is complete in all material respects and does not contain any untrue statement of a material fact and does not omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(g) Upon and following the consummation of the sale, transfer, assignment, conveyance, grant and delivery of the Agency Securities contemplated by this Agreement, Seller has not received from shall (i) warrant and defend such sale, transfer, assignment, conveyance, grant and delivery of the Agency Securities against all persons and entities whomsoever, (ii) take all steps reasonably necessary to establish the record of Buyer’s title to the Agency Securities free and clear of any governmental authority written noticeand all Liens, and (iii) at the request of Buyer, execute and deliver further instruments of transfer and assignment and take such other action as Buyer may reasonably request to more effectively transfer and assign to and vest in Buyer each of the Agency Securities, all at the sole cost and expense of Seller.
(h) Without limiting Section 4(g) hereof, and effective upon the consummation of the sale, transfer, assignment, conveyance, grant and delivery of the Agency Securities contemplated by this Agreement, Seller has no actual knowledge hereby constitutes and appoints Buyer the true and lawful agent and attorney in fact of Seller, with full power of substitution and re-substitution, in whole or in part, in the name and stead of Seller but on behalf and for the benefit of Buyer and its successors and assigns, from time to time: (without i) to demand, receive and collect any duty and all of inquiry or investigation) of any violation of any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable the Agency Securities and to give receipts and releases for and with respect to the Propertysame, or any part thereof; (ii) to institute and prosecute, in the name of Seller or otherwise, any and all proceedings at law, in equity or otherwise, that will not have been corrected prior Buyer or its successors and assigns may deem proper in order to Closing nor, collect or reduce to Seller’s actual knowledge, has it received possession any written notice from of the Agency Securities and in order to collect or enforce any governmental authority regarding any change to the zoning classification claim or any proceedings to widen or realign any streets or highways adjacent to the Property or right of any condemnation proceedings.
(c) To Seller’s actual knowledgekind hereby assigned or transferred, (i) the operating statements, income and expense reports and all other contracts or documents required intended so to be delivered to Purchaser pursuant to this Agreement are true, correct and complete copiesbe; and (iiiii) to do all contracts things legally permissible, required or documents reasonably deemed by Buyer to be required to be delivered recover and collect the Agency Securities and to Purchaser pursuant to this Agreement are in full force and effect, without material default by any party and without any right of set-off except as disclosed in writing at the time of such delivery.
(d) There is no master lease of the Property to any affiliate of Seller, or if such master lease exists, Seller shall cause such master lease to be terminated at Closing without Purchaser paying any termination fee. The Rent Roll attached hereto as Exhibit B is true, correct and complete in all material respects as of the date set forth on the Rent Roll. As of the Closing, the Rent Roll delivered at the Closing will be true, correct and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to use Seller’s actual knowledge, are name in full force and effect, without default by any party and without any right of setoff, except such manner as expressly provided by the terms of such Leases or as disclosed on the Rent Roll attached hereto. The copies of the Leases and other agreements with the tenants under the Leases (the “Tenants”) delivered to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating to the Real Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real Property.
(e) Exhibit J attached hereto is a true and complete schedule of all of the Contracts (as hereinafter defined in Section 7), true, complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy of the management agreement currently in effect with respect to the Property. To Seller’s actual knowledge, the Contracts are in full force and effect, without material default by any party and without any claims made Buyer may reasonably deem necessary for the right of setoff, except as expressly provided by the terms of such Contracts or as disclosed to Purchaser in writing at the time of such delivery. The Contracts constitute the entire agreements with such vendors relating to the Property, have not been materially amended, modified or supplemented, except for such amendments, modifications collection and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excluding, however, the Leases and Permitted Encumbrances) affecting the Property which will survive the Closing.
(f) At the Closing, there will be no outstanding contracts made by Seller for the construction or repair of any improvements to the Improvements which have not been fully paid for, and Seller shall cause to be discharged all mechanics’ or materialmen’s liens arising from any labor or materials furnished to the Improvements prior to the Closing.
(g) Except as set forth in Exhibit K attached hereto, there are no pending or, to Seller’s actual knowledge (without any duty of inquiry or investigation), threatened legal proceedings or actions of any kind or character affecting the Property or Seller’s interest therein, including, without limitation, condemnation proceedings.
(h) Seller has not received any actual written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or the Property relating in any way to a Release or compliance with Environmental Laws. For purposes of this Agreement, the phrase “Environmental Laws” shall mean any federal, state or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materials, or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 00recovery of
Appears in 2 contracts
Samples: Agency Securities Purchase Agreement (Commerce Street Pantheon Mortgage Asset Securitizations LLC), Agency Securities Purchase Agreement (Commerce Street Pantheon Mortgage Asset Securitizations LLC)
Representations, Warranties and Covenants of Seller. (a) The Seller hereby represents, represents and warrants to and covenants to Purchaser that with the following matters are true and correct Purchaser, as of the execution of this Agreement and will also be true and correct as of the Closingdate hereof, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx Xxxxxxxxxthat:
(ai) The Seller is a statutory trust national banking association duly formed and organized, validly existing and in good standing under the laws of the State United States and Seller has taken all necessary corporate action to authorize the execution, delivery and performance of Delaware. this Agreement by it, and has the power and authority to execute, deliver and perform this Agreement and all transactions contemplated hereby.
(ii) This Agreement has been, been duly and all the documents executed by Seller which are to be delivered to Purchaser at the Closing will be, duly validly authorized, executed and delivered by Seller the Seller, all requisite action by the Seller's directors and will be legalofficers has been taken in connection therewith, valid and (assuming the due authorization, execution and delivery hereof by the Purchaser) this Agreement constitutes the valid, legal and binding obligations agreement of Seller the Seller, enforceable against the Seller in accordance with their respective terms (its terms, except to the extent that as such enforcement may be limited by applicable (A) laws relating to bankruptcy, insolvency, moratorium and fraudulent transfer, reorganization, receivership or moratorium, (B) other principles laws relating to or limiting affecting the right rights of contracting parties creditors generally, or (C) general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law), will be sufficient to convey title .
(if they purport to do soiii) The execution and delivery of this Agreement by the Seller and the Seller's performance and compliance with the terms of this Agreement will not (A) violate the Seller's articles of association or bylaws, (B) violate any provisions law or regulation or any administrative decree or order to which it is subject or (C) constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material contract, agreement or other instrument to which the Seller is a party or to by which the Property or Seller is bound, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or might have consequences that would materially and adversely affect its performance hereunder.
(iv) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or other governmental agency or body, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or might have consequences that would materially and adversely affect its performance hereunder.
(v) The Seller is not a party to or bound by any agreement or instrument or subject to any articles of association, bylaws or bound. Subject any other corporate restriction or any judgment, order, writ, injunction, decree, law or regulation that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the ability of the Seller to perform its obligations under this Agreement or that requires the consent of any third person to the satisfaction of Section 8(a)(i) below, no consent, waiver or approval by any third party is required in connection with the execution and delivery by Seller of this Agreement or the performance by the Seller of its obligations under this Agreement (except to the extent such consent has been obtained).
(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 or the consummation of the transactions contemplated by this Agreement except as have previously been obtained, and no bulk sale law applies to such transactions.
(vii) None of the sale of the Mortgage Loans by the Seller, the transfer of the Mortgage Loans to the Trustee, and the execution, delivery or performance of this Agreement by the Seller, results or will result in the creation or imposition of any lien on any of the Seller's assets or property that would have a material adverse effect upon the Seller's ability to perform its duties and obligations under this Agreement or materially impair the ability of the Purchaser to be performed realize on the Mortgage Loans.
(viii) There is no action, suit, proceeding or investigation pending or to the knowledge of the Seller, threatened against the Seller in any court or by or before any other governmental agency or instrumentality which would, in the Seller's good faith and reasonable judgment, prohibit its entering into this Agreement or materially and adversely affect the validity of this Agreement or the performance by the Seller of its obligations under this Agreement.
(ix) Under generally accepted accounting principles ("GAAP") and for federal income tax purposes, the Seller will report the transfer of the Mortgage Loans to the Purchaser as a sale of the Mortgage Loans to the Purchaser in exchange for consideration consisting of a cash amount equal to the Purchase Consideration. The consideration received by the Seller upon the sale of the Mortgage Loans to the Purchaser will constitute at least reasonably equivalent value and fair consideration for the Mortgage Loans. The Seller will be solvent at all relevant times prior to, and will not be rendered insolvent by, the sale of the Mortgage Loans to the Purchaser. The Seller is not selling the Mortgage Loans to the Purchaser with any intent to hinder, delay or defraud any of the creditors of the Seller.
(b) Except The Seller hereby makes the representations and warranties contained in Schedule I hereto for the benefit of the Purchaser and the Trustee for the benefit of the Certificateholders as of the Closing Date (unless a different date is specified therein), with respect to (and solely with respect to) each Mortgage Loan, subject, however, to the exceptions set forth on Exhibit M attached hereto, Seller has not received from any governmental authority written notice, and Seller has no actual knowledge (without any duty Annex A to Schedule I of inquiry or investigation) of any violation of any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable to the Property, or any part thereof, that will not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change to the zoning classification or any proceedings to widen or realign any streets or highways adjacent to the Property or of any condemnation proceedingsthis Agreement.
(c) To Seller’s actual knowledge, (i) If the operating statements, income and expense reports and all other contracts Seller discovers or documents required receives written notice of a Document Defect or a Breach relating to be delivered to Purchaser a Mortgage Loan pursuant to this Agreement are trueSection 2.03(a) of the Pooling and Servicing Agreement, correct and complete copies; and (ii) all contracts then the Seller shall, not later than 90 days from such discovery or documents required to be delivered to Purchaser pursuant to this Agreement are in full force and effect, without material default by any party and without any right of set-off except as disclosed in writing at the time receipt of such delivery.
notice (d) There is no master lease or, in the case of the Property to any affiliate of Seller, a Document Defect or if such master lease exists, Seller shall cause such master lease to be terminated at Closing without Purchaser paying any termination fee. The Rent Roll attached hereto as Exhibit B is true, correct and complete in all material respects as of the date set forth on the Rent Roll. As of the Closing, the Rent Roll delivered at the Closing will be true, correct and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default by any party and without any right of setoff, except as expressly provided by the terms of such Leases or as disclosed on the Rent Roll attached hereto. The copies of the Leases and other agreements with the tenants under the Leases (the “Tenants”) delivered to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants Breach relating to the Real Property, have a Mortgage Loan not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real Property.
(e) Exhibit J attached hereto is a true and complete schedule of all of the Contracts (as hereinafter defined in Section 7), true, complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy of the management agreement currently in effect with respect to the Property. To Seller’s actual knowledge, the Contracts are in full force and effect, without material default by any party and without any claims made for the right of setoff, except as expressly provided by the terms of such Contracts or as disclosed to Purchaser in writing at the time of such delivery. The Contracts constitute the entire agreements with such vendors relating to the Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excluding, however, the Leases and Permitted Encumbrances) affecting the Property which will survive the Closing.
(f) At the Closing, there will be no outstanding contracts made by Seller for the construction or repair of any improvements to the Improvements which have not been fully paid for, and Seller shall cause to be discharged all mechanics’ or materialmen’s liens arising from any labor or materials furnished to the Improvements prior to the Closing.
(g) Except as set forth in Exhibit K attached hereto, there are no pending or, to Seller’s actual knowledge (without any duty of inquiry or investigation), threatened legal proceedings or actions of any kind or character affecting the Property or Seller’s interest therein, including, without limitation, condemnation proceedings.
(h) Seller has not received any actual written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or the Property relating in any way to a Release or compliance with Environmental Laws. For purposes of this Agreement, the phrase “Environmental Laws” shall mean any federal, state or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materials, or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 00being a
Appears in 2 contracts
Samples: Mortgage Loan Purchase Agreement (Merrill Lynch Mortgage Investors Inc Trust 2004-Mkb1), Mortgage Loan Purchase Agreement (Merrill Lynch Mortgage Investors Inc Trust 2004-Mkb1)
Representations, Warranties and Covenants of Seller. Seller hereby represents, warrants and covenants to Purchaser that the following matters are true and correct as of the execution of this Agreement and will also be true and correct as of the Closing, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx Xxxxxxxxx:
(a) Seller hereby represents and warrants to and covenants with Buyer as follows:
(i) Seller has the good and valid right to convey the Property to Buyer without the joinder or approval of any other person or entity whatsoever.
(ii) To Seller's actual knowledge, there is no litigation pending against Seller that arises out of the ownership of the Property or any Parcel. Seller shall notify Buyer promptly of any such litigation of which Seller becomes aware.
(iii) Seller has never filed or been the subject of any filing of a statutory trust duly formed and validly existing petition under the federal bankruptcy law or any federal or state insolvency laws or laws for composition of indebtedness or for the reorganization of debtors.
(iv) There is no pending condemnation or similar proceeding or action affecting the Property or any part thereof, and Seller has received no notice nor has any knowledge that any such proceeding is pending or contemplated.
(v) Except for that certain mortgage and deed of trust in favor of Bank of America, N.A., as agent, which will be released as soon as practicable following Closing, no leases, liens, mortgages, deeds of trust, security agreements, or other encumbrances have been created by, through, or under Seller with respect to the Property or any Parcel.
(vi) Seller has not heretofore and shall not devise, transfer, assign, or otherwise convey the Property or any portion thereof to any other person prior to the Closing Date.
(vii) Neither the entering into this Agreement nor the consummation of the State of Delaware. This Agreement has been, and all the documents executed transactions contemplated herein will cause a violation or breach by Seller which are to be delivered to Purchaser at the Closing will be, duly authorized, executed and delivered by Seller and will be legal, valid and binding obligations of Seller enforceable against Seller in accordance with their respective terms (except to the extent that such enforcement may be limited by applicable bankruptcy, insolvency, moratorium and other principles relating to or limiting the right of contracting parties generally), will be sufficient to convey title (if they purport to do so) and will not violate any provisions of any material agreement contracts, agreements, or instruments to which Seller is a party or to by which Seller or any of the Property or Seller is subject or bound. Subject to the satisfaction of Section 8(a)(i) below, no consent, waiver or approval by any third party is required in connection with the execution and delivery by Seller of this Agreement or the performance by Seller of the obligations to be performed by Seller under this Agreement.
(b) Except Buyer shall acquire the Property "AS IS, WHERE IS" without any obligation of Seller, except as expressly set forth on Exhibit M attached hereto, Seller has not received from any governmental authority written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any violation of any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable herein to the Propertycontrary, to perform any repairs, improvements, maintenance, or other work to the Property or any part thereof, that will not have been corrected prior to Closing norand without, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change except as expressly set forth herein to the zoning classification contrary, any warranties, express or implied, of any proceedings to widen kind from Seller, including, but not limited to, warranties of fitness, merchantability, fitness for a particular purpose, habitability, tenantability, or realign environmental condition. Seller expressly disclaims any streets or highways adjacent representations and warranties with respect to the Property, except as specifically set forth in this Agreement, and Buyer does hereby acknowledge that, in purchasing the Property, Buyer is relying only upon those representations of Seller concerning the Property or of any condemnation proceedingsexpressly set forth as such in this Agreement and in the Deed.
(c) To Seller will refrain from taking any action which could cause any of the foregoing representations or warranties or covenants and agreements of Seller to become incorrect or untrue at any time from the Effective Date through the Closing. Seller shall be deemed to have reaffirmed the representations and warranties contained in this Section 5 at Closing. In the event that Seller or Buyer learns that any of said representations or warranties becomes inaccurate between the Effective Date and the Closing Date, Seller or Buyer shall immediately notify the other party of such change. Seller shall then use its good faith efforts to cure such change within thirty (30) days after giving or receiving notice thereof as required herein. The Closing Date shall be automatically extended in order to allow the running of said thirty (30) day period. In the event Seller so cures such change within said thirty (30) day period, this Agreement shall remain in full force and effect. If Seller is unable to cure such change, Buyer may either (a) terminate this Agreement with respect to the Parcel affected such the failure by giving written notice to Seller and the parties shall have no further rights or obligations hereunder with respect to such Parcel, except for those rights or obligations which expressly survive such termination, or (b) waive such right to terminate and proceed with the transaction pursuant to the remaining terms and conditions of this Agreement. In the event Buyer elects option (b) in the preceding sentence or in the event Buyer elects to close with the actual knowledge that a representation or warranty of Seller herein is untrue or incorrect, the representations and warranties shall be deemed to be automatically amended to reflect said change. If Buyer receives notice prior to Closing that any of Seller’s actual knowledge's representations and warranties are untrue, and (i) the operating statements, income and expense reports and all other contracts or documents required to be delivered to Purchaser pursuant to this Agreement are true, correct and complete copiesSeller has not cured said breach as provided for herein; and (ii) all contracts or documents required Buyer elects to be delivered to Purchaser pursuant to this Agreement are in full force waive said breach and effect, without material default by any party proceed with the purchase and without any right of set-off except as disclosed in writing at the time of such delivery.
(d) There is no master lease sale of the Property to any affiliate of Selleror Parcel, or if such master lease existsthen, unless Seller shall cause have otherwise agreed in writing, Buyer shall be deemed to have waived any claim for breach of such master lease to be terminated at Closing without Purchaser paying any termination feeuntrue representation or warranty. The Rent Roll attached hereto as Exhibit B is true, correct representations and complete warranties contained in all material respects as of the date set forth on the Rent Roll. As of the Closing, the Rent Roll delivered at the Closing will be true, correct and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default by any party and without any right of setoff, except as expressly provided by the terms of such Leases or as disclosed on the Rent Roll attached hereto. The copies of the Leases and other agreements with the tenants under the Leases (the “Tenants”) delivered to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating to the Real Property, have Section 5 shall not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real Property.
(e) Exhibit J attached hereto is a true and complete schedule of all of the Contracts (as hereinafter defined in Section 7), true, complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy of the management agreement currently in effect with respect to the Property. To Seller’s actual knowledge, the Contracts are in full force and effect, without material default by any party and without any claims made for the right of setoff, except as expressly provided by the terms of such Contracts or as disclosed to Purchaser in writing at the time of such delivery. The Contracts constitute the entire agreements with such vendors relating to the Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excluding, however, the Leases and Permitted Encumbrances) affecting the Property which will survive the Closing.
(f) At the Closing, there will be no outstanding contracts made by Seller for the construction or repair of any improvements to the Improvements which have not been fully paid for, and Seller shall cause to be discharged all mechanics’ or materialmen’s liens arising from any labor or materials furnished to the Improvements prior to the Closing.
(g) Except as set forth in Exhibit K attached hereto, there are no pending or, to Seller’s actual knowledge (without any duty of inquiry or investigation), threatened legal proceedings or actions of any kind or character affecting the Property or Seller’s interest therein, including, without limitation, condemnation proceedings.
(h) Seller has not received any actual written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or the Property relating in any way to a Release or compliance with Environmental Laws. For purposes of this Agreement, the phrase “Environmental Laws” shall mean any federal, state or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materials, or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 00
Appears in 2 contracts
Samples: Real Estate Sale and Purchase Agreement (Central Freight Lines Inc), Real Estate Sale and Purchase Agreement (Central Freight Lines Inc)
Representations, Warranties and Covenants of Seller. Seller hereby represents, warrants and covenants affirms to Purchaser and the Trustee that each of the following matters are true representations and correct as of the execution of this Agreement and warranties will also be true and correct as of the Closing, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx XxxxxxxxxClosing Date:
(a) Seller is a statutory trust corporation, duly formed and incorporated, validly existing and in good standing under the laws of the State of Delaware. , with corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder.
(b) The execution and delivery of this Agreement by Seller, the consummation of the transactions contemplated hereby, and the fulfillment of and compliance with the terms and conditions hereof, will not (i) conflict with or result in a breach of or give rise to any default under any of the terms, conditions or provisions of Seller’s charter or by-laws or any term or provision of any material pooling agreement, deed of trust, contract or other agreement or instrument to which Seller is a party or is bound; or (ii) result in the violation of or conflict with any law, rule, regulation, order, judgment or decree of any court or governmental authority having jurisdiction over Seller.
(c) This Agreement has been, been duly and all the documents executed by Seller which are to be delivered to Purchaser at the Closing will be, duly validly authorized, executed and delivered by Seller and, assuming the due authorization, execution and will be delivery hereof by Purchaser, constitutes a legal, valid and binding obligations obligation of Seller Seller, enforceable against Seller in accordance with their respective terms (its terms, except to the extent that as such enforcement may be limited by applicable bankruptcy, insolvency, reorganization, receivership or moratorium or other similar laws affecting creditors’ rights, and other principles relating to or limiting by the right availability of contracting parties generallyequitable remedies (including specific performance and injunctive relief), will regardless of whether such enforcement is considered in a proceeding in equity or at law, and except as enforcement of the indemnification provisions thereof may be sufficient limited by public policy.
(d) Seller is not in default with respect to convey title (if they purport to do so) and will not violate any provisions order or decree of any material agreement to court or any order, regulation or demand of any federal, state, municipal or governmental agency, which Seller is a party or to which the Property or Seller is subject or bound. Subject to the satisfaction default would materially and adversely affect its performance of Section 8(a)(i) below, no consent, waiver or approval by any third party is required in connection with the execution and delivery by Seller of this Agreement or the performance by Seller of the obligations to be performed by Seller under this Agreement.
(b) Except as set forth on Exhibit M attached hereto, Seller has not received from any governmental authority written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any violation of any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable to the Property, or any part thereof, that will not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change to the zoning classification or any proceedings to widen or realign any streets or highways adjacent to the Property or of any condemnation proceedings.
(c) To Seller’s actual knowledge, (i) the operating statements, income and expense reports and all other contracts or documents required to be delivered to Purchaser pursuant to this Agreement are true, correct and complete copies; and (ii) all contracts or documents required to be delivered to Purchaser pursuant to this Agreement are in full force and effect, without material default by any party and without any right of set-off except as disclosed in writing at the time of such delivery.
(de) There is no master lease of the Property to any affiliate of Selleraction, suit or if such master lease exists, Seller shall cause such master lease to be terminated at Closing without Purchaser paying any termination fee. The Rent Roll attached hereto as Exhibit B is true, correct and complete in all material respects as of the date set forth on the Rent Roll. As of the Closing, the Rent Roll delivered at the Closing will be true, correct and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default proceeding before or by any party and without any right of setoff, except as expressly provided by the terms of such Leases court or as disclosed on the Rent Roll attached hereto. The copies of the Leases and other agreements with the tenants under the Leases (the “Tenants”) delivered to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating to the Real Property, have not been materially amended, modified governmental agency or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real Property.
(e) Exhibit J attached hereto is a true and complete schedule of all of the Contracts (as hereinafter defined in Section 7), true, complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy of the management agreement currently in effect with respect to the Property. To Seller’s actual knowledge, the Contracts are in full force and effect, without material default by any party and without any claims made for the right of setoff, except as expressly provided by the terms of such Contracts or as disclosed to Purchaser in writing at the time of such delivery. The Contracts constitute the entire agreements with such vendors relating to the Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excluding, however, the Leases and Permitted Encumbrances) affecting the Property which will survive the Closing.
(f) At the Closing, there will be no outstanding contracts made by Seller for the construction or repair of any improvements to the Improvements which have not been fully paid for, and Seller shall cause to be discharged all mechanics’ or materialmen’s liens arising from any labor or materials furnished to the Improvements prior to the Closing.
(g) Except as set forth in Exhibit K attached hereto, there are no body now pending or, to Seller’s actual knowledge knowledge, threatened, which, if determined adversely to Seller, would materially and adversely affect the ability of Seller to perform and comply with the terms of this Agreement.
(without f) Seller has the full corporate power and authority to purchase, hold and transfer the Conveyed Assets and to execute and deliver, engage in the transactions contemplated by, and perform and observe the terms and conditions of, this Agreement.
(g) No consent, approval, authorization or order of, or registration or filing with, or notice to, any duty court, governmental agency or body or supervisory agent, in each case which has not been obtained, made, or given, as applicable, is required for the execution, delivery and performance by Seller of inquiry or investigation), threatened legal proceedings compliance by Seller with this Agreement or actions the consummation by Seller of any kind or character affecting the Property or Seller’s interest therein, including, without limitation, condemnation proceedingstransactions contemplated by this Agreement.
(h) Seller does not believe, nor does it have any reason or cause to believe, that it cannot perform each and every covenant of Seller contained in this Agreement.
(i) The consummation of the transactions contemplated by this Agreement is being undertaken in the ordinary course of business of Seller and the transfer, assignment and conveyance of the Conveyed Assets pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction.
(j) From and after the Closing Date, Seller will record in its books and records and report the transfer of the Conveyed Assets to Purchaser as a sale for federal income tax purposes and pursuant to generally accepted accounting principles.
(k) Seller has not dealt with any broker, investment banker or agent or other person other than the Underwriter that may be entitled to any commission or compensation in connection with the sale of the Conveyed Assets to Purchaser.
(l) The consideration received any actual written noticeby Seller upon the sale of the Conveyed Assets under this Agreement constitutes fair consideration and reasonably equivalent value to Seller for the Conveyed Assets.
(m) Seller will be solvent at all relevant times prior to, and will not be rendered insolvent by, the sale of the Conveyed Assets. The Seller will not be left with unreasonably small capital to conduct its business as a result of the sale hereunder and Seller believes that it will be able to, and it intends to, pay its debts as they mature. The sale of the Conveyed Assets is not undertaken with the intent to hinder, delay, or defraud any of Seller’s creditors.
(n) Seller hereby represents and warrants to Purchaser, as to each of the Conveyed Assets as of the Closing Date, that:
(i) All steps necessary to transfer all of Seller’s right, title and interest in and to the Conveyed Assets have been taken by Seller;
(ii) Immediately prior to the transfer contemplated by this Agreement, Seller is the sole owner and holder of the Conveyed Assets free and clear of any and all liens, pledges, charges or security interests of any nature and has full right and authority, subject to no interest or participation of or agreement with any other party, to sell and assign the same pursuant to this Agreement;
(iii) Seller has acquired the Conveyed Assets in the ordinary course of its business, in good faith, for value and without notice of any claim against or claim to the Conveyed Assets on the part of any person; and
(iv) Seller has no actual or constructive knowledge (without any duty of inquiry or investigation) notice of any civilinterest in the Conveyed Assets contrary to the Trustee’s interest under the Pooling Agreement.
(o) Seller hereby represents and warrants to Purchaser as to the Certificates, criminal that:
(i) If the Seller ever sells any of the Certificates, it will sell at least 25% of its beneficial ownership interest in the Certificates to one or administrative suitmore unaffiliated third parties; and
(ii) If Seller ever owns more than 75% of the beneficial ownership interest in the Certificates, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or it will own 100% of the Property relating in any way to a Release or compliance with Environmental Laws. For purposes of this Agreement, the phrase “Environmental Laws” shall mean any federal, state or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materials, or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 00Certificates.
Appears in 2 contracts
Samples: Underlying Certificate Purchase Agreement (First Horizon Asset Sec Mort Pass THR Certs Ser 2006-Re2), Underlying Certificates Purchase Agreement (First Horizon Asset Sec Mort Pass THR Certs Ser 2006-Re1)
Representations, Warranties and Covenants of Seller. Seller hereby represents, warrants and covenants to Purchaser that makes the following matters are true representations, warranties and correct as of the execution of this Agreement and will also be true and correct as of the Closing, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx Xxxxxxxxxcovenants:
(a) Seller is a statutory trust joint venture between Xxxxxxxx Coal Company (PCC) and The North American Coal Corporation (NAC) duly formed organized and validly existing in good standing under the laws of the State of DelawareTexas and authorized to do business in Mississippi. PCC is a Nevada corporation and NAC is a Delaware corporation. Each of Seller, PCC and NAC has full power and authority to carry on its business as presently conducted and to execute and deliver this Agreement and perform its obligations under this Agreement. Seller is duly qualified to do business and is in good standing in each jurisdiction, including the State of Mississippi, in which Seller is required to qualify to do business as the joint venture that is Seller.
(b) The execution, delivery and performance by Seller of this Agreement have been duly authorized by all necessary action on the part of Seller, and neither the execution, delivery nor the performance of this Agreement by Seller nor the fulfillment of the terms, provisions and conditions of this Agreement by Seller (i) requires any approval or consent of any trustees or holders of any indebtedness or obligations of Seller, other than in connection with obtaining necessary financing for the Mine, (ii) subject to receipt of all necessary regulatory approvals with respect to the Mine, contravenes any law or any government rule, regulation, or order binding on Seller, (iii) violates the Joint Venture Agreement of Seller or requires any additional approval or consent of the joint venturers, PCC and NAC, or (iv) contravenes the provisions of, or constitutes an event of default (or other event which after lapse of time, notice, or both would constitute an event of default) under any indenture, deed of trust, contract, or other agreement to which Seller is a party or by which Seller is affected or bound.
(c) This Agreement has been, and all the documents executed by Seller which are to be delivered to Purchaser at the Closing will be, been duly authorized, executed and delivered by Seller and will be legal, constitutes a legal valid and binding obligations agreement of Seller enforceable against Seller in accordance with their respective terms (except its terms, subject, however, to the extent that such enforcement may be limited by applicable effects of bankruptcy, insolvency, reorganization, moratorium and other similar laws, as well as to general principles relating to of equity (regardless of whether enforceability is considered in a proceeding in equity or limiting the right of contracting parties generallyat law).
(d) There are no actions, will be sufficient to convey title (if they purport to do so) and will not violate any provisions of any material agreement to which Seller is a party suits or to which the Property or Seller is subject or bound. Subject proceedings pending except for pending permit applications with respect to the satisfaction Mine, nor, to the best of Section 8(a)(i) belowSeller's knowledge, no consentare any actions, waiver suits or approval by proceedings threatened before any third party is required in connection with court, administrative agency, arbitrator or governmental body which might, if determined adversely to Seller, materially and adversely affect the execution business or financial condition of Seller or materially and delivery by adversely affect the ability of Seller of this Agreement or the performance by Seller of the to perform its obligations to be performed by Seller under this Agreement.
(be) Except as set forth on Exhibit M attached heretoTo the best of Seller's knowledge and belief, Seller has not received from any governmental authority written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any violation of any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable to the Property, or any part thereof, that will not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change to the zoning classification or any proceedings to widen or realign any streets or highways adjacent to the Property or of any condemnation proceedings.
(c) To Seller’s actual knowledge, (i) the operating statements, income and expense reports and all other contracts or documents required to be delivered to Purchaser pursuant to this Agreement are true, correct and complete copies; and (ii) all contracts or documents required to be delivered to Purchaser pursuant to this Agreement are is in full force and effect, without material default by any party and without any right of set-off except as disclosed in writing at the time of such delivery.
(d) There is no master lease of the Property to any affiliate of Seller, or if such master lease exists, Seller shall cause such master lease to be terminated at Closing without Purchaser paying any termination fee. The Rent Roll attached hereto as Exhibit B is true, correct and complete compliance in all material respects as with all applicable statutes and regulations of the date set forth on the Rent Roll. As United States of America, all states and municipalities and all agencies and instrumentalities of the Closingforegoing, the Rent Roll delivered at the Closing will be true, correct and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default by any party and without any right of setoff, except as expressly provided by the terms of such Leases or as disclosed on the Rent Roll attached hereto. The copies of the Leases and other agreements with the tenants under the Leases (the “Tenants”) delivered to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating to the Real Property, have not been materially amended, modified or supplemented, except for such amendments, modifications conduct of its business and supplements delivered to Purchaserownership of its properties, and there are no other leases or tenancy agreements affecting Seller shall continue to be in compliance in all material respects until the Real Property.
(e) Exhibit J attached hereto Term is a true and complete schedule of all of the Contracts (as hereinafter defined in Section 7), true, complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy of the management agreement currently in effect with respect completed to the Property. To Seller’s actual knowledge, the Contracts are in full force and effect, without material default by any party and without any claims made for the right of setoff, except as expressly provided by the terms of such Contracts or as disclosed extent necessary to Purchaser in writing at the time of such delivery. The Contracts constitute the entire agreements with such vendors relating to the Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excluding, however, the Leases and Permitted Encumbrances) affecting the Property which will survive the Closingperform its obligations under this Agreement.
(f) At the Closing, there will be no outstanding contracts made by Seller for the construction or repair of any improvements to the Improvements which have not been fully paid forhas, and shall maintain throughout the Term of this Agreement, good and marketable title to sufficient Dedicated Lignite in, on or under the Lignite Property of a quality and in quantities which will enable Seller to timely satisfy all the requirements of this Agreement. Seller shall make no sales of lignite outside this Agreement which will cause the amount of Dedicated Lignite to be discharged all mechanics’ or materialmen’s liens arising from any labor or materials furnished fall below that required to the Improvements prior fulfill its obligations to the ClosingBuyer hereunder.
(g) Except as set forth PCC and NAC each agree that they will not sell or otherwise transfer their interest in Exhibit K attached hereto, there are no pending or, to Seller’s actual knowledge (without any duty of inquiry or investigation), threatened legal proceedings or actions of any kind or character affecting the Property or Seller’s interest therein, including, without limitation, condemnation proceedings.
(h) Seller has not received any actual written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or the Property relating in any way Mine (other than to a Release Seller or compliance with Environmental Laws. For purposes Affiliates of this AgreementSeller) without the consent of Buyer, the phrase “Environmental Laws” which consent of Buyer shall mean any federal, state or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materials, or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 00not be unreasonably withheld.
Appears in 2 contracts
Samples: Lignite Sales Agreement (Nacco Industries Inc), Lignite Sales Agreement (Nacco Industries Inc)
Representations, Warranties and Covenants of Seller. (a) The Seller hereby represents, represents and warrants to and covenants to Purchaser that with the following matters are true and correct Purchaser, as of the execution of this Agreement and will also be true and correct as of the Closingdate hereof, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx Xxxxxxxxxthat:
(ai) The Seller is a statutory trust national banking association duly formed and organized, validly existing and in good standing under the laws of the State United States and the Seller has taken all necessary corporate action to authorize the execution, delivery and performance of Delaware. this Agreement by it, and has the power and authority to execute, deliver and perform this Agreement and all transactions contemplated hereby.
(ii) This Agreement has been, been duly and all the documents executed by Seller which are to be delivered to Purchaser at the Closing will be, duly validly authorized, executed and delivered by Seller the Seller, all requisite action by the Seller's directors and will be legalofficers has been taken in connection therewith, valid and (assuming the due authorization, execution and delivery hereof by the Purchaser) this Agreement constitutes the valid, legal and binding obligations agreement of Seller the Seller, enforceable against the Seller in accordance with their respective terms (its terms, except to the extent that as such enforcement may be limited by applicable (A) laws relating to bankruptcy, insolvency, moratorium and fraudulent transfer, reorganization, receivership or moratorium, (B) other principles laws relating to or limiting affecting the right rights of contracting parties creditors generally, or (C) general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law), will be sufficient to convey title .
(if they purport to do soiii) The execution and delivery of this Agreement by the Seller and the Seller's performance and compliance with the terms of this Agreement will not (A) violate the Seller's charter or bylaws, (B) violate any provisions law or regulation or any administrative decree or order to which it is subject or (C) constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material contract, agreement or other instrument to which the Seller is a party or to by which the Property or Seller is bound, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or materially and adversely affect its performance hereunder.
(iv) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or other governmental agency or body, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or materially and adversely affect its performance hereunder.
(v) The Seller is not a party to or bound by any agreement or instrument or subject to any charter, bylaws or bound. Subject any other corporate restriction or any judgment, order, writ, injunction, decree, law or regulation that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the ability of the Seller to perform its obligations under this Agreement or that requires the consent of any third person to the satisfaction of Section 8(a)(i) below, no consent, waiver or approval by any third party is required in connection with the execution and delivery by Seller of this Agreement or the performance by the Seller of its obligations under this Agreement (except to the extent such consent has been obtained).
(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 or the consummation of the transactions contemplated by this Agreement except as have previously been obtained, and no bulk sale law applies to such transactions.
(vii) None of the sale of the Mortgage Loans by the Seller, the transfer of the Mortgage Loans to the Trustee, and the execution, delivery or performance of this Agreement by the Seller, results or will result in the creation or imposition of any lien on any of the Seller's assets or property that would have a material adverse effect upon the Seller's ability to perform its duties and obligations under this Agreement or materially impair the ability of the Purchaser to be performed realize on the Mortgage Loans.
(viii) There is no action, suit, proceeding or investigation pending or to the knowledge of the Seller, threatened against the Seller in any court or by or before any other governmental agency or instrumentality which would, in the Seller's good faith and reasonable judgment, prohibit its entering into this Agreement or materially and adversely affect the validity of this Agreement or the performance by the Seller of its obligations under this Agreement.
(ix) Under generally accepted accounting principles ("GAAP") and for federal income tax purposes, the Seller will report the transfer of the Mortgage Loans to the Purchaser as a sale of the Mortgage Loans to the Purchaser in exchange for consideration consisting of a cash amount equal to the Purchase Consideration. The consideration received by the Seller upon the sale of the Mortgage Loans to the Purchaser will constitute at least reasonably equivalent value and fair consideration for the Mortgage Loans. The Seller will be solvent at all relevant times prior to, and will not be rendered insolvent by, the sale of the Mortgage Loans to the Purchaser. The Seller is not selling the Mortgage Loans to the Purchaser with any intent to hinder, delay or defraud any of the creditors of the Seller.
(b) Except The Seller hereby makes the representations and warranties contained in Schedule I hereto for the benefit of the Purchaser and the Trustee for the benefit of the Certificateholders as of the Closing Date (unless a different date is specified therein), with respect to (and solely with respect to) each Mortgage Loan, subject, however, to the exceptions set forth on Exhibit M attached hereto, Seller has not received from any governmental authority written notice, and Seller has no actual knowledge (without any duty Annex A to Schedule I of inquiry or investigation) of any violation of any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable to the Property, or any part thereof, that will not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change to the zoning classification or any proceedings to widen or realign any streets or highways adjacent to the Property or of any condemnation proceedingsthis Agreement.
(c) To Seller’s actual knowledgeIf the Seller discovers or receives written notice of a Document Defect or a Breach relating to a Mortgage Loan pursuant to Section 2.03(a) of the Pooling and Servicing Agreement, then the Seller shall, not later than 90 days from such discovery or receipt of such notice (or, in the case of a Document Defect or Breach relating to a Mortgage Loan not being a "qualified mortgage" within the meaning of the REMIC Provisions (a "Qualified Mortgage"), not later than 90 days from any party to the Pooling and Servicing Agreement discovering such Document Defect or Breach, provided the Seller receives such notice in a timely manner), if such Document Defect or Breach materially and adversely affects the value of the related Mortgage Loan or the interests of the Certificateholders therein, cure such Document Defect or Breach, as the case may be, in all material respects, which shall include payment of losses and any Additional Trust Fund Expenses associated therewith or, if such Document Defect or Breach (other than omissions due solely to a document not having been returned by the related recording office) cannot be cured within such 90-day period, (i) repurchase the operating statementsaffected Mortgage Loan (which, income for the purposes of this clause (i), shall include an REO Loan) at the applicable Purchase Price (as defined in the Pooling and expense reports Servicing Agreement) not later than the end of such 90-day period or (ii) substitute a Qualified Substitute Mortgage Loan for such affected Mortgage Loan (which, for purposes of this clause (ii), shall include an REO Loan) not later than the end of such 90-day period (and all other contracts in no event later than the second anniversary of the Closing Date) and pay the Master Servicer for deposit into the Collection Account any Substitution Shortfall Amount in connection therewith; provided, however, that, unless the Document Defect or documents required Breach would cause the Mortgage Loan not to be a Qualified Mortgage, if such Document Defect or Breach is capable of being cured but not within such 90-day period and the Seller has commenced and is diligently proceeding with the cure of such Document Defect or Breach within such 90-day period, the Seller shall have an additional 90 days to complete such cure (or, failing such cure, to repurchase or substitute the related Mortgage Loan (which, for purposes of such repurchase or substitution, shall include an REO Loan)); and provided, further, that with respect to such additional 90-day period, the Seller shall have delivered an officer's certificate to Purchaser pursuant the Trustee setting forth the reason(s) such Document Defect or Breach is not capable of being cured within the initial 90-day period and what actions the Seller is pursuing in connection with the cure thereof and stating that the Seller anticipates that such Document Defect or Breach will be cured within the additional 90-day period; and provided, further, that no Document Defect (other than with respect to this Agreement a Specially Designated Mortgage Loan Document) shall be considered to materially and adversely affect the interests of the Certificateholders or the value of the related Mortgage Loan unless the document with respect to which the Document Defect exists is required in connection with an imminent enforcement of the mortgagee's rights or remedies under the related Mortgage Loan, defending any claim asserted by any borrower or third party with respect to the Mortgage Loan, establishing the validity or priority of any lien on any collateral securing the Mortgage Loan or for any immediate servicing obligations.
(1) the weighted average debt service coverage ratio for all the remaining Crossed Loans for the four calendar quarters immediately preceding such repurchase or substitution is not less than the weighted average debt service coverage ratio for all such Crossed Loans, including the affected Crossed Loan, for the four calendar quarters immediately preceding such repurchase or substitution, and (2) the weighted average loan to-value ratio for the remaining Crossed Loans determined at the time of repurchase or substitution based upon an appraisal obtained by the Special Servicer at the expense of the Seller shall not be greater than the weighted average loan-to-value ratio for all such Crossed Loans, including the affected Crossed Loan determined at the time of repurchase or substitution based upon an appraisal obtained by the Special Servicer at the expense of the Seller; provided, that if such debt service coverage and loan-to-value criteria are truesatisfied, correct any other Crossed Loan (that is not the Crossed Loan directly affected by the subject Document Defect or Breach), shall be released from its cross-collateralization and complete copiescross-default provision so long as such Crossed Loan (that is not the Crossed Loan directly affected by the subject Document Defect or Breach) is held in the Trust Fund; and provided, further, that the repurchase or replacement of less than all such Crossed Loans and the release of any Crossed Loan from a cross-collateralization and cross-default provision shall be further subject to (i) the delivery by the Seller to the Trustee, at the expense of the Seller, of an Opinion of Counsel to the effect that such release would not cause either of REMIC I or REMIC II to fail to qualify as a REMIC under the Code or result in the imposition of any tax on "prohibited transactions" or "contributions" after the Startup Day under the REMIC Provisions and (ii) the consent of the Controlling Class Representative (if one is then acting), which consent shall not be unreasonably withheld or delayed. In the event that one or more of such other Crossed Loans satisfy the aforementioned criteria, the Seller may elect either to repurchase or substitute for only the affected Crossed Loan as to which the related Document Defect or Breach exists or to repurchase or substitute for all contracts of the Crossed Loans in the related Crossed Loan Group. All documentation relating to the termination of the cross-collateralization provisions of a Crossed Loan being repurchased shall be prepared at the expense of the Seller and, where required, with the consent of the related borrower. For a period of two years from the Closing Date, so long as there remains any Mortgage File relating to a Mortgage Loan as to which there is any uncured Document Defect or documents required Breach known to the Seller, the Seller shall provide, once every ninety days, the officer's certificate to the Trustee described above as to the reason(s) such Document Defect or Breach remains uncured and as to the actions being taken to pursue cure; provided, however, that, without limiting the effect of the foregoing provisions of this Section 3(c), if such Document Defect or Breach shall materially and adversely affect the value of such Mortgage Loan or the interests of the holders of the Certificates therein (subject to the last proviso in the sole sentence of the preceding paragraph), the Seller shall in all cases on or prior to the second anniversary of the Closing Date either cause such Document Defect or Breach to be delivered to Purchaser pursuant to this Agreement are in full force and effect, without material default by any party and without any right of set-off except as disclosed in writing at cured or repurchase or substitute for the time of such delivery.
(d) There is no master lease of the Property to any affiliate of Seller, or if such master lease exists, Seller shall cause such master lease to be terminated at Closing without Purchaser paying any termination feeaffected Mortgage Loan. The Rent Roll attached hereto delivery of a commitment to issue a policy of lender's title insurance as Exhibit B is true, correct and complete described in all material respects as of the date representation 8 set forth on the Rent Roll. As Schedule I hereto in lieu of the Closing, the Rent Roll delivered at the Closing will be true, correct and complete. The copies delivery of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default by any party and without any right policy of setoff, except as expressly provided by the terms of such Leases lender's title insurance shall not be considered a Document Defect or as disclosed on the Rent Roll attached hereto. The copies of the Leases and other agreements with the tenants under the Leases (the “Tenants”) delivered to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating to the Real Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real Property.
(e) Exhibit J attached hereto is a true and complete schedule of all of the Contracts (as hereinafter defined in Section 7), true, complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy of the management agreement currently in effect Breach with respect to the Property. To Seller’s any Mortgage File if such actual knowledge, the Contracts are in full force and effect, without material default by any party and without any claims made for the right policy of setoff, except as expressly provided by the terms of such Contracts or as disclosed to Purchaser in writing at the time of such delivery. The Contracts constitute the entire agreements with such vendors relating insurance is delivered to the Property, have Trustee or a Custodian on its behalf not been materially amended, modified or supplemented, except for such amendments, modifications and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excluding, however, later than the Leases and Permitted Encumbrances) affecting 90th day following the Property which will survive the ClosingClosing Date.
(f) At the Closing, there will be no outstanding contracts made by Seller for the construction or repair of any improvements to the Improvements which have not been fully paid for, and Seller shall cause to be discharged all mechanics’ or materialmen’s liens arising from any labor or materials furnished to the Improvements prior to the Closing.
(g) Except as set forth in Exhibit K attached hereto, there are no pending or, to Seller’s actual knowledge (without any duty of inquiry or investigation), threatened legal proceedings or actions of any kind or character affecting the Property or Seller’s interest therein, including, without limitation, condemnation proceedings.
(h) Seller has not received any actual written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or the Property relating in any way to a Release or compliance with Environmental Laws. For purposes of this Agreement, the phrase “Environmental Laws” shall mean any federal, state or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materials, or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 00
Appears in 2 contracts
Samples: Mortgage Loan Purchase Agreement (Merrill Lynch Mortgage Trust 2005-McP1), Mortgage Loan Purchase Agreement (Merrill Lynch Mortgage Trust 2005-McP1)
Representations, Warranties and Covenants of Seller. (a) The Seller hereby represents, represents and warrants to and covenants to Purchaser that with the following matters are true and correct Purchaser, as of the execution of this Agreement and will also be true and correct as of the Closingdate hereof, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx Xxxxxxxxxthat:
(ai) The Seller is a statutory trust national banking association duly formed organized and validly existing under the laws of the State United States of Delaware. America, is duly qualified as a foreign organization in good standing in all jurisdictions to the extent such qualification is necessary to hold and sell the Mortgage Loans or otherwise comply with its obligations under this Agreement, except where the failure to be so qualified would not have a material adverse effect on its ability to perform its obligations hereunder, and possesses all requisite authority and power to carry on its business as currently conducted by it and to execute, deliver and comply with its obligations under the terms of this Agreement.
(ii) This Agreement has been, been duly and all the documents executed by Seller which are to be delivered to Purchaser at the Closing will be, duly validly authorized, executed and delivered by the Seller and, assuming due authorization, execution and will be delivery hereof by the Purchaser, constitutes a legal, valid and binding obligations obligation of Seller the Seller, enforceable against the Seller in accordance with their respective terms (its terms, except to the extent that as such enforcement may be limited by applicable (A) bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws affecting the enforcement of creditors' rights in general, and other (B) general equity principles relating to (regardless of whether such enforcement is considered in a proceeding in equity or limiting at law).
(iii) The execution and delivery of this Agreement by the right Seller and the Seller's performance and compliance with the terms of contracting parties generally), will be sufficient to convey title (if they purport to do so) and this Agreement will not (A) violate the Seller's organizational documents, (B) violate any provisions law or regulation or any administrative decree or order to which the Seller is subject or (C) constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material contract, agreement or other instrument to which the Seller is a party or to by which the Property or Seller is subject bound.
(iv) The Seller is not in default with respect to any order or bound. Subject decree of any court or any order, regulation or demand of any federal, state, municipal or other governmental agency or body, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect its performance hereunder.
(v) The Seller is not a party to the satisfaction of Section 8(a)(i) below, no consent, waiver or approval bound by any agreement or instrument or subject to any organizational document or any other corporate restriction or any judgment, order, writ, injunction, decree, law or regulation that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the ability of the Seller to perform its obligations under this Agreement or that requires the consent of any third party is required in connection with person to the execution and delivery by Seller of this Agreement by the Seller or the performance by the Seller of the its obligations to be performed by Seller under this Agreement.
(vi) Except for the recordation and/or filing of assignments and other transfer documents with respect to the Mortgage Loans, as contemplated by Section 2(d), no consent, approval, authorization or order of, registration or filing with, or notice to, 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; and no bulk sale law applies to such transactions.
(vii) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller that would, in the Seller's good faith and reasonable judgment, prohibit its entering into this Agreement or materially and adversely affect the performance by the Seller of its obligations under this Agreement.
(viii) The Seller intends to treat the transfer of the Mortgage Loans to the Purchaser as a sale for accounting and tax purposes. In connection with the foregoing, the Seller shall cause all of its records to reflect such transfer as a sale (as opposed to a secured loan). The consideration received by the Seller upon the sale of the Mortgage Loans to the Purchaser will constitute at least reasonably equivalent value and fair consideration for the Mortgage Loans. The Seller will be solvent at all relevant times prior to, and will not be rendered insolvent by, the sale of the Mortgage Loans to the Purchaser. The Seller is not selling the Mortgage Loans to the Purchaser with any intent to hinder, delay or defraud any of the creditors of the Seller. After giving effect to its transfer of the Mortgage Loans to the Purchaser, as provided herein, the value of the Seller's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Seller's debts and obligations, including contingent and unliquidated debts and obligations of the Seller, and the Seller will not be left with unreasonably small assets or capital with which to engage in and conduct its business. The Mortgage Loans do not constitute all or substantially all of the assets of the Seller. The Seller does not intend to, and does not believe that it will, incur debts or obligations beyond its ability to pay such debts and obligations as they mature.
(ix) No proceedings looking toward liquidation, dissolution or bankruptcy of the Seller are pending or contemplated.
(b) Except The Seller hereby makes, for the benefit of the Purchaser, with respect to each Mortgage Loan, as of the Closing Date or as of such other date expressly set forth therein, each of the representations and warranties set forth on Exhibit M B attached hereto, Seller has not received from any governmental authority written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any violation of any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable to the Property, or any part thereof, that will not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change to the zoning classification or any proceedings to widen or realign any streets or highways adjacent to the Property or of any condemnation proceedingsexcept as otherwise set forth on Exhibit C attached hereto.
(c) To Seller’s actual knowledgeThe Seller further represents and warrants that the Mortgagor under the Peter Cooper Village & Stuyvesant Xxxx Xxxxxxxe Loan, which Mortgaged Property is a Significant Obligor, is required pursuant to Section 5.11(c) of the related loan agreement to deliver to the related lender within the specified timeframes updated net operating income for the Significant Obligor (ias required by Item 1112(b) the operating statementsof Regulation AB) for inclusion in each related Form 10-D or Form 10-K, income and expense reports and all other contracts or documents required as applicable, to be delivered to Purchaser pursuant to this Agreement are true, correct and complete copies; and (ii) all contracts or documents required to be delivered to Purchaser pursuant to this Agreement are in full force and effect, without material default by any party and without any right of set-off except as disclosed in writing at the time of such delivery.
(d) There is no master lease of the Property to any affiliate of Seller, or if such master lease exists, Seller shall cause such master lease to be terminated at Closing without Purchaser paying any termination fee. The Rent Roll attached hereto as Exhibit B is true, correct and complete in all material respects as of the date set forth on the Rent Roll. As of the Closing, the Rent Roll delivered at the Closing will be true, correct and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default by any party and without any right of setoff, except as expressly provided filed by the terms of such Leases or as disclosed on the Rent Roll attached hereto. The copies of the Leases and other agreements with the tenants under the Leases (the “Tenants”) delivered to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating to the Real Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real PropertyTrust.
(e) Exhibit J attached hereto is a true and complete schedule of all of the Contracts (as hereinafter defined in Section 7), true, complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy of the management agreement currently in effect with respect to the Property. To Seller’s actual knowledge, the Contracts are in full force and effect, without material default by any party and without any claims made for the right of setoff, except as expressly provided by the terms of such Contracts or as disclosed to Purchaser in writing at the time of such delivery. The Contracts constitute the entire agreements with such vendors relating to the Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excluding, however, the Leases and Permitted Encumbrances) affecting the Property which will survive the Closing.
(f) At the Closing, there will be no outstanding contracts made by Seller for the construction or repair of any improvements to the Improvements which have not been fully paid for, and Seller shall cause to be discharged all mechanics’ or materialmen’s liens arising from any labor or materials furnished to the Improvements prior to the Closing.
(g) Except as set forth in Exhibit K attached hereto, there are no pending or, to Seller’s actual knowledge (without any duty of inquiry or investigation), threatened legal proceedings or actions of any kind or character affecting the Property or Seller’s interest therein, including, without limitation, condemnation proceedings.
(h) Seller has not received any actual written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or the Property relating in any way to a Release or compliance with Environmental Laws. For purposes of this Agreement, the phrase “Environmental Laws” shall mean any federal, state or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materials, or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 00
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (COBALT CMBS Commercial Mortgage Trust 2007-C2)
Representations, Warranties and Covenants of Seller. (a) The Seller hereby represents, represents and warrants to and covenants to Purchaser that with the following matters are true and correct Purchaser, as of the execution of this Agreement and will also be true and correct as of the Closingdate hereof, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx Xxxxxxxxxthat:
(ai) The Seller is a statutory trust duly formed national banking association organized and validly existing and in good standing under the laws of the State United States of Delaware. America and possesses all requisite authority, power, licenses, permits and franchises to carry on its business as currently conducted by it and to execute, deliver and comply with its obligations under the terms of this Agreement;
(ii) This Agreement has been, been duly and all the documents executed by Seller which are to be delivered to Purchaser at the Closing will be, duly validly authorized, executed and delivered by the Seller and, assuming due authorization, execution and will be delivery hereof by the Purchaser, constitutes a legal, valid and binding obligations obligation of Seller the Seller, enforceable against the Seller in accordance with their respective terms (its terms, except to the extent that as such enforcement may be limited by applicable bankruptcy, insolvency, reorganization, receivership, moratorium and other laws affecting the enforcement of creditors' rights in general, as they may be applied in the context of the insolvency of a national banking association, and by general equity principles relating to (regardless of whether such enforcement is considered in a proceeding in equity or limiting the right of contracting parties generallyat law), will be sufficient and by public policy considerations underlying the securities laws, to convey title (if they the extent that such public policy considerations limit the enforceability of the provisions of this Agreement which purport to do soprovide indemnification from liabilities under applicable securities laws;
(iii) The execution and delivery of this Agreement by the Seller and the Seller's performance and compliance with the terms of this Agreement will not (A) violate the Seller's articles of association, or bylaws, (B) violate any provisions law or regulation or any administrative decree or order to which it is subject or (C) constitute a material default (or an event which, with notice or lapse of time, or both, would constitute a material default) under, or result in the breach of, any material contract, agreement or other instrument to which the Seller is a party or to by which the Property or Seller is bound;
(iv) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or other governmental agency or body, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or have consequences that would materially and adversely affect its performance hereunder;
(v) The Seller is not a party to or bound by any agreement or instrument or subject to any articles of association, bylaws or bound. Subject any other corporate restriction or any judgment, order, writ, injunction, decree, law or regulation that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the ability of the Seller to perform its obligations under this Agreement or that requires the consent of any third person to the satisfaction of Section 8(a)(i) below, no consent, waiver or approval by any third party is required in connection with the execution and delivery by Seller of this Agreement or the performance by the Seller of its obligations under this Agreement (except to the extent such consent has been obtained);
(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 or the consummation of the transactions contemplated by this Agreement except as have previously been obtained, and no bulk sale law applies to such transactions;
(vii) No litigation is pending or, to the Seller's knowledge, threatened against the Seller that would, in the Seller's good faith and reasonable judgment, prohibit its entering into this Agreement or materially and adversely affect the performance by the Seller of its obligations to be performed by Seller under this Agreement; and
(viii) Under generally accepted accounting principles ("GAAP") and for federal income tax purposes, the Seller will report the transfer of the Mortgage Loans to the Purchaser as a sale of the Mortgage Loans to the Purchaser in exchange for consideration consisting of a cash amount equal to the Aggregate Purchase Price. The consideration received by the Seller upon the sale of the Mortgage Loans to the Purchaser will constitute at least reasonably equivalent value and fair consideration for the Mortgage Loans. The Seller will be solvent at all relevant times prior to, and will not be rendered insolvent by, the sale of the Mortgage Loans to the Purchaser. The Seller is not selling the Mortgage Loans to the Purchaser with any intent to hinder, delay or defraud any of the creditors of the Seller.
(b) Except The Seller hereby makes the representations and warranties contained in Schedule I and Schedule II hereto for the benefit of the Purchaser and the Trustee for the benefit of the Certificateholders as of the Closing Date, with respect to (and solely with respect to) each Mortgage Loan, which representations and warranties are subject to the exceptions set forth on Exhibit M attached hereto, Seller has not received from any governmental authority written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any violation of any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable to the Property, or any part thereof, that will not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change to the zoning classification or any proceedings to widen or realign any streets or highways adjacent to the Property or of any condemnation proceedingsSchedule III.
(c) To Seller’s If the Seller receives written notice of a Document Defect or a Breach pursuant to Section 2.03(a) of the Pooling and Servicing Agreement relating to a Mortgage Loan, then the Seller shall not later than 90 days from receipt of such notice (or, in the case of a Document Defect or Breach relating to a Mortgage Loan not being a "qualified mortgage" within the meaning of the REMIC Provisions (a "Qualified Mortgage"), not later than 90 days from any party to the Pooling and Servicing Agreement discovering such Document Defect or Breach provided the Seller receives such notice in a timely manner), if such Document Defect or Breach shall materially and adversely affect the value of the applicable Mortgage Loan or the interests of the Certificateholders therein, cure such Document Defect or Breach, as the case may be, in all material respects, which shall include payment of actual knowledgelosses and any Additional Trust Fund Expenses directly resulting therefrom or, if such Document Defect or Breach (other than omissions solely due to a document not having been returned by the related recording office) cannot be cured within such 90-day period, (i) repurchase the operating statements, income and expense reports and all other contracts affected Mortgage Loan at the applicable Purchase Price not later than the end of such 90-day period or documents required to be delivered to Purchaser pursuant to this Agreement are true, correct and complete copies; and (ii) all contracts or documents required substitute a Qualified Substitute Mortgage Loan (other than with respect to the Starrett-Lehigh Building Loan and the Starrett-Lehigh Building Subordinate Loan, for which no substitution will be permitted) for such affected Mortgage Loan not later than the end of such 90-day period (and in no event later than the second anniversary of the Closing Date) and pay the Master Servicer for deposit into the Certificate Account, any Substitution Shortfall Amount in connection therewith; provided, however, that unless the Breach would cause the Mortgage Loan not to be a Qualified Mortgage, and if such Document Defect or Breach is capable of being cured but not within such 90-day period and the Seller has commenced and is diligently proceeding with the cure of such Document Defect or Breach within such 90-day period, such Seller shall have an additional 90 days to complete such cure (or, failing such cure, to repurchase or substitute the related Mortgage Loan); and provided, further, that with respect to such additional 90-day period the Seller shall have delivered an officer's certificate to the Trustee setting forth what actions the Seller is pursuing in connection with the cure thereof and stating that the Seller anticipates that such Document Defect or Breach will be cured within the additional 90-day period; and provided; further, that no Document Defect (other than with respect to a Mortgage Note, Mortgage, title insurance policy, Ground Lease or any letter of credit) shall be considered to materially and adversely affect the value of the related Mortgage Loan or the interests of the Certificateholders therein unless the document with respect to which the Document Defect exists is required in connection with an imminent enforcement of the mortgagee's rights or remedies under the related Mortgage Loan, defending any claim asserted by any borrower or third party with respect to the Mortgage Loan, establishing the validity or priority of any lien or any collateral securing the Mortgage Loan or for any immediate significant servicing obligations. For a period of two years from the Closing Date, so long as there remains any Mortgage File relating to a Mortgage Loan as to which there is any uncured Document Defect or Breach, the Seller shall provide the officer's certificate to the Trustee described above as to the reasons such Document Defect or Breach remains uncured and as to the actions being taken to pursue cure. Notwithstanding the foregoing, the delivery of a commitment to issue a policy of lender's title insurance as described in paragraph 12 of Schedule I hereof in lieu of the delivery of the actual policy of lender's title insurance shall not be considered a Document Defect or Breach with respect to any Mortgage File if such actual policy of insurance is delivered to Purchaser pursuant to this Agreement are in full force and effect, without material default by any party and without any right of set-off except as disclosed in writing at the time of such deliveryTrustee or a Custodian on its behalf not later than the 90th day following the Closing Date.
(d) There If (i) any Mortgage Loan is no master lease required to be repurchased or substituted for in the manner described above, (ii) such Mortgage Loan is a Crossed Loan, and (iii) the applicable Document Defect or Breach does not constitute a Document Defect or Breach, as the case may be, as to any other Crossed Loan in such Crossed Group (without regard to this paragraph), then the applicable Document Defect or Breach, as the case may be, will be deemed to constitute a Document Defect or Breach, as the case may be, as to each other Crossed Loan in the Crossed Group for purposes of this paragraph, and the Seller will be required to repurchase or substitute for all of the Property remaining Crossed Loan(s) in the related Crossed Group as provided in the immediately preceding paragraph unless such other Crossed Loans in such Crossed Group satisfy the Crossed Loan Repurchase Criteria and satisfy all other criteria for substitution or repurchase, as applicable, of Mortgage Loans set forth herein. In the event that the remaining Crossed Loans satisfy the aforementioned criteria, the Seller may elect either to repurchase or substitute for only the affected Crossed Loan as to which the related Breach or Document Defect exists or to repurchase or substitute for all of the Crossed Loans in the related Crossed Group. The Seller shall be responsible for the cost of any affiliate Appraisal required to be obtained by the Master Servicer to determine if the Crossed Loan Repurchase Criteria have been satisfied, so long as the scope and cost of Sellersuch Appraisal has been approved by the Seller (such approval not to be unreasonably withheld). To the extent that the Seller is required to purchase or substitute for a Crossed Loan hereunder in the manner prescribed above while the Purchaser continues to hold any other Crossed Loans in such Crossed Group, neither the Seller nor the Purchaser shall enforce any remedies against the other's Primary Collateral, but each is permitted to exercise remedies against the Primary Collateral securing its respective Crossed Loans, including, with respect to the Purchaser, the Primary Collateral securing the Crossed Loans still held by the Purchaser, so long as such exercise does not materially impair the ability of the other party to exercise its remedies against its Primary Collateral. If the exercise of remedies by one party would materially impair the ability of the other party to exercise its remedies with respect to the Primary Collateral securing the Crossed Loans held by such party, then the Seller and the Purchaser shall forbear from exercising such remedies until the Mortgage Loan documents evidencing and securing the relevant Crossed Loans can be modified in a manner that complies with this Agreement to remove the threat of material impairment as a result of the exercise of remedies or some other accommodation can be reached. Any reserve or other cash collateral or letters of credit securing the Crossed Loans shall be allocated between such Crossed Loans in accordance with the Mortgage Loan documents, or otherwise on a pro rata basis based upon their outstanding Stated Principal Balances. Notwithstanding the foregoing, if a Crossed Loan included in the Trust Fund is modified to terminate the related cross-collateralization and/or cross-default provisions, as a condition to such master lease existsmodification, the Seller shall furnish to the Trustee an Opinion of Counsel that such modification shall not cause such master lease to be terminated at Closing without Purchaser paying any termination feean Adverse REMIC Event. The Rent Roll attached hereto as Exhibit B is true, correct and complete in all material respects as of the date set forth on the Rent Roll. As of the Closing, the Rent Roll delivered at the Closing will be true, correct and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default by any party and without any right of setoff, except as expressly provided Any expenses incurred by the terms of such Leases or as disclosed on the Rent Roll attached hereto. The copies of the Leases and other agreements with the tenants under the Leases (the “Tenants”) delivered to Purchaser pursuant to this Agreement constitute the entire agreements in connection with such Tenants relating modification or accommodation (including but not limited to recoverable attorney fees) shall be paid by the Real Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real PropertySeller.
(e) Exhibit J attached hereto is In connection with any permitted repurchase or substitution of one or more Mortgage Loans contemplated hereby, upon receipt of a true and complete schedule of all certificate from a Servicing Officer certifying as to the receipt of the Contracts (as hereinafter defined in Section 7Purchase Price or Substitution Shortfall Amount(s), trueas applicable, complete in the Certificate Account, and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy the delivery of the management agreement currently in effect with respect Mortgage File(s) and the Servicing File(s) for the related Qualified Substitute Mortgage Loan(s) to the Property. To Custodian and the Master Servicer, respectively, if applicable (i) the Trustee shall execute and deliver such endorsements and assignments as are provided to it by the Master Servicer, in each case without recourse, representation or warranty, as shall be necessary to vest in the Seller’s actual knowledge, the Contracts are in full force legal and effectbeneficial ownership of each repurchased Mortgage Loan or substituted Mortgage Loan, without material default by any party as applicable, (ii) the Trustee, the Custodian, the Master Servicer and without any claims made for the right Special Servicer shall each tender to the Seller, upon delivery to each of setoff, except as expressly provided them of a receipt executed by the terms Seller, all portions of the Mortgage File and other documents pertaining to such Mortgage Loan possessed by it, and (iii) the Master Servicer and the Special Servicer shall release to the Seller any Escrow Payments and Reserve Funds held by it in respect of such Contracts repurchased or as disclosed to Purchaser in writing at the time of such delivery. The Contracts constitute the entire agreements with such vendors relating to the Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excluding, however, the Leases and Permitted Encumbrances) affecting the Property which will survive the Closingdeleted Mortgage Loans.
(f) At Without limiting the Closingremedies of the Purchaser, there will be no outstanding contracts the Certificateholders or the Trustee on behalf of the Certificateholders pursuant to this Agreement, it is acknowledged that the representations and warranties are being made by Seller for risk allocation purposes. This Section 3 provides the construction sole remedy available to the Certificateholders, or repair the Trustee on behalf of the Certificateholders, respecting any Document Defect in a Mortgage File or any Breach of any improvements to the Improvements which have not been fully paid for, and Seller shall cause to be discharged all mechanics’ representation or materialmen’s liens arising from any labor or materials furnished to the Improvements prior to the Closing.
(g) Except as warranty set forth in Exhibit K attached hereto, there are no pending or, or required to Seller’s actual knowledge (without any duty of inquiry or investigation), threatened legal proceedings or actions of any kind or character affecting the Property or Seller’s interest therein, including, without limitation, condemnation proceedingsbe made pursuant to this Section 3.
(h) Seller has not received any actual written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or the Property relating in any way to a Release or compliance with Environmental Laws. For purposes of this Agreement, the phrase “Environmental Laws” shall mean any federal, state or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materials, or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 00
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Wachovia Commercial Mort Pass THR Certs Ser 2004-C10)
Representations, Warranties and Covenants of Seller. Seller hereby representsmakes the following representations, warrants warranties and covenants to Purchaser that the following matters are true and correct as of the execution of this Agreement and will also be true and correct as of the Closing, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx XxxxxxxxxPurchaser:
(a) Seller is a statutory trust corporation duly formed organized, validly existing, and validly existing in good standing under the laws of the State jurisdiction governing its creation and existence and is duly authorized and qualified to transact its business and is in good standing in each jurisdiction in which its business, properties or the business contemplated by this Agreement requires such authorization and qualification. Seller possesses all requisite authority, power, licenses, permits and franchises to conduct its business and to execute, deliver and comply with its obligations under the terms of Delawarethis Agreement and to sell Loans to Purchaser. The execution, delivery and performance of this Agreement have been duly authorized by all necessary corporate action.
(b) The execution and delivery of this Agreement by Seller in the manner contemplated herein and the ongoing performance and compliance with the terms hereof by Seller will not violate: (i) its certificate of incorporation and bylaws or other governing documents as applicable, or (ii) any laws that could have an adverse effect upon the validity, performance or enforceability of any of the terms of this Agreement applicable to the Seller, and will not violate or constitute a material default (or an event that, with notice or lapse of time or both, would constitute a material default) under, or result in the breach of, any contract, agreement or other instrument to which the Seller is a party.
(c) The execution and delivery of this Agreement by Seller in the manner contemplated herein and the ongoing performance and compliance with the terms hereof by it do not require the consent or approval of any governmental authority or, if such consent or approval is required, it has been obtained.
(d) This Agreement has been, and all the documents executed by Seller and instruments contemplated hereby which are to be delivered to Purchaser at the Closing will be, duly authorized, executed and delivered by Seller and will be legalseller constitute valid, valid legal and binding obligations of Seller Seller, enforceable against Seller in accordance with their respective terms (terms, except to as the extent that such enforcement hereof may be limited by applicable bankruptcyDebtor Relief Laws.
(e) No information, insolvencycertificate, moratorium statement, or written report delivered to Purchaser or its agents in connection with this Agreement, or any other report required hereunder, contains or shall contain any untrue statement of a material face or omit to state a material fact necessary to make the information, certificate, statement or report not misleading.
(f) The sale of each Loan shall be reflected on Seller's balance sheet and other principles relating financial statements as a sale of assets by Seller. Seller will not take any action or omit to take any action which would cause the transfer of the Loans to Purchaser to be treated as anything other than a sale to Purchaser of all of Seller's right, title and interest in and to each Loan.
(g) There is no litigation pending, or limiting to Seller's knowledge which, if determined adversely to Seller, would adversely affect the right sale of contracting parties generally)the Loans, will be sufficient the execution, delivery or enforceability of this Agreement, or which would have a material adverse effect on the financial condition of Seller.
(h) The transfer, assignment and conveyance of Loans by Seller pursuant to convey title (if they purport this Agreement are in the ordinary course of Sellers' business and are not subject to do so) the bulk transfer or any similar statutory provisions in effect in any applicable jurisdiction. Seller is not transferring the Loans with an actual intent to hinder, delay or defraud any of its creditors. Seller is solvent and will not violate any provisions be rendered insolvent by the sale of any material agreement to which Seller is a party or to which the Property or Seller is subject or bound. Subject to the satisfaction of Section 8(a)(i) below, no consent, waiver or approval by any third party is required in connection with the execution and delivery by Seller of this Agreement or the performance by Seller of the obligations to be performed by Seller under this AgreementLoans.
(b) Except as set forth on Exhibit M attached hereto, Seller has not received from any governmental authority written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any violation of any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable to the Property, or any part thereof, that will not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change to the zoning classification or any proceedings to widen or realign any streets or highways adjacent to the Property or of any condemnation proceedings.
(c) To Seller’s actual knowledge, (i) The sale, transfer, assignment and conveyance of the operating statements, income and expense reports and all other contracts or documents required to be delivered Loans by Seller to Purchaser pursuant to this Agreement are true, correct does not and complete copiesshall not violate any Law or the terms of any license held by Seller.
(j) Seller has not employed or otherwise engaged any broker or finder in connection with the negotiation or execution of this Agreement; and (ii) all contracts or documents required to be delivered to Purchaser pursuant nor has Seller conducted the negotiations with respect to this Agreement are in full force and effect, without material default by any party and without any right of set-off except as disclosed in writing at the time of such delivery.
(d) There is no master lease of the Property to any affiliate of Seller, or if such master lease exists, Seller shall cause such master lease to be terminated at Closing without Purchaser paying any termination fee. The Rent Roll attached hereto as Exhibit B is true, correct and complete in all material respects as of the date set forth on the Rent Roll. As of the Closing, the Rent Roll delivered at the Closing will be true, correct and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default by any party and without any right of setoff, except as expressly provided by the terms of such Leases or as disclosed on the Rent Roll attached hereto. The copies of the Leases and other agreements with the tenants under the Leases (the “Tenants”) delivered to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating to the Real Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real Property.
(e) Exhibit J attached hereto is a true and complete schedule of all of the Contracts (as hereinafter defined in Section 7), true, complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy of the management agreement currently in effect nor with respect to the Property. To Seller’s actual knowledge, the Contracts are transactions contemplated by this Agreement in full force and effect, without material default by any party and without such manner as to give rise to any claims made against Purchaser for the right of setoffany brokerage commission, except as expressly provided by the terms of such Contracts finder's fee or as disclosed to Purchaser in writing at the time of such delivery. The Contracts constitute the entire agreements with such vendors relating to the Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excluding, however, the Leases and Permitted Encumbrances) affecting the Property which will survive the Closingsimilar payment.
(f) At the Closing, there will be no outstanding contracts made by Seller for the construction or repair of any improvements to the Improvements which have not been fully paid for, and Seller shall cause to be discharged all mechanics’ or materialmen’s liens arising from any labor or materials furnished to the Improvements prior to the Closing.
(g) Except as set forth in Exhibit K attached hereto, there are no pending or, to Seller’s actual knowledge (without any duty of inquiry or investigation), threatened legal proceedings or actions of any kind or character affecting the Property or Seller’s interest therein, including, without limitation, condemnation proceedings.
(h) Seller has not received any actual written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or the Property relating in any way to a Release or compliance with Environmental Laws. For purposes of this Agreement, the phrase “Environmental Laws” shall mean any federal, state or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materials, or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 00
Appears in 1 contract
Samples: Sale and Purchase Agreement (Westmark Group Holdings Inc)
Representations, Warranties and Covenants of Seller. (a) The Seller hereby represents, represents and warrants to and covenants to Purchaser that with the following matters are true and correct Purchaser, as of the execution of this Agreement and will also be true and correct as of the Closingdate hereof, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx Xxxxxxxxxthat:
(ai) The Seller is a statutory trust New York banking corporation duly formed and organized, validly existing and in good standing under the laws of the State of Delaware. New York and the Seller has taken all necessary corporate action to authorize the execution, delivery and performance of this Agreement by it, and has the power and authority to execute, deliver and perform this Agreement and all transactions contemplated hereby.
(ii) This Agreement has been, been duly and all the documents executed by Seller which are to be delivered to Purchaser at the Closing will be, duly validly authorized, executed and delivered by Seller the Seller, all requisite action by the Seller's directors and will be legalofficers has been taken in connection therewith, valid and (assuming the due authorization, execution and delivery hereof by the Purchaser) this Agreement constitutes the valid, legal and binding obligations agreement of Seller the Seller, enforceable against the Seller in accordance with their respective terms (its terms, except to the extent that as such enforcement may be limited by applicable (A) laws relating to bankruptcy, insolvency, moratorium and fraudulent transfer, reorganization, receivership or moratorium, (B) other principles laws relating to or limiting affecting the right rights of contracting parties creditors generally, as they may be applied in the context of the insolvency of a New York banking corporation or (C) general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law), will be sufficient to convey title .
(if they purport to do soiii) The execution and delivery of this Agreement by the Seller and the Seller's performance and compliance with the terms of this Agreement will not (A) violate the Seller's organization certificate or bylaws, (B) violate any provisions law or regulation or any administrative decree or order to which it is subject or (C) constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material contract, agreement or other instrument to which the Seller is a party or to by which the Property or Seller is bound, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or might have consequences that would materially and adversely affect its performance hereunder.
(iv) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or other governmental agency or body, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or might have consequences that would materially and adversely affect its performance hereunder.
(v) The Seller is not a party to or bound by any agreement or instrument or subject to any organization certificate, bylaws or bound. Subject any other corporate restriction or any judgment, order, writ, injunction, decree, law or regulation that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the ability of the Seller to perform its obligations under this Agreement or that requires the consent of any third person to the satisfaction of Section 8(a)(i) below, no consent, waiver or approval by any third party is required in connection with the execution and delivery by Seller of this Agreement or the performance by the Seller of its obligations under this Agreement (except to the extent such consent has been obtained).
(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 or the consummation of the transactions contemplated by this Agreement except as have previously been obtained, and no bulk sale law applies to such transactions.
(vii) None of the sale of the Mortgage Loans by the Seller, the transfer of the Mortgage Loans to the Trustee, and the execution, delivery or performance of this Agreement by the Seller, results or will result in the creation or imposition of any lien on any of the Seller's assets or property that would have a material adverse effect upon the Seller's ability to perform its duties and obligations under this Agreement or materially impair the ability of the Purchaser to be performed realize on the Mortgage Loans.
(viii) There is no action, suit, proceeding or investigation pending or to the knowledge of the Seller, threatened against the Seller in any court or by or before any other governmental agency or instrumentality which would, in the Seller's good faith and reasonable judgment, prohibit its entering into this Agreement or materially and adversely affect the validity of this Agreement or the performance by the Seller of its obligations under this Agreement.
(ix) Under generally accepted accounting principles ("GAAP") and for federal income tax purposes, the Seller will report the transfer of the Mortgage Loans to the Purchaser as a sale of the Mortgage Loans to the Purchaser in exchange for consideration consisting of a cash amount equal to the Purchase Consideration. The consideration received by the Seller upon the sale of the Mortgage Loans to the Purchaser will constitute at least reasonably equivalent value and fair consideration for the Mortgage Loans. The Seller will be solvent at all relevant times prior to, and will not be rendered insolvent by, the sale of the Mortgage Loans to the Purchaser. The Seller is not selling the Mortgage Loans to the Purchaser with any intent to hinder, delay or defraud any of the creditors of the Seller.
(x) Each Mortgage Loan was either:
(a) 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 (any of the foregoing, including the Seller, a "Qualified Originator"); or
(b) Except originated by a person that is not a Qualified Originator (a "Non-Qualified Originator"), in which case,
(i) such Mortgage Loan was underwritten in accordance with standards established by the Qualified Originator (which standards are the same as the Seller's in all material respects), using application forms and related credit documents approved by the Qualified Originator;
(ii) the Qualified Originator approved each application and related credit documents before a commitment by the Non-Qualified Originator was issued, and no such commitment was issued until the Qualified Originator agreed to fund such Mortgage Loan;
(iii) the Mortgage Loan was originated by the Non-Qualified Originator pursuant to an ongoing, standing relationship with the Qualified Originator; and
(iv) the closing documents for the Mortgage Loan were prepared on forms approved by the Qualified Originator, and, pursuant to the Non-Qualified Originator's ongoing, standing relationship with the Qualified Originator, then
(A) such closing documents reflect the Qualified Originator as the original mortgagee, and such Mortgage Loan was actually funded by the Qualified Originator at the closing thereof;
(B) such closing documents reflect the Non-Qualified Originator as the original mortgagee, but include assignment documents executed by the Non- Qualified Originator in favor of the Qualified Originator at the time of the closing of the Mortgage Loan, reflecting the Qualified Originator as the successor and assign to the Non-Qualified Originator, and the Mortgage Loan was funded initially by the Non-Qualified Originator at the closing thereof and then acquired by the Qualified Originator from such Non-Qualified Originator; or
(C) (z) such closing documents reflect the Non-Qualified Originator as the original mortgagee, but include assignment documents executed by the Non- Qualified Originator in favor of the Qualified Originator at the time of the closing of the Mortgage Loan, reflecting the Qualified Originator as the successor and assign to the Non-Qualified Originator, and the Mortgage Loan was funded initially by the Qualified Originator at the closing thereof and then acquired by the Qualified Originator from such Non-Qualified Originator. Each Mortgaged Property consists of one or more separate tax parcels of real property upon which is located one or more commercial structures and otherwise meets the requirements for eligibility under the Secondary Mortgage Market Enhancement Act of 1984 for commercial property.
(b) The Seller hereby makes the representations and warranties contained in Schedule I hereto for the benefit of the Purchaser and the Trustee for the benefit of the Certificateholders as of the Closing Date (unless a different date is specified therein), with respect to (and solely with respect to) each Mortgage Loan, subject, however, to the exceptions set forth on Exhibit M attached hereto, Seller has not received from any governmental authority written notice, and Seller has no actual knowledge (without any duty Annex A to Schedule I of inquiry or investigation) of any violation of any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable to the Property, or any part thereof, that will not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change to the zoning classification or any proceedings to widen or realign any streets or highways adjacent to the Property or of any condemnation proceedingsthis Agreement.
(c) To Seller’s actual knowledgeIf the Seller discovers or receives written notice of a Document Defect or a Breach relating to a Mortgage Loan pursuant to Section 2.03(a) of the Pooling and Servicing Agreement, then the Seller shall, not later than 90 days from such discovery or receipt of such notice (or, in the case of a Document Defect or Breach relating to a Mortgage Loan not being a "qualified mortgage" within the meaning of the REMIC Provisions (a "Qualified Mortgage"), not later than 90 days from any party to the Pooling and Servicing Agreement discovering such Document Defect or Breach, provided the Seller receives such notice in a timely manner), if such Document Defect or Breach shall materially and adversely affect the value of the related Mortgage Loan or the interest of the Certificateholders therein, cure such Document Defect or Breach, as the case may be, in all material respects, which shall include payment of losses and any Additional Trust Fund Expenses associated therewith or, if such Document Defect or Breach (other than omissions due solely to a document not having been returned by the related recording office) cannot be cured within such 90-day period, (i) repurchase the operating statementsaffected Mortgage Loan (which, income for the purposes of this clause (i), shall include an REO Loan) at the applicable Purchase Price (as defined in the Pooling and expense reports and all other contracts Servicing Agreement) not later than the end of such 90-day period or documents required to be delivered to Purchaser pursuant to this Agreement are true, correct and complete copies; and (ii) all contracts or documents required except in the case of the Mortgage Loan identified on the Mortgage Loan Schedule as being secured by Deerbrook Apartments (which Mortgage Loan may not be substituted) substitute a Qualified Substitute Mortgage Loan for such affected Mortgage Loan (which, for purposes of this clause (ii), shall include an REO Loan) not later than the end of such 90-day period (and in no event later than the second anniversary of the Closing Date) and pay the Master Servicer for deposit into the Collection Account, any Substitution Shortfall Amount in connection therewith; provided, however, that, unless the breach would cause the Mortgage Loan not to be a Qualified Mortgage, if such Document Defect or Breach is capable of being cured but not within such 90-day period and the Seller has commenced and is diligently proceeding with the cure of such Document Defect or Breach within such 90-day period, the Seller shall have an additional 90 days to complete such cure (or, failing such cure, to repurchase or substitute the related Mortgage Loan (which, for the purpose of such repurchase or substitution, shall include an REO Loan)); and provided, further, that with respect to such additional 90-day period, the Seller shall have delivered an officer's certificate to Purchaser pursuant the Trustee setting forth the reason such Document Defect or Breach is not capable of being cured within the initial 90-day period and what actions the Seller is pursuing in connection with the cure thereof and stating that the Seller anticipates that such Document Defect or Breach will be cured within the additional 90-day period; and provided, further, that no Document Defect (other than with respect to this Agreement are the Specially Designated Mortgage Loan Documents) shall be considered to materially and adversely affect the interests of the Certificateholders or the value of the related Mortgage Loan unless the document with respect to which the Document Defect exists is required in full force and effectconnection with an imminent enforcement of the mortgagee's rights or remedies under the related Mortgage Loan, without material default defending any claim asserted by any borrower or third party and without with respect to the Mortgage Loan, establishing the validity or priority of any right lien or any collateral securing the Mortgage Loan or for any immediate servicing obligations.
(1) the weighted average debt service coverage ratio for all the remaining Crossed Loans for the four calendar quarters immediately preceding such repurchase or substitution is not less than the weighted average debt service coverage ratio for all such Crossed Loans, including the affected Crossed Loan, as of setthe Cut-off except as disclosed in writing Date, and (2) the weighted average loan to-value ratio for the remaining Crossed Loans determined at the time of such delivery.
(d) There is no master lease repurchase or substitution based upon an appraisal obtained by the Special Servicer at the expense of the Property to any affiliate of Seller, or if such master lease exists, related Seller shall cause not be greater than the weighted average loan-to-value ratio for all such master lease to be terminated at Closing without Purchaser paying any termination fee. The Rent Roll attached hereto as Exhibit B is trueCrossed Loans, correct and complete in all material respects including the affected Crossed Loan as of the date set forth on Cut-off Date; provided, that if such debt service coverage and loan-to-value criteria are satisfied and any Crossed Loan (that is not the Rent Roll. As Crossed Loan directly affected by the subject Breach or Document Defect) is not so materially and adversely affected and therefore is not so repurchased or substituted, then such Crossed Loan shall be released from its cross-collateralization and cross-default provision so long as such Crossed Loan (that is not the Crossed Loan directly affected by the subject Breach or Document Defect) is held in the Trust Fund; and provided, further, that the repurchase of less than all such Crossed Loans and the release of any Crossed Loan from a cross-collateralization and cross-default provision shall be subject to the delivery by the Seller to the Trustee, at the expense of the ClosingSeller, of an Opinion of Counsel to the effect that such release would not cause either of REMIC I or REMIC II to fail to qualify as a REMIC under the Code or result in the imposition of any tax on "prohibited transactions" or "contributions" after the Startup Day under the REMIC Provisions; and provided, further, that the Controlling Class Representative (if one is then acting) shall have consented to the repurchase or substitution of the affected Crossed Loan, which consent shall not be unreasonably withheld. For a period of two years from the Closing Date, so long as there remains any Mortgage File relating to a Mortgage Loan as to which there is any uncured Document Defect or Breach known to the Seller, the Rent Roll delivered at Seller shall provide, once every ninety days, the Closing will be true, correct and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default by any party and without any right of setoff, except as expressly provided by the terms of such Leases or as disclosed on the Rent Roll attached hereto. The copies of the Leases and other agreements with the tenants under the Leases (the “Tenants”) delivered to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating officer's certificate to the Real Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real Property.
(e) Exhibit J attached hereto is a true and complete schedule of all of the Contracts (Trustee described above as hereinafter defined in Section 7), true, complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy of the management agreement currently in effect with respect to the Property. To Seller’s actual knowledge, the Contracts are in full force reasons such Document Defect or Breach remains uncured and effect, without material default by any party and without any claims made for the right of setoff, except as expressly provided by the terms of such Contracts or as disclosed to Purchaser in writing at the time of such delivery. The Contracts constitute the entire agreements with such vendors relating to the Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements as have been delivered actions being taken to Purchaser, and there are no other agreements with any third parties (excludingpursue cure; provided, however, that, without limiting the Leases effect of the foregoing provisions of this Section 3(c), if such Document Defect or Breach shall materially and Permitted Encumbrances) affecting adversely affect the Property which will survive value of such Mortgage Loan or the Closing.
interests of the holders of the Certificates therein (f) At the Closing, there will be no outstanding contracts made by Seller for the construction or repair of any improvements subject to the Improvements which have not been fully paid forlast proviso in the second preceding sentence), and the Seller shall cause to be discharged in all mechanics’ cases on or materialmen’s liens arising from any labor or materials furnished to the Improvements prior to the Closingsecond anniversary of the Closing Date either cause such Document Defect or Breach to be cured or repurchase or substitute for the affected Mortgage Loan.
(g) Except as set forth in Exhibit K attached hereto, there are no pending or, to Seller’s actual knowledge (without any duty of inquiry or investigation), threatened legal proceedings or actions of any kind or character affecting the Property or Seller’s interest therein, including, without limitation, condemnation proceedings.
(h) Seller has not received any actual written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or the Property relating in any way to a Release or compliance with Environmental Laws. For purposes of this Agreement, the phrase “Environmental Laws” shall mean any federal, state or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materials, or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 00
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Merrill Lynch Mortgage Trust 2004-Key2)
Representations, Warranties and Covenants of Seller. (a) The Seller hereby represents, represents and warrants to and covenants to Purchaser that with the following matters are true and correct Purchaser, as of the execution date hereof, that:
(i) The Seller is licensed and authorized to transact business in the State of New York as a branch of a foreign bank under Article V of the Banking Law of the United States, and the Seller has taken all necessary corporate action to authorize the execution, delivery and performance of this Agreement and will also be true and correct as of the Closingby it, and has the power and authority to execute, deliver and perform this Agreement and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx Xxxxxxxxx:transactions contemplated hereby.
(aii) Seller is a statutory trust duly formed and validly existing under the laws of the State of Delaware. This Agreement has been, been duly and all the documents executed by Seller which are to be delivered to Purchaser at the Closing will be, duly validly authorized, executed and delivered by Seller the Seller, all requisite action by the Seller's directors and will be legalofficers has been taken in connection therewith, valid and (assuming the due authorization, execution and delivery hereof by the Purchaser) this Agreement constitutes the valid, legal and binding obligations agreement of Seller the Seller, enforceable against the Seller in accordance with their respective terms (its terms, except to the extent that as such enforcement may be limited by applicable (A) laws relating to bankruptcy, insolvency, moratorium and fraudulent transfer, reorganization, receivership, conservatorship or moratorium, (B) other principles laws relating to or limiting affecting the right rights of contracting parties creditors generally, or (C) general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law), will be sufficient to convey title .
(if they purport to do soiii) The execution and delivery of this Agreement by the Seller and the Seller's performance and compliance with the terms of this Agreement will not (A) violate the Seller's articles of association or memorandum of association, (B) violate any provisions law or regulation or any administrative decree or order to which it is subject or (C) constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material contract, agreement or other instrument to which the Seller is a party or to by which the Property or Seller is bound, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or materially and adversely affect its performance hereunder.
(iv) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or other governmental agency or body, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or materially and adversely affect its performance hereunder.
(v) The Seller is not a party to or bound by any agreement or instrument or subject to any articles of association or bound. Subject any other corporate restriction or any judgment, order, writ, injunction, decree, law or regulation that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the ability of the Seller to perform its obligations under this Agreement or that requires the consent of any third person to the satisfaction of Section 8(a)(i) below, no consent, waiver or approval by any third party is required in connection with the execution and delivery by Seller of this Agreement or the performance by the Seller of its obligations under this Agreement (except to the extent such consent has been obtained).
(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 or the consummation of the transactions contemplated by this Agreement except as have previously been obtained, and no bulk sale law applies to such transactions.
(vii) None of the sale of the Mortgage Loans by the Seller, the transfer of the Mortgage Loans to the Trustee, and the execution, delivery or performance of this Agreement by the Seller, results or will result in the creation or imposition of any lien on any of the Seller's assets or property that would have a material adverse effect upon the Seller's ability to perform its duties and obligations under this Agreement or materially impair the ability of the Purchaser to be performed realize on the Mortgage Loans.
(viii) There is no action, suit, proceeding or investigation pending or to the knowledge of the Seller, threatened against the Seller in any court or by or before any other governmental agency or instrumentality which would, in the Seller's good faith and reasonable judgment, prohibit its entering into this Agreement or materially and adversely affect the validity of this Agreement or the performance by the Seller of its obligations under this Agreement.
(bix) Except Under generally accepted accounting principles ("GAAP") and for federal income tax purposes, the Seller will report the transfer of the Mortgage Loans to the Purchaser as set forth on Exhibit M attached hereto, a sale of the Mortgage Loans to the Purchaser in exchange for consideration consisting of a cash amount equal to the Purchase Consideration. The consideration received by the Seller has not received from any governmental authority written noticeupon the sale of the Mortgage Loans to the Purchaser will constitute at least reasonably equivalent value and fair consideration for the Mortgage Loans. The Seller will be solvent at all relevant times prior to, and Seller has no actual knowledge (without any duty will not be rendered insolvent by, the sale of inquiry or investigation) of any violation of any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable the Mortgage Loans to the Property, or any part thereof, that will Purchaser. The Seller is not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change selling the Mortgage Loans to the zoning classification Purchaser with any intent to hinder, delay or defraud any proceedings to widen or realign any streets or highways adjacent to of the Property or creditors of any condemnation proceedingsthe Seller.
(cx) To Seller’s actual knowledge, (i) The Prospectus Supplement contains all the operating statements, income and expense reports and all other contracts or documents information that is required to be delivered to Purchaser provided in respect of the Seller (that arise from its role as "sponsor" (within the meaning of Regulation AB)), the Mortgage Loans, the related Mortgagors and the related Mortgaged Properties pursuant to this Agreement are true, correct and complete copies; and (ii) all contracts or documents required to be delivered to Purchaser pursuant to this Agreement are in full force and effect, without material default by any party and without any right of set-off except as disclosed in writing at the time of such delivery.
(d) There is no master lease of the Property to any affiliate of Seller, or if such master lease exists, Seller shall cause such master lease to be terminated at Closing without Purchaser paying any termination fee. The Rent Roll attached hereto as Exhibit B is true, correct and complete in all material respects as of the date set forth on the Rent Roll. As of the Closing, the Rent Roll delivered at the Closing will be true, correct and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default by any party and without any right of setoff, except as expressly provided by the terms of such Leases or as disclosed on the Rent Roll attached hereto. The copies of the Leases and other agreements with the tenants under the Leases (the “Tenants”) delivered to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating to the Real Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real Property.
(e) Exhibit J attached hereto is a true and complete schedule of all of the Contracts (as hereinafter defined in Section 7), true, complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy of the management agreement currently in effect with respect to the Property. To Seller’s actual knowledge, the Contracts are in full force and effect, without material default by any party and without any claims made for the right of setoff, except as expressly provided by the terms of such Contracts or as disclosed to Purchaser in writing at the time of such delivery. The Contracts constitute the entire agreements with such vendors relating to the Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excluding, however, the Leases and Permitted Encumbrances) affecting the Property which will survive the Closing.
(f) At the Closing, there will be no outstanding contracts made by Seller for the construction or repair of any improvements to the Improvements which have not been fully paid for, and Seller shall cause to be discharged all mechanics’ or materialmen’s liens arising from any labor or materials furnished to the Improvements prior to the Closing.
(g) Except as set forth in Exhibit K attached hereto, there are no pending or, to Seller’s actual knowledge (without any duty of inquiry or investigation), threatened legal proceedings or actions of any kind or character affecting the Property or Seller’s interest therein, including, without limitation, condemnation proceedings.
(h) Seller has not received any actual written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or the Property relating in any way to a Release or compliance with Environmental LawsRegulation AB. For purposes purpose of this Agreement, the phrase “Environmental Laws” "Regulation AB" shall mean any federalSubpart 229.1100 - Asset Backed Securities (Regulation AB), state 17 C.F.R. Sections 229.1100-229.1123, as such may be amended from time to time, and subject to such clarification and interpretation as have been provided by the Commission in the adopting release (Asset-Backed Securities, Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506-1,631 (Jan. 7, 2005)) or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materialsby the staff of the Commission, or as may be provided by the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 00Commission or its staff from time to time.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (ML-CFC Commercial Mortgage Trust 2007-9)
Representations, Warranties and Covenants of Seller. (a) The Seller hereby represents, represents and warrants to and covenants to Purchaser that with the following matters are true and correct Purchaser, as of the execution of this Agreement and will also be true and correct as of the Closingdate hereof, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx Xxxxxxxxxthat:
(ai) The Seller is a statutory trust duly formed and organized or formed, as the case may be, validly existing and in good standing as a legal entity under the laws of the State United States and possesses all requisite authority, power, licenses, permits and franchises to carry on its business as currently conducted by it and to execute, deliver and comply with its obligations under the terms of Delaware. this Agreement.
(ii) This Agreement has been, been duly and all the documents executed by Seller which are to be delivered to Purchaser at the Closing will be, duly validly authorized, executed and delivered by the Seller and, assuming due authorization, execution and will be delivery hereof by the Purchaser, constitutes a legal, valid and binding obligations obligation of Seller the Seller, enforceable against the Seller in accordance with their respective terms (its terms, except to the extent that as such enforcement may be limited by applicable (A) bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws affecting the enforcement of creditors' rights in general, and other (B) general equity principles relating to (regardless of whether such enforcement is considered in a proceeding in equity or limiting at law).
(iii) The execution and delivery of this Agreement by the right Seller and the Seller's performance and compliance with the terms of contracting parties generally), will be sufficient to convey title (if they purport to do so) and this Agreement will not (A) violate the Seller's organizational documents, (B) violate any provisions law or regulation or any administrative decree or order to which the Seller is subject or (C) constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material contract, agreement or other instrument to which the Seller is a party or to by which the Property or Seller is subject bound.
(iv) The Seller is not in default with respect to any order or bound. Subject decree of any court or any order, regulation or demand of any federal, state, municipal or other governmental agency or body, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or have consequences that would materially and adversely affect its performance hereunder.
(v) The Seller is not a party to the satisfaction of Section 8(a)(i) below, no consent, waiver or approval bound by any agreement or instrument or subject to any organizational document or any other corporate or limited liability company (as applicable) restriction or any judgment, order, writ, injunction, decree, law or regulation that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the ability of the Seller to perform its obligations under this Agreement or that requires the consent of any third party is required in connection with person to the execution and delivery by Seller of this Agreement by the Seller or the performance by the Seller of the its obligations to be performed by Seller under this Agreement.
(vi) Except for the recordation and/or filing of assignments and other transfer documents with respect to the Mortgage Loans, as contemplated by Section 2(d) hereof, no consent, approval, authorization or order of, registration or filing with, or notice to, 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; and no bulk sale law applies to such transactions.
(vii) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller that would, in the Seller's good faith and reasonable judgment, prohibit its entering into this Agreement or materially and adversely affect the performance by the Seller of its obligations under this Agreement.
(viii) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Seller are pending or contemplated. In addition, the Seller hereby further represents and warrants to, and covenants with, the Purchaser, as of the date hereof, that:
(i) Under generally accepted accounting principles ("GAAP") and for federal income tax purposes, the Seller will report the transfer of the Mortgage Loans to the Purchaser, as provided herein, as a sale of the Mortgage Loans to the Purchaser in exchange for the consideration specified in Section 1 hereof. In connection with the foregoing, the Seller shall cause all of its records to reflect such transfer as a sale (as opposed to a secured loan). The consideration received by the Seller upon the sale of the Mortgage Loans to the Purchaser will constitute at least reasonably equivalent value and fair consideration for the Mortgage Loans. The Seller will be solvent at all relevant times prior to, and will not be rendered insolvent by, the sale of the Mortgage Loans to the Purchaser. The Seller is not selling the Mortgage Loans to the Purchaser with any intent to hinder, delay or defraud any of the creditors of the Seller. After giving effect to its transfer of the Mortgage Loans to the Purchaser, as provided herein, the value of the Seller's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Seller's debts and obligations, including contingent and unliquidated debts and obligations of the Seller, and the Seller will not be left with unreasonably small assets or capital with which to engage in and conduct its business. The Mortgage Loans do not constitute all or substantially all of the assets of the Seller. The Seller does not intend to, and does not believe that it will, incur debts or obligations beyond its ability to pay such debts and obligations as they mature.
(b) Except The Seller hereby makes, for the benefit of the Purchaser, with respect to the Mortgage Loan, as of the Closing Date or as of such other date expressly set forth therein, each of the representations and warranties set forth on Exhibit M attached B hereto, Seller has not received from any governmental authority written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any violation of any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable to the Property, or any part thereof, that will not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change to the zoning classification or any proceedings to widen or realign any streets or highways adjacent to the Property or of any condemnation proceedings.
(c) To Seller’s actual knowledge, (i) the operating statements, income and expense reports and all other contracts or documents required to be delivered to Purchaser pursuant to this Agreement are true, correct and complete copies; and (ii) all contracts or documents required to be delivered to Purchaser pursuant to this Agreement are in full force and effect, without material default by any party and without any right of set-off except as disclosed in writing at the time of such delivery.
(d) There is no master lease of the Property to any affiliate of Seller, or if such master lease exists, Seller shall cause such master lease to be terminated at Closing without Purchaser paying any termination fee. The Rent Roll attached hereto as Exhibit B is true, correct and complete in all material respects as of the date set forth on the Rent Roll. As of the Closing, the Rent Roll delivered at the Closing will be true, correct and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default by any party and without any right of setoff, except as expressly provided by the terms of such Leases or as disclosed on the Rent Roll attached hereto. The copies of the Leases and other agreements with the tenants under the Leases (the “Tenants”) delivered to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating to the Real Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real Property.
(e) Exhibit J attached hereto is a true and complete schedule of all of the Contracts (as hereinafter defined in Section 7), true, complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy of the management agreement currently in effect with respect to the Property. To Seller’s actual knowledge, the Contracts are in full force and effect, without material default by any party and without any claims made for the right of setoff, except as expressly provided by the terms of such Contracts or as disclosed to Purchaser in writing at the time of such delivery. The Contracts constitute the entire agreements with such vendors relating to the Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excluding, however, the Leases and Permitted Encumbrances) affecting the Property which will survive the Closing.
(f) At the Closing, there will be no outstanding contracts made by Seller for the construction or repair of any improvements to the Improvements which have not been fully paid for, and Seller shall cause to be discharged all mechanics’ or materialmen’s liens arising from any labor or materials furnished to the Improvements prior to the Closing.
(g) Except as set forth in Exhibit K attached hereto, there are no pending or, to Seller’s actual knowledge (without any duty of inquiry or investigation), threatened legal proceedings or actions of any kind or character affecting the Property or Seller’s interest therein, including, without limitation, condemnation proceedings.
(h) Seller has not received any actual written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or the Property relating in any way to a Release or compliance with Environmental Laws. For purposes of this Agreement, the phrase “Environmental Laws” shall mean any federal, state or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materials, or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 00
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (LB-UBS Commercial Mortgage Trust 2007-C1)
Representations, Warranties and Covenants of Seller. (a) The Seller hereby represents, represents and warrants to and covenants to Purchaser that with the following matters are true and correct Purchaser, as of the execution of this Agreement and will also be true and correct as of the Closingdate hereof, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx Xxxxxxxxxthat:
(ai) The Seller is a statutory trust corporation duly formed and organized, validly existing and in good standing under the laws of the State of Delaware. New York and the Seller has taken all necessary corporate action to authorize the execution, delivery and performance of this Agreement by it, and has the power and authority to execute, deliver and perform this Agreement and all transactions contemplated hereby.
(ii) This Agreement has been, been duly and all the documents executed by Seller which are to be delivered to Purchaser at the Closing will be, duly validly authorized, executed and delivered by Seller the Seller, all requisite action by the Seller's directors and will be legalofficers has been taken in connection therewith, valid and (assuming the due authorization, execution and delivery hereof by the Purchaser) this Agreement constitutes the valid, legal and binding obligations agreement of Seller the Seller, enforceable against the Seller in accordance with their respective terms (its terms, except to the extent that as such enforcement may be limited by applicable (A) laws relating to bankruptcy, insolvency, moratorium and fraudulent transfer, reorganization, receivership or moratorium, (B) other principles laws relating to or limiting affecting the right rights of contracting parties creditors generally, or (C) general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law), will be sufficient to convey title .
(if they purport to do soiii) The execution and delivery of this Agreement by the Seller and the Seller's performance and compliance with the terms of this Agreement will not (A) violate the Seller's certificate of incorporation or bylaws, (B) violate any provisions law or regulation or any administrative decree or order to which it is subject or (C) constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material contract, agreement or other instrument to which the Seller is a party or to by which the Property or Seller is bound, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or materially and adversely affect its performance hereunder.
(iv) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or other governmental agency or body, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or materially and adversely affect its performance hereunder.
(v) The Seller is not a party to or bound by any agreement or instrument or subject to any certificate of incorporation, bylaws or bound. Subject any other corporate restriction or any judgment, order, writ, injunction, decree, law or regulation that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the ability of the Seller to perform its obligations under this Agreement or that requires the consent of any third person to the satisfaction of Section 8(a)(i) below, no consent, waiver or approval by any third party is required in connection with the execution and delivery by Seller of this Agreement or the performance by the Seller of its obligations under this Agreement (except to the extent such consent has been obtained).
(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 or the consummation of the transactions contemplated by this Agreement except as have previously been obtained, and no bulk sale law applies to such transactions.
(vii) None of the sale of the Mortgage Loans by the Seller, the transfer of the Mortgage Loans to the Trustee, and the execution, delivery or performance of this Agreement by the Seller, results or will result in the creation or imposition of any lien on any of the Seller's assets or property that would have a material adverse effect upon the Seller's ability to perform its duties and obligations under this Agreement or materially impair the ability of the Purchaser to be performed realize on the Mortgage Loans.
(viii) There is no action, suit, proceeding or investigation pending or to the knowledge of the Seller, threatened against the Seller in any court or by or before any other governmental agency or instrumentality which would, in the Seller's good faith and reasonable judgment, prohibit its entering into this Agreement or materially and adversely affect the validity of this Agreement or the performance by the Seller of its obligations under this Agreement.
(ix) Under generally accepted accounting principles ("GAAP") and for federal income tax purposes, the Seller will report the transfer of the Mortgage Loans to the Purchaser as a sale of the Mortgage Loans to the Purchaser in exchange for consideration consisting of a cash amount equal to the Purchase Consideration. The consideration received by the Seller upon the sale of the Mortgage Loans to the Purchaser will constitute at least reasonably equivalent value and fair consideration for the Mortgage Loans. The Seller will be solvent at all relevant times prior to, and will not be rendered insolvent by, the sale of the Mortgage Loans to the Purchaser. The Seller is not selling the Mortgage Loans to the Purchaser with any intent to hinder, delay or defraud any of the creditors of the Seller.
(x) Each Mortgage Loan was either:
1. 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 (any of the foregoing, including the Seller, a "Qualified Originator"); or
2. originated by a person that is not a Qualified Originator (a "Non-Qualified Originator"), in which case,
(A) such Mortgage Loan was underwritten in accordance with standards established by the Qualified Originator (which standards are the same as the Seller's in all material respects), using application forms and related credit documents approved by the Qualified Originator;
(B) the Qualified Originator approved each application and related credit documents before a commitment by the Non-Qualified Originator was issued, and no such commitment was issued until the Qualified Originator agreed to fund such Mortgage Loan;
(C) the Mortgage Loan was originated by the Non-Qualified Originator pursuant to an ongoing, standing relationship with the Qualified Originator; and
(D) the closing documents for the Mortgage Loan were prepared on forms approved by the Qualified Originator, and, pursuant to the Non-Qualified Originator's ongoing, standing relationship with the Qualified Originator, then
(I) such closing documents reflect the Qualified Originator as the original mortgagee, and such Mortgage Loan was actually funded by the Qualified Originator at the closing thereof;
(II) such closing documents reflect the Non-Qualified Originator as the original mortgagee, but include assignment documents executed by the Non- Qualified Originator in favor of the Qualified Originator at the time of the closing of the Mortgage Loan, reflecting the Qualified Originator as the successor and assign to the Non-Qualified Originator, and the Mortgage Loan was funded initially by the Non-Qualified Originator at the closing thereof and then acquired by the Qualified Originator from such Non-Qualified Originator; or
(III) such closing documents reflect the Non-Qualified Originator as the original mortgagee, but include assignment documents executed by the Non- Qualified Originator in favor of the Qualified Originator at the time of the closing of the Mortgage Loan, reflecting the Qualified Originator as the successor and assign to the Non-Qualified Originator, and the Mortgage Loan was funded initially by the Qualified Originator at the closing thereof and then acquired by the Qualified Originator from such Non-Qualified Originator. Each Mortgaged Property consists of one or more separate tax parcels of real property upon which is located one or more commercial structures and otherwise meets the requirements for eligibility under the Secondary Mortgage Market Enhancement Act of 1984 for commercial property.
(b) Except The Seller hereby makes the representations and warranties contained in Schedule I hereto for the benefit of the Purchaser and the Trustee for the benefit of the Certificateholders as of the Closing Date (unless a different date is specified therein), with respect to (and solely with respect to) each Mortgage Loan, subject, however, to the exceptions set forth on Exhibit M attached hereto, Seller has not received from any governmental authority written notice, and Seller has no actual knowledge (without any duty Annex A to Schedule I of inquiry or investigation) of any violation of any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable to the Property, or any part thereof, that will not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change to the zoning classification or any proceedings to widen or realign any streets or highways adjacent to the Property or of any condemnation proceedingsthis Agreement.
(c) To Seller’s actual knowledgeIf the Seller discovers or receives written notice of a Document Defect or a Breach relating to a Mortgage Loan pursuant to Section 2.03(a) of the Pooling and Servicing Agreement, then the Seller shall, not later than 90 days from such discovery or receipt of such notice (or, in the case of a Document Defect or Breach relating to a Mortgage Loan not being a "qualified mortgage" within the meaning of the REMIC Provisions (a "Qualified Mortgage"), not later than 90 days from any party to the Pooling and Servicing Agreement discovering such Document Defect or Breach, provided the Seller receives such notice in a timely manner), if such Document Defect or Breach shall materially and adversely affect the value of the related Mortgage Loan or the interest of the Certificateholders therein, cure such Document Defect or Breach, as the case may be, in all material respects, which shall include payment of losses and any Additional Trust Fund Expenses associated therewith or, if such Document Defect or Breach (other than omissions due solely to a document not having been returned by the related recording office) cannot be cured within such 90-day period, (i) repurchase the operating statementsaffected Mortgage Loan (which, income for the purposes of this clause (i), shall include an REO Loan) at the applicable Purchase Price (as defined in the Pooling and expense reports and all other contracts Servicing Agreement) not later than the end of such 90-day period or documents required to be delivered to Purchaser pursuant to this Agreement are true, correct and complete copies; and (ii) all contracts or documents required substitute a Qualified Substitute Mortgage Loan for such affected Mortgage Loan (which, for purposes of this clause (ii), shall include an REO Loan) not later than the end of such 90-day period (and in no event later than the second anniversary of the Closing Date) and pay the Master Servicer for deposit into the Collection Account, any Substitution Shortfall Amount in connection therewith; provided, however, that, unless the breach would cause the Mortgage Loan not to be a Qualified Mortgage, if such Document Defect or Breach is capable of being cured but not within such 90-day period and the Seller has commenced and is diligently proceeding with the cure of such Document Defect or Breach within such 90-day period, the Seller shall have an additional 90 days to complete such cure (or, failing such cure, to repurchase or substitute the related Mortgage Loan (which, for the purpose of such repurchase or substitution, shall include an REO Loan)); and provided, further, that with respect to such additional 90-day period, the Seller shall have delivered an officer's certificate to Purchaser pursuant the Trustee setting forth the reason such Document Defect or Breach is not capable of being cured within the initial 90-day period and what actions the Seller is pursuing in connection with the cure thereof and stating that the Seller anticipates that such Document Defect or Breach will be cured within the additional 90-day period; and provided, further, that no Document Defect (other than with respect to this Agreement are the Specially Designated Mortgage Loan Documents) shall be considered to materially and adversely affect the interests of the Certificateholders or the value of the related Mortgage Loan unless the document with respect to which the Document Defect exists is required in full force and effectconnection with an imminent enforcement of the mortgagee's rights or remedies under the related Mortgage Loan, without material default defending any claim asserted by any borrower or third party with respect to the Mortgage Loan, establishing the validity or priority of any lien or any collateral securing the Mortgage Loan or for any immediate servicing obligations.
(1) the weighted average debt service coverage ratio for all the remaining Crossed Loans for the four calendar quarters immediately preceding such repurchase or substitution is not less than the weighted average debt service coverage ratio for all such Crossed Loans, including the affected Crossed Loan, for the four calendar quarters immediately preceding such repurchase or substitution, and without any right of set(2) the weighted average loan to-off except as disclosed in writing value ratio for the remaining Crossed Loans determined at the time of such delivery.
(d) There is no master lease repurchase or substitution based upon an appraisal obtained by the Special Servicer at the expense of the Property related Seller shall not be greater than the weighted average loan-to-value ratio for all such Crossed Loans, including the affected Crossed Loan; provided, that if such debt service coverage and loan-to-value criteria are satisfied and any Crossed Loan (that is not the Crossed Loan directly affected by the subject Breach or Document Defect) is not so materially and adversely affected and therefore is not so repurchased or substituted, then such Crossed Loan shall be released from its cross-collateralization and cross-default provision so long as such Crossed Loan (that is not the Crossed Loan directly affected by the subject Breach or Document Defect) is held in the Trust Fund; and provided, further, that the repurchase of less than all such Crossed Loans and the release of any Crossed Loan from a cross-collateralization and cross-default provision shall be subject to any affiliate the delivery by the Seller to the Trustee, at the expense of the Seller, of an Opinion of Counsel to the effect that such release would not cause either of REMIC I or REMIC II to fail to qualify as a REMIC under the Code or result in the imposition of any tax on "prohibited transactions" or "contributions" after the Startup Day under the REMIC Provisions; and provided, further, that the Controlling Class Representative (if such master lease existsone is then acting) shall have consented to the repurchase or substitution of the affected Crossed Loan, which consent shall not be unreasonably withheld. For a period of two years from the Closing Date, so long as there remains any Mortgage File relating to a Mortgage Loan as to which there is any uncured Document Defect or Breach known to the Seller, the Seller shall cause such master lease to be terminated at Closing without Purchaser paying any termination fee. The Rent Roll attached hereto as Exhibit B is trueprovide, correct and complete in all material respects as of the date set forth on the Rent Roll. As of the Closingonce every ninety days, the Rent Roll delivered at the Closing will be true, correct and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default by any party and without any right of setoff, except as expressly provided by the terms of such Leases or as disclosed on the Rent Roll attached hereto. The copies of the Leases and other agreements with the tenants under the Leases (the “Tenants”) delivered to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating officer's certificate to the Real Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real Property.
(e) Exhibit J attached hereto is a true and complete schedule of all of the Contracts (Trustee described above as hereinafter defined in Section 7), true, complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy of the management agreement currently in effect with respect to the Property. To Seller’s actual knowledge, the Contracts are in full force reasons such Document Defect or Breach remains uncured and effect, without material default by any party and without any claims made for the right of setoff, except as expressly provided by the terms of such Contracts or as disclosed to Purchaser in writing at the time of such delivery. The Contracts constitute the entire agreements with such vendors relating to the Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements as have been delivered actions being taken to Purchaser, and there are no other agreements with any third parties (excludingpursue cure; provided, however, that, without limiting the Leases effect of the foregoing provisions of this Section 3(c), if such Document Defect or Breach shall materially and Permitted Encumbrances) affecting adversely affect the Property which will survive value of such Mortgage Loan or the Closing.
interests of the holders of the Certificates therein (f) At the Closing, there will be no outstanding contracts made by Seller for the construction or repair of any improvements subject to the Improvements which have not been fully paid forlast proviso in the second preceding sentence), and the Seller shall cause to be discharged in all mechanics’ cases on or materialmen’s liens arising from any labor or materials furnished to the Improvements prior to the Closing.
second anniversary of the Closing Date either cause such Document Defect or Breach to be cured or repurchase or substitute for the affected Mortgage Loan. To the extent that the Seller is required to repurchase or substitute for a Crossed Loan hereunder in the manner prescribed above in this Section 3(c) while the Trustee continues to hold any other Crossed Loans in such Crossed Loan Group, the Seller and the Purchaser shall not enforce any remedies against the other's Primary Collateral (g) Except as set forth in Exhibit K attached hereto, there are no pending or, to Seller’s actual knowledge (without any duty of inquiry or investigationdefined below), threatened legal proceedings or actions of any kind or character affecting but each is permitted to exercise remedies against the Property or Seller’s interest therein, including, without limitation, condemnation proceedings.
(h) Seller has not received any actual written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or the Property relating in any way to a Release or compliance with Environmental Laws. For purposes of this Agreement, the phrase “Environmental Laws” shall mean any federal, state or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materials, or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 00Primary Collateral securing its respective Crossed
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Merrill Lynch Mortgage Trust 2004-Bpc1)
Representations, Warranties and Covenants of Seller. (a) The Seller hereby represents, represents and warrants to and covenants to Purchaser that with the following matters are true and correct Purchaser, as of the execution of this Agreement and will also be true and correct as of the Closingdate hereof, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx Xxxxxxxxxthat:
(ai) The Seller is a statutory trust corporation duly formed and organized, validly existing and in good standing under the laws of the State of Delaware. [_____], is duly qualified as a foreign organization in good standing in all jurisdictions to the extent such qualification is necessary to hold and sell the Mortgage Loans or otherwise comply with its obligations under this Agreement, except where the failure to be so qualified would not have a material adverse effect on its ability to perform its obligations hereunder, and possesses all requisite authority and power to carry on its business as currently conducted by it and to execute, deliver and comply with its obligations under the terms of this Agreement.
(ii) This Agreement has been, been duly and all the documents executed by Seller which are to be delivered to Purchaser at the Closing will be, duly validly authorized, executed and delivered by the Seller and, assuming due authorization, execution and will be delivery hereof by the Purchaser, constitutes a legal, valid and binding obligations obligation of Seller the Seller, enforceable against the Seller in accordance with their respective terms (its terms, except to the extent that as such enforcement may be limited by applicable (A) bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws affecting the enforcement of creditors' rights in general, and other (B) general equity principles relating to (regardless of whether such enforcement is considered in a proceeding in equity or limiting at law).
(iii) The execution and delivery of this Agreement by the right Seller and the Seller's performance and compliance with the terms of contracting parties generally), will be sufficient to convey title (if they purport to do so) and this Agreement will not (A) violate the Seller's organizational documents, (B) violate any provisions law or regulation or any administrative decree or order to which the Seller is subject or (C) constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material contract, agreement or other instrument to which the Seller is a party or to by which the Property or Seller is subject bound.
(iv) The Seller is not in default with respect to any order or bound. Subject decree of any court or any order, regulation or demand of any federal, state, municipal or other governmental agency or body, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect its performance hereunder.
(v) The Seller is not a party to the satisfaction of Section 8(a)(i) below, no consent, waiver or approval bound by any agreement or instrument or subject to any organizational document or any other corporate restriction or any judgment, order, writ, injunction, decree, law or regulation that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the ability of the Seller to perform its obligations under this Agreement or that requires the consent of any third party is required in connection with person to the execution and delivery by Seller of this Agreement by the Seller or the performance by the Seller of the its obligations to be performed by Seller under this Agreement.
(vi) Except for the recordation and/or filing of assignments and other transfer documents with respect to the Mortgage Loans, as contemplated by Section 2(d), no consent, approval, authorization or order of, registration or filing with, or notice to, 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; and no bulk sale law applies to such transactions.
(vii) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller that would, in the Seller's good faith and reasonable judgment, prohibit its entering into this Agreement or materially and adversely affect the performance by the Seller of its obligations under this Agreement.
(viii) The Seller intends to treat the transfer of the Mortgage Loans to the Purchaser as a sale for accounting and tax purposes. In connection with the foregoing, the Seller shall cause all of its records to reflect such transfer as a sale (as opposed to a secured loan). The consideration received by the Seller upon the sale of the Mortgage Loans to the Purchaser will constitute at least reasonably equivalent value and fair consideration for the Mortgage Loans. The Seller will be solvent at all relevant times prior to, and will not be rendered insolvent by, the sale of the Mortgage Loans to the Purchaser. The Seller is not selling the Mortgage Loans to the Purchaser with any intent to hinder, delay or defraud any of the creditors of the Seller. After giving effect to its transfer of the Mortgage Loans to the Purchaser, as provided herein, the value of the Seller's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Seller's debts and obligations, including contingent and unliquidated debts and obligations of the Seller, and the Seller will not be left with unreasonably small assets or capital with which to engage in and conduct its business. The Mortgage Loans do not constitute all or substantially all of the assets of the Seller. The Seller does not intend to, and does not believe that it will, incur debts or obligations beyond its ability to pay such debts and obligations as they mature.
(ix) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Seller are pending or contemplated.
(b) Except The Seller hereby makes, for the benefit of the Purchaser, with respect to each Mortgage Loan, as of the Closing Date or as of such other date expressly set forth therein, each of the representations and warranties set forth on Exhibit M B attached hereto, Seller has not received from any governmental authority written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any violation of any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable to the Property, or any part thereof, that will not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change to the zoning classification or any proceedings to widen or realign any streets or highways adjacent to the Property or of any condemnation proceedings.
(c) To Seller’s actual knowledge, (i) the operating statements, income and expense reports and all other contracts or documents required to be delivered to Purchaser pursuant to this Agreement are true, correct and complete copies; and (ii) all contracts or documents required to be delivered to Purchaser pursuant to this Agreement are in full force and effect, without material default by any party and without any right of set-off except as disclosed in writing at the time of such delivery.
(d) There is no master lease of the Property to any affiliate of Seller, or if such master lease exists, Seller shall cause such master lease to be terminated at Closing without Purchaser paying any termination fee. The Rent Roll attached hereto as Exhibit B is true, correct and complete in all material respects as of the date otherwise set forth on the Rent Roll. As of the Closing, the Rent Roll delivered at the Closing will be true, correct and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default by any party and without any right of setoff, except as expressly provided by the terms of such Leases or as disclosed on the Rent Roll Exhibit C attached hereto. The copies of the Leases and other agreements with the tenants under the Leases (the “Tenants”) delivered to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating to the Real Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real Property.
(e) Exhibit J attached hereto is a true and complete schedule of all of the Contracts (as hereinafter defined in Section 7), true, complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy of the management agreement currently in effect with respect to the Property. To Seller’s actual knowledge, the Contracts are in full force and effect, without material default by any party and without any claims made for the right of setoff, except as expressly provided by the terms of such Contracts or as disclosed to Purchaser in writing at the time of such delivery. The Contracts constitute the entire agreements with such vendors relating to the Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excluding, however, the Leases and Permitted Encumbrances) affecting the Property which will survive the Closing.
(f) At the Closing, there will be no outstanding contracts made by Seller for the construction or repair of any improvements to the Improvements which have not been fully paid for, and Seller shall cause to be discharged all mechanics’ or materialmen’s liens arising from any labor or materials furnished to the Improvements prior to the Closing.
(g) Except as set forth in Exhibit K attached hereto, there are no pending or, to Seller’s actual knowledge (without any duty of inquiry or investigation), threatened legal proceedings or actions of any kind or character affecting the Property or Seller’s interest therein, including, without limitation, condemnation proceedings.
(h) Seller has not received any actual written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or the Property relating in any way to a Release or compliance with Environmental Laws. For purposes of this Agreement, the phrase “Environmental Laws” shall mean any federal, state or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materials, or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 00
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (CWCapital Commercial Funding Corp.)
Representations, Warranties and Covenants of Seller. (a) The Seller hereby represents, represents and warrants to and covenants to Purchaser that with the following matters are true and correct Purchaser, as of the execution of this Agreement and will also be true and correct as of the Closingdate hereof, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx Xxxxxxxxxthat:
(ai) The Seller is a statutory trust corporation duly formed and organized, validly existing and in good standing under the laws of the State of Delaware. California and the Seller has taken all necessary corporate action to authorize the execution, delivery and performance of this Agreement by it, and has the power and authority to execute, deliver and perform this Agreement and all transactions contemplated hereby.
(ii) This Agreement has been, been duly and all the documents executed by Seller which are to be delivered to Purchaser at the Closing will be, duly validly authorized, executed and delivered by Seller the Seller, all requisite action by the Seller's directors and will be legalofficers has been taken in connection therewith, valid and (assuming the due authorization, execution and delivery hereof by the Purchaser) this Agreement constitutes the valid, legal and binding obligations agreement of Seller the Seller, enforceable against the Seller in accordance with their respective terms (its terms, except to the extent that as such enforcement may be limited by applicable (A) laws relating to bankruptcy, insolvency, moratorium and fraudulent transfer, reorganization, receivership, conservatorship or moratorium, (B) other principles laws relating to or limiting affecting the right rights of contracting parties creditors generally, or (C) general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law), will be sufficient to convey title .
(if they purport to do soiii) The execution and delivery of this Agreement by the Seller and the Seller's performance and compliance with the terms of this Agreement will not (A) violate the Seller's certificate of incorporation or bylaws, (B) violate any provisions law or regulation or any administrative decree or order to which it is subject if compliance therewith is necessary (1) to ensure the enforceability of this Agreement or (2) for the Seller to perform its duties and obligations under this Agreement, or (C) constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material contract, agreement or other instrument to which the Seller is a party or to by which the Property or Seller is bound, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or materially and adversely affect its performance hereunder.
(iv) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or other governmental agency or body, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or materially and adversely affect its performance hereunder.
(v) The Seller is not a party to or bound by any agreement or instrument or subject to any certificate of incorporation, bylaws or bound. Subject any other corporate restriction or any judgment, order, writ, injunction, decree, law or regulation that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the ability of the Seller to perform its obligations under this Agreement or that requires the consent of any third person to the satisfaction of Section 8(a)(i) below, no consent, waiver or approval by any third party is required in connection with the execution and delivery by Seller of this Agreement or the performance by the Seller of its obligations under this Agreement (except to the extent such consent has been obtained).
(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 or the consummation of the transactions contemplated by this Agreement except as have previously been obtained, and no bulk sale law applies to such transactions.
(vii) None of the sale of the Mortgage Loans by the Seller, the transfer of the Mortgage Loans to the Trustee, and the execution, delivery or performance of this Agreement by the Seller, results or will result in the creation or imposition of any lien on any of the Seller's assets or property that would have a material adverse effect upon the Seller's ability to perform its duties and obligations under this Agreement or materially impair the ability of the Purchaser to be performed realize on the Mortgage Loans.
(viii) There is no action, suit, proceeding or investigation pending or to the knowledge of the Seller, threatened against the Seller in any court or by or before any other governmental agency or instrumentality which would, in the Seller's good faith and reasonable judgment, prohibit its entering into this Agreement or materially and adversely affect the validity of this Agreement or the performance by the Seller of its obligations under this Agreement.
(bix) Except Under generally accepted accounting principles ("GAAP") and for federal income tax purposes, the Seller will report the transfer of the Mortgage Loans to the Purchaser as set forth on Exhibit M attached hereto, a sale of the Mortgage Loans to the Purchaser in exchange for consideration consisting of a cash amount equal to the Purchase Consideration. The consideration received by the Seller has not received from any governmental authority written noticeupon the sale of the Mortgage Loans to the Purchaser will constitute at least reasonably equivalent value and fair consideration for the Mortgage Loans. The Seller will be solvent at all relevant times prior to, and Seller has no actual knowledge (without any duty will not be rendered insolvent by, the sale of inquiry or investigation) of any violation of any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable the Mortgage Loans to the Property, or any part thereof, that will Purchaser. The Seller is not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change selling the Mortgage Loans to the zoning classification Purchaser with any intent to hinder, delay or defraud any proceedings to widen or realign any streets or highways adjacent to of the Property or creditors of any condemnation proceedingsthe Seller.
(cx) To Seller’s actual knowledgeThe prospectus supplement dated May 31, 2007 (i) the operating statements"Prospectus Supplement"), income and expense reports and which supplements the base prospectus dated May 10, 2007 (the "Prospectus"), contains all other contracts or documents the information that is required to be delivered to Purchaser provided in respect of the Seller (that arise from its role as "sponsor" (within the meaning of Regulation AB)), the Mortgage Loans, the related Mortgagors and the related Mortgaged Properties pursuant to this Agreement are true, correct and complete copies; and (ii) all contracts or documents required to be delivered to Purchaser pursuant to this Agreement are in full force and effect, without material default by any party and without any right of set-off except as disclosed in writing at the time of such delivery.
(d) There is no master lease of the Property to any affiliate of Seller, or if such master lease exists, Seller shall cause such master lease to be terminated at Closing without Purchaser paying any termination fee. The Rent Roll attached hereto as Exhibit B is true, correct and complete in all material respects as of the date set forth on the Rent Roll. As of the Closing, the Rent Roll delivered at the Closing will be true, correct and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default by any party and without any right of setoff, except as expressly provided by the terms of such Leases or as disclosed on the Rent Roll attached hereto. The copies of the Leases and other agreements with the tenants under the Leases (the “Tenants”) delivered to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating to the Real Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real Property.
(e) Exhibit J attached hereto is a true and complete schedule of all of the Contracts (as hereinafter defined in Section 7), true, complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy of the management agreement currently in effect with respect to the Property. To Seller’s actual knowledge, the Contracts are in full force and effect, without material default by any party and without any claims made for the right of setoff, except as expressly provided by the terms of such Contracts or as disclosed to Purchaser in writing at the time of such delivery. The Contracts constitute the entire agreements with such vendors relating to the Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excluding, however, the Leases and Permitted Encumbrances) affecting the Property which will survive the Closing.
(f) At the Closing, there will be no outstanding contracts made by Seller for the construction or repair of any improvements to the Improvements which have not been fully paid for, and Seller shall cause to be discharged all mechanics’ or materialmen’s liens arising from any labor or materials furnished to the Improvements prior to the Closing.
(g) Except as set forth in Exhibit K attached hereto, there are no pending or, to Seller’s actual knowledge (without any duty of inquiry or investigation), threatened legal proceedings or actions of any kind or character affecting the Property or Seller’s interest therein, including, without limitation, condemnation proceedings.
(h) Seller has not received any actual written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or the Property relating in any way to a Release or compliance with Environmental LawsRegulation AB. For purposes purpose of this Agreement, the phrase “Environmental Laws” "Regulation AB" shall mean any federalSubpart 229.1100 - Asset Backed Securities (Regulation AB), state 17 C.F.R. ss.ss.229.1100-229.1123, as such may be amended from time to time, and subject to such clarification and interpretation as have been provided by the Commission in the adopting release (Asset-Backed Securities, Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506-1,631 (Jan. 7, 2005)) or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materialsby the staff of the Commission, or as may be provided by the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 00Commission or its staff from time to time.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (ML-CFC Commercial Mortgage Trust 2007-7)
Representations, Warranties and Covenants of Seller. (a) The Seller hereby represents, represents and warrants to and covenants to Purchaser that with the following matters are true and correct Purchaser, as of the execution of this Agreement and will also be true and correct as of the Closingdate hereof, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx Xxxxxxxxxthat:
(ai) The Seller is a statutory trust national banking association duly formed and organized, validly existing and in good standing under the laws of the State United States and the Seller has taken all necessary corporate action to authorize the execution, delivery and performance of Delaware. this Agreement by it, and has the power and authority to execute, deliver and perform this Agreement and all transactions contemplated hereby.
(ii) This Agreement has been, been duly and all the documents executed by Seller which are to be delivered to Purchaser at the Closing will be, duly validly authorized, executed and delivered by Seller the Seller, all requisite action by the Seller's directors and will be legalofficers has been taken in connection therewith, valid and (assuming the due authorization, execution and delivery hereof by the Purchaser) this Agreement constitutes the valid, legal and binding obligations agreement of Seller the Seller, enforceable against the Seller in accordance with their respective terms (its terms, except to the extent that as such enforcement may be limited by applicable (A) laws relating to bankruptcy, insolvency, moratorium and fraudulent transfer, reorganization, receivership, conservatorship or moratorium, (B) other principles laws relating to or limiting affecting the right rights of contracting parties creditors generally, or (C) general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law), will be sufficient to convey title .
(if they purport to do soiii) The execution and delivery of this Agreement by the Seller and the Seller's performance and compliance with the terms of this Agreement will not (A) violate the Seller's certificate of incorporation or bylaws, (B) violate any provisions law or regulation or any administrative decree or order to which it is subject if compliance therewith is necessary (1) to ensure the enforceability of this Agreement or (2) for the Seller to perform its duties and obligations under this Agreement, or (C) constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material contract, agreement or other instrument to which the Seller is a party or to by which the Property or Seller is bound, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or materially and adversely affect its performance hereunder.
(iv) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or other governmental agency or body, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or materially and adversely affect its performance hereunder.
(v) The Seller is not a party to or bound by any agreement or instrument or subject to any articles of association, bylaws or bound. Subject any other corporate restriction or any judgment, order, writ, injunction, decree, law or regulation that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the ability of the Seller to perform its obligations under this Agreement or that requires the consent of any third person to the satisfaction of Section 8(a)(i) below, no consent, waiver or approval by any third party is required in connection with the execution and delivery by Seller of this Agreement or the performance by the Seller of its obligations under this Agreement (except to the extent such consent has been obtained).
(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 or the consummation of the transactions contemplated by this Agreement except as have previously been obtained, and no bulk sale law applies to such transactions.
(vii) None of the sale of the Mortgage Loans by the Seller, the transfer of the Mortgage Loans to the Trustee, and the execution, delivery or performance of this Agreement by the Seller, results or will result in the creation or imposition of any lien on any of the Seller's assets or property that would have a material adverse effect upon the Seller's ability to perform its duties and obligations under this Agreement or materially impair the ability of the Purchaser to be performed realize on the Mortgage Loans.
(viii) There is no action, suit, proceeding or investigation pending or to the knowledge of the Seller, threatened against the Seller in any court or by or before any other governmental agency or instrumentality which would, in the Seller's good faith and reasonable judgment, prohibit its entering into this Agreement or materially and adversely affect the validity of this Agreement or the performance by the Seller of its obligations under this Agreement.
(bix) Except Under generally accepted accounting principles ("GAAP") and for federal income tax purposes, the Seller will report the transfer of the Mortgage Loans to the Purchaser as set forth on Exhibit M attached hereto, a sale of the Mortgage Loans to the Purchaser in exchange for consideration consisting of a cash amount equal to the Purchase Consideration. The consideration received by the Seller has not received from any governmental authority written noticeupon the sale of the Mortgage Loans to the Purchaser will constitute at least reasonably equivalent value and fair consideration for the Mortgage Loans. The Seller will be solvent at all relevant times prior to, and Seller has no actual knowledge (without any duty will not be rendered insolvent by, the sale of inquiry or investigation) of any violation of any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable the Mortgage Loans to the Property, or any part thereof, that will Purchaser. The Seller is not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change selling the Mortgage Loans to the zoning classification Purchaser with any intent to hinder, delay or defraud any proceedings to widen or realign any streets or highways adjacent to of the Property or creditors of any condemnation proceedingsthe Seller.
(cx) To Seller’s actual knowledge, (i) The Prospectus Supplement contains all the operating statements, income and expense reports and all other contracts or documents information that is required to be delivered to Purchaser provided in respect of the Seller (that arise from its role as "sponsor" (within the meaning of Regulation AB)), the Mortgage Loans, the related Mortgagors and the related Mortgaged Properties pursuant to this Agreement are true, correct and complete copies; and (ii) all contracts or documents required to be delivered to Purchaser pursuant to this Agreement are in full force and effect, without material default by any party and without any right of set-off except as disclosed in writing at the time of such delivery.
(d) There is no master lease of the Property to any affiliate of Seller, or if such master lease exists, Seller shall cause such master lease to be terminated at Closing without Purchaser paying any termination fee. The Rent Roll attached hereto as Exhibit B is true, correct and complete in all material respects as of the date set forth on the Rent Roll. As of the Closing, the Rent Roll delivered at the Closing will be true, correct and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default by any party and without any right of setoff, except as expressly provided by the terms of such Leases or as disclosed on the Rent Roll attached hereto. The copies of the Leases and other agreements with the tenants under the Leases (the “Tenants”) delivered to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating to the Real Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real Property.
(e) Exhibit J attached hereto is a true and complete schedule of all of the Contracts (as hereinafter defined in Section 7), true, complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy of the management agreement currently in effect with respect to the Property. To Seller’s actual knowledge, the Contracts are in full force and effect, without material default by any party and without any claims made for the right of setoff, except as expressly provided by the terms of such Contracts or as disclosed to Purchaser in writing at the time of such delivery. The Contracts constitute the entire agreements with such vendors relating to the Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excluding, however, the Leases and Permitted Encumbrances) affecting the Property which will survive the Closing.
(f) At the Closing, there will be no outstanding contracts made by Seller for the construction or repair of any improvements to the Improvements which have not been fully paid for, and Seller shall cause to be discharged all mechanics’ or materialmen’s liens arising from any labor or materials furnished to the Improvements prior to the Closing.
(g) Except as set forth in Exhibit K attached hereto, there are no pending or, to Seller’s actual knowledge (without any duty of inquiry or investigation), threatened legal proceedings or actions of any kind or character affecting the Property or Seller’s interest therein, including, without limitation, condemnation proceedings.
(h) Seller has not received any actual written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or the Property relating in any way to a Release or compliance with Environmental LawsRegulation AB. For purposes purpose of this Agreement, the phrase “Environmental Laws” "Regulation AB" shall mean any federalSubpart 229.1100 - Asset Backed Securities (Regulation AB), state 17 C.F.R. ss.ss.229.1100-229.1123, as such may be amended from time to time, and subject to such clarification and interpretation as have been provided by the Commission in the adopting release (Asset-Backed Securities, Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materialsby the staff of the Commission, or as may be provided by the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 00Commission or its staff from time to time.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (ML-CFC Commercial Mortgage Trust 2006-4)
Representations, Warranties and Covenants of Seller. (a) The Seller hereby represents, represents and warrants to and covenants to Purchaser that with the following matters are true and correct Purchaser, as of the execution of this Agreement and will also be true and correct as of the Closingdate hereof, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx Xxxxxxxxxthat:
(ai) The Seller is a statutory trust duly formed and organized or formed, as the case may be, validly existing and in good standing as a legal entity under the laws of the State of Delaware. New York and possesses all requisite authority, power, licenses, permits and franchises to carry on its business as currently conducted by it and to execute, deliver and comply with its obligations under the terms of this Agreement.
(ii) This Agreement has been, been duly and all the documents executed by Seller which are to be delivered to Purchaser at the Closing will be, duly validly authorized, executed and delivered by the Seller and, assuming due authorization, execution and will be delivery hereof by the Purchaser, constitutes a legal, valid and binding obligations obligation of Seller the Seller, enforceable against the Seller in accordance with their respective terms (its terms, except to the extent that as such enforcement may be limited by applicable (A) bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws affecting the enforcement of creditors' rights in general, and other (B) general equity principles relating to (regardless of whether such enforcement is considered in a proceeding in equity or limiting at law).
(iii) The execution and delivery of this Agreement by the right Seller and the Seller's performance and compliance with the terms of contracting parties generally), will be sufficient to convey title (if they purport to do so) and this Agreement will not (A) violate the Seller's organizational documents, (B) violate any provisions law or regulation or any administrative decree or order to which the Seller is subject or (C) constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material contract, agreement or other instrument to which the Seller is a party or to by which the Property or Seller is subject bound.
(iv) The Seller is not in default with respect to any order or bound. Subject decree of any court or any order, regulation or demand of any federal, state, municipal or other governmental agency or body, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or have consequences that would materially and adversely affect its performance hereunder.
(v) The Seller is not a party to the satisfaction of Section 8(a)(i) below, no consent, waiver or approval bound by any agreement or instrument or subject to any organizational document or any other corporate or limited liability company (as applicable) restriction or any judgment, order, writ, injunction, decree, law or regulation that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the ability of the Seller to perform its obligations under this Agreement or that requires the consent of any third party is required in connection with person to the execution and delivery by Seller of this Agreement by the Seller or the performance by the Seller of the its obligations to be performed by Seller under this Agreement.
(vi) Except for the recordation and/or filing of assignments and other transfer documents with respect to the Mortgage Loans, as contemplated by Section 2(d) hereof, no consent, approval, authorization or order of, registration or filing with, or notice to, 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; and no bulk sale law applies to such transactions.
(vii) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller that would, in the Seller's good faith and reasonable judgment, prohibit its entering into this Agreement or materially and adversely affect the performance by the Seller of its obligations under this Agreement.
(viii) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Seller are pending or contemplated. In addition, the Seller hereby further represents and warrants to, and covenants with, the Purchaser, as of the date hereof, that:
(i) Under statutory accounting principles and for federal income tax purposes, the Seller will report the transfer of the Mortgage Loans to the Purchaser, as provided herein, as a sale of the Mortgage Loans to the Purchaser in exchange for the consideration specified in Section 1 hereof. In connection with the foregoing, the Seller shall cause all of its records to reflect such transfer as a sale (as opposed to a secured loan). The consideration received by the Seller upon the sale of the Mortgage Loans to the Purchaser will constitute at least reasonably equivalent value and fair consideration for the Mortgage Loans. The Seller will be solvent at all relevant times prior to, and will not be rendered insolvent by, the sale of the Mortgage Loans to the Purchaser. The Seller is not selling the Mortgage Loans to the Purchaser with any intent to hinder, delay or defraud any of the creditors of the Seller. After giving effect to its transfer of the Mortgage Loans to the Purchaser, as provided herein, the value of the Seller's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Seller's debts and obligations, including contingent and unliquidated debts and obligations of the Seller, and the Seller will not be left with unreasonably small assets or capital with which to engage in and conduct its business. The Mortgage Loans do not constitute all or substantially all of the assets of the Seller. The Seller does not intend to, and does not believe that it will, incur debts or obligations beyond its ability to pay such debts and obligations as they mature.
(ii) The Seller will acquire the Residual Interest Certificates and the Unsold Certificates (as defined below) (the Residual Interest Certificates and the Unsold Certificates are collectively referred to as the "Seller Certificates"; and the Seller Certificates that constitute Non-Registered Certificates are referred to as the "Non-Registered Seller Certificates") for its own account and not with a view to, or sale or transfer in connection with, any distribution thereof, in whole or in part, in any manner that would violate the Securities Act or any applicable state securities laws.
(iii) The Seller understands that (A) the Non-Registered Seller Certificates have not been and will not be registered under the Securities Act or registered or qualified under any applicable state securities laws, (B) neither the Purchaser nor any other party is obligated so to register or qualify the Non-Registered Seller Certificates and (C) neither the Non-Registered Seller Certificates nor any security issued in exchange therefor or in lieu thereof may be resold or transferred unless it is (1) registered pursuant to the Securities Act and registered or qualified pursuant to any applicable state securities laws or (2) sold or transferred in a transaction which is exempt from such registration and qualification and the Certificate Registrar has received the certifications and/or opinions of counsel required by the Pooling and Servicing Agreement.
(iv) The Seller understands that it may not sell or otherwise transfer the Non-Registered Seller Certificates, any security issued in exchange therefor or in lieu thereof or any interest in the foregoing except in compliance with the provisions of Section 5.02 of the Pooling and Servicing Agreement, which provisions it has or, as of the Closing Date, will have carefully reviewed, and that the Non-Registered Seller Certificates will bear legends that identify the transfer restrictions to which such Non-Registered Seller Certificates are subject.
(v) Neither the Seller nor anyone acting on its behalf has (A) offered, transferred, pledged, sold or otherwise disposed of any Non-Registered Seller Certificate, any interest in a Non-Registered Seller Certificate or any other similar security to any person in any manner, (B) solicited any offer to buy or accept a transfer, pledge or other disposition of any Non-Registered Seller Certificate, any interest in a Non-Registered Seller Certificate or any other similar security from any person in any manner, (C) otherwise approached or negotiated with respect to any Non-Registered Seller Certificate, any interest in a Non-Registered Seller Certificate or any other similar security with any person in any manner, (D) made any general solicitation by means of general advertising or in any other manner, or (E) taken any other action, that (in the case of any of the acts described in clauses (A) through (E) above) would constitute a distribution of the Non-Registered Seller Certificates under the Securities Act, would render the disposition of the Non-Registered Seller Certificates a violation of Section 5 of the Securities Act or any state securities law or would require registration or qualification of the Non-Registered Seller Certificates pursuant thereto. The Seller will not act, nor has it authorized nor will it authorize any person to act, in any manner set forth in the foregoing sentence with respect to the Non-Registered Seller Certificates, any interest in the Non-Registered Seller Certificates or any other similar security.
(vi) The Seller has been furnished with all information regarding (A) the Purchaser, (B) the Non-Registered Seller Certificates and distributions thereon, (C) the Pooling and Servicing Agreement and the Trust Fund, and (D) all related matters, that it has requested.
(vii) The Seller is either (a) a "qualified institutional buyer" within the meaning of Rule 144A under the Securities Act or (b) Except an "accredited investor" as defined in any of paragraphs (1), (2), (3) and (7) of Rule 501(a) under the Securities Act or an entity in which all its equity owners are "accredited investors" as defined in such paragraphs and has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Non-Registered Seller Certificates. The Seller has sought such accounting, legal and tax advice as it has considered necessary to make an informed investment decision; and the Seller is able to bear the economic risks of such an investment and can afford a complete loss of such investment.
(viii) The Seller is not a Plan and is not directly or indirectly acquiring the Non-Registered Seller Certificates on behalf of, as named fiduciary of, as trustee of or with assets of a Plan.
(ix) The Seller is a United States Tax Person and is not a Disqualified Organization.
(b) The Seller hereby makes, for the benefit of the Purchaser, with respect to each Mortgage Loan, as of the Closing Date or as of such other date expressly set forth therein, each of the representations and warranties set forth on Exhibit M attached B hereto, Seller has not received from any governmental authority written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any violation of any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable to the Property, or any part thereof, that will not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change to the zoning classification or any proceedings to widen or realign any streets or highways adjacent to the Property or of any condemnation proceedings.
(c) To Seller’s actual knowledgeThe Seller intends to transfer the Residual Interest Certificates to Merrill Lynch, (i) the operating statementsPierce, income and expense reports and all other contracts Fenner Smith Inc. on or documents required to be delivered to Purchaser pursuant to this Agreement are true, correct and complete copies; and (ii) all contracts or documents required to be delivered to Purchaser pursuant to this Agreement are in full force and effect, without material default by any party and without any right of set-off except as disclosed in writing at the time of such delivery.
(d) There is no master lease of the Property to any affiliate of Seller, or if such master lease exists, Seller shall cause such master lease to be terminated at Closing without Purchaser paying any termination fee. The Rent Roll attached hereto as Exhibit B is true, correct and complete in all material respects as of the date set forth on the Rent Roll. As of the Closing, the Rent Roll delivered at about the Closing Daxx; xxx, in connection xxxxxxxxx, xhe Seller will be true, correct and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default by any party and without any right of setoff, except as expressly provided by the terms of such Leases or as disclosed on the Rent Roll attached hereto. The copies of the Leases and other agreements comply with the tenants under the Leases (the “Tenants”) delivered to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating to the Real Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real Property.
(e) Exhibit J attached hereto is a true and complete schedule of all of the Contracts (as hereinafter defined in requirements of Section 7), true, complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy 5.02 of the management agreement currently Pooling and Servicing Agreement, as in effect with respect to on the Property. To Seller’s actual knowledgeClosing Date, the Contracts are in full force and effect, without material default by any party and without any claims made for the right of setoff, except as expressly provided by the terms of such Contracts or as disclosed to Purchaser in writing at the time of such deliveryapplicable law. The Contracts constitute Seller hereby directs the entire agreements with such vendors relating Purchaser to cause the Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excluding, however, the Leases and Permitted Encumbrances) affecting the Property which will survive the Closing.
(f) At the Closing, there will be no outstanding contracts made by Seller for the construction or repair of any improvements to the Improvements which have not been fully paid for, and Seller shall cause Residual Interest Certificates to be discharged all mechanics’ or materialmen’s liens arising from any labor or materials furnished to registered in the Improvements prior to the Closingname of Merrill Lynch, Pierce, Fenner Smith Inc. upon initial issuance.
(g) Except as set forth in Exhibit K attached hereto, there are no pending or, to Seller’s actual knowledge (without any duty of inquiry or investigation), threatened legal proceedings or actions of any kind or character affecting the Property or Seller’s interest therein, including, without limitation, condemnation proceedings.
(h) Seller has not received any actual written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or the Property relating in any way to a Release or compliance with Environmental Laws. For purposes of this Agreement, the phrase “Environmental Laws” shall mean any federal, state or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materials, or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 00
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (TIAA Seasoned Commercial Mortgage Trust 2007-C4)
Representations, Warranties and Covenants of Seller. Seller hereby represents, warrants and covenants to Purchaser that makes the following matters are true representations and correct warranties to Buyer as of the execution Effective Date:
(a) Each of the Seller Parties is a corporation or limited liability company duly organized, validly existing, and in good standing under the laws of its respective state of incorporation or organization, is qualified to do business in the State of California and the State of Nevada, and has the legal power and authority to own and lease its properties, to carry on its business as now being conducted and (in the case of Seller) to enter into this Agreement and (in the case of each Seller Party) each Seller Ancillary Document to which it may be party and, carry out the transactions contemplated hereby and thereby and perform and carry out all covenants and obligations on its part to be performed under and pursuant to this Agreement and all Seller Ancillary Documents.
(b) The execution, delivery and performance by the Seller and the Seller Parties of this Agreement and all Seller Ancillary Documents, as applicable, have been duly authorized by all necessary action, and do not and will also be true not require any consent or approval other than those which have already been obtained.
(c) The execution and correct as delivery of this Agreement and all Seller Ancillary Documents, the consummation of the Closingtransactions contemplated hereby and thereby and the fulfillment of and compliance with the provisions of this Agreement and the Seller Ancillary Documents, do not and will not conflict with or constitute a breach of or a default under, any of the terms, conditions or provisions of any Requirement of Law, or any organizational documents, deed of trust, mortgage, loan agreement, other evidence of indebtedness or any other material agreement or instrument to which any Seller Party is a party or by which it or any of its property is bound, or result in a breach of or a default under any of the foregoing or result in or require the creation or imposition of any Lien upon any of the properties or assets of any Seller Party (except as contemplated or permitted hereby), and each Seller Party has obtained or shall timely obtain all references to “Seller’s actual knowledge” shall mean Permits required for the actual knowledge performance of Xxxxxxxxxxx X. Xxxxxx or Xxxx Xxxxxxxxx:its obligations hereunder and thereunder, as the case may be, and Seller will timely obtain all Permits required for the operation of the Facility in accordance with Prudent Utility Practices, the requirements of this Agreement, the Seller Ancillary Documents and all applicable Requirements of Law.
(ad) Each of this Agreement and the Seller is a statutory trust duly formed and validly existing under Ancillary Documents constitutes the laws of the State of Delaware. This Agreement has been, and all the documents executed by Seller which are to be delivered to Purchaser at the Closing will be, duly authorized, executed and delivered by Seller and will be legal, valid and binding obligations obligation of each Seller Party which is party thereto enforceable against Seller in accordance with their respective terms (its terms, except to the extent that as such enforcement enforceability may be limited by applicable bankruptcy, insolvency, moratorium and other principles reorganization or similar laws relating to or limiting the right of contracting parties generally), will be sufficient to convey title (if they purport to do so) and will not violate any provisions of any material agreement to which Seller is a party or to which the Property or Seller is subject or bound. Subject to the satisfaction of Section 8(a)(i) below, no consent, waiver or approval by any third party is required in connection with the execution and delivery by Seller of this Agreement or the performance by Seller of the obligations to be performed by Seller under this Agreement.
(b) Except as set forth on Exhibit M attached hereto, Seller has not received from any governmental authority written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any violation of any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable to the Property, or any part thereof, that will not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change to the zoning classification or any proceedings to widen or realign any streets or highways adjacent to the Property or of any condemnation proceedings.
(c) To Seller’s actual knowledge, (i) the operating statements, income and expense reports and all other contracts or documents required to be delivered to Purchaser pursuant to this Agreement are true, correct and complete copies; and (ii) all contracts or documents required to be delivered to Purchaser pursuant to this Agreement are in full force and effect, without material default by any party and without any right of set-off except as disclosed in writing at the time of such delivery.
(d) There is no master lease of the Property to any affiliate of Seller, or if such master lease exists, Seller shall cause such master lease to be terminated at Closing without Purchaser paying any termination fee. The Rent Roll attached hereto as Exhibit B is true, correct and complete in all material respects as of the date set forth on the Rent Roll. As of the Closing, the Rent Roll delivered at the Closing will be true, correct and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default by any party and without any right of setoff, except as expressly provided by the terms of such Leases or as disclosed on the Rent Roll attached hereto. The copies of the Leases and other agreements with the tenants under the Leases (the “Tenants”) delivered to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating to the Real Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real Propertyenforcement of creditors’ rights generally or by general equitable principles, regardless of whether such enforceability is considered in a proceeding in equity or at law.
(e) Exhibit J attached hereto There is a true and complete schedule of all no pending, or to the knowledge of the Contracts (as hereinafter defined in Section 7)Seller, truethreatened action or proceeding affecting any Seller Party before any Governmental Authority, complete and correct copies which purports to affect the legality, validity or enforceability of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy this Agreement or any of the management agreement currently in effect with respect to the Property. To Seller’s actual knowledge, the Contracts are in full force and effect, without material default by any party and without any claims made for the right of setoff, except as expressly provided by the terms of such Contracts or as disclosed to Purchaser in writing at the time of such delivery. The Contracts constitute the entire agreements with such vendors relating to the Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excluding, however, the Leases and Permitted Encumbrances) affecting the Property which will survive the ClosingSeller Ancillary Documents.
(f) At None of the Closing, there will be no outstanding contracts made by Seller for the construction or repair Parties is in violation of any improvements Requirement of Law, which violations, individually or in the aggregate, would reasonably be expected to result in a material adverse effect on the Improvements which have not been fully paid forbusiness, and assets, operations, condition (financial or otherwise) or prospects of any Seller shall cause Party, or the ability of any Seller Party to be discharged all mechanics’ perform any of its obligations under this Agreement or materialmen’s liens arising from any labor or materials furnished to the Improvements prior to the ClosingSeller Ancillary Document.
(g) Except as set forth in Exhibit K attached hereto, there are no pending or, to Seller’s actual knowledge (without any duty of inquiry or investigation), threatened legal proceedings or actions of any kind or character affecting the Property or Seller’s interest therein, including, without limitation, condemnation proceedingsSeller is and will be a Special Purpose Entity.
(h) The Seller Parties have (i) not entered into this Agreement or any Seller Ancillary Document with the actual intent to hinder, delay or defraud any creditor, and (ii) received reasonably equivalent value in exchange for their respective obligations under this Agreement and the Seller Ancillary Documents. No petition in bankruptcy has been filed against any of the Seller Parties, and none of the Seller Parties nor any of their respective constituent Persons have ever made an assignment for the benefit of creditors or taken advantage of any insolvency act for its benefit as a debtor.
(i) All of the assumptions made in the Non-Consolidation Opinion, including any exhibits attached thereto, are true and correct. Seller has complied or will comply after the date hereof with all of the assumptions made with respect to Seller in the Non-Consolidation Opinion.
(j) None of the Seller Parties has any reason to believe that any of the Permits required to construct, maintain or operate the Facility in accordance with the Requirements will not be timely obtained in the ordinary course of business.
(k) All Tax returns and reports of each Seller Party required to be filed by it have been timely filed, and all Taxes shown on such Tax returns to be due and payable and all assessments, fees and other governmental charges upon the Seller Parties and upon its properties, assets, income, business and franchises that are due and payable have been paid when due and payable. None of the Seller Parties knows of any proposed Tax assessment against any of the Seller Parties that is not being actively contested by it in good faith and by appropriate proceeding.
(l) Seller owns or possesses, or will own or possess in a timely manner, all patents, rights to patents, trademarks, copyrights, and licenses necessary for the performance by the Seller of this Agreement and the Seller Ancillary Documents and the transactions contemplated thereby, without any conflict with the rights of others.
(m) Seller has not received any actual written noticeassigned, and Seller has no actual knowledge (without any duty of inquiry transferred, conveyed, encumbered, sold, or investigation) otherwise disposed of any civilFacility Energy, criminal Environmental Attributes, or administrative suitCapacity-Related Benefits except as permitted herein.
(n) At all times after the Effective Date, claimSeller shall have “Site Control” which means that Seller shall own the Site, hearinghave a right-of-way with respect to the Site, violationor be the lessee of the Site under the Leases which permit Seller to perform its obligations under the Agreement and the Seller Ancillary Documents. Seller shall provide Buyer with prompt notice of any change in the status of Seller’s Site Control. Seller shall not take any action or permit any action to be taken at or with respect to the Site that impairs or adversely affects the Facility, investigation, proceeding or demand pending or threatened against Seller or including the Property relating in any way to a Release or compliance with Environmental Laws. For purposes of this Agreement, the phrase “Environmental Laws” shall mean any federal, state or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materialsgeothermal resource, or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 00capability thereof.
Appears in 1 contract
Samples: Power Purchase Agreement
Representations, Warranties and Covenants of Seller. Seller hereby represents, represents and warrants and covenants to Purchaser that at closing Seller will have good and indefeasible fee simple title to the following Subject Property free and clear of all liens, encumbrances, covenants, restrictions, rights-of-way, easements, and any other matters are true affecting title to the Subject Property except for the Permitted Exceptions, and correct at closing, Seller will be in a position to convey the Subject Property to Purchaser free and clear of all liens, encumbrances, covenants, restrictions, rights-of-way, easements and other such matters affecting title except for the Permitted Exceptions. Seller further covenants and agrees with Purchaser that, from the date hereof until the closing, Seller shall not sell, assign, or convey any right, title, or interest whatsoever in or to the Subject Property, or create or permit to exist any lien, security interest, easement, encumbrance, charge, or condition affecting the Subject Property (other than the Permitted Exceptions) without promptly discharging the same prior to closing. Seller hereby further represents and warrants to Purchaser as follows:
a. Except for a possible claim by the federal Environmental Protection Agency which affects unrelated property and an ongoing proceeding by the Massachusetts Department of Environmental Protection which affects a portion of the Subject Property (the “Existing Environmental Proceedings”), there are no actions, suits, or proceedings pending or, to the best of Seller's knowledge, threatened against Seller or otherwise affecting any portion of the Subject Property, at law or in equity, or before or by any federal, state, municipal, or other governmental court, department, commission, board, bureau, agency, or instrumentality, domestic or foreign;
b. The execution by Seller of this Agreement Contract and will also be true and correct as the consummation by Seller of the Closing, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx Xxxxxxxxx:
(a) Seller is a statutory trust duly formed and validly existing under the laws of the State of Delaware. This Agreement has been, and all the documents executed by Seller which are to be delivered to Purchaser at the Closing will be, sale contemplated hereby have been duly authorized, executed and delivered by Seller and will be legaldo not, valid and binding obligations of Seller enforceable against Seller in accordance with their respective terms (except to and, at the extent that such enforcement may be limited by applicable bankruptcy, insolvency, moratorium and other principles relating to or limiting the right of contracting parties generally)closing date, will be sufficient to convey title (if they purport to do so) and will not violate any provisions not, result in a breach of any material agreement of the terms or provisions of, or constitute a default under any indenture, agreement, instrument, or obligation to which Seller is a party or to by which the Subject Property or Seller any portion thereof is subject or bound. , and do not, and at the closing date will not, constitute a violation of any regulation affecting the Subject to Property;
c. Except for the satisfaction of Section 8(a)(i) below, no consent, waiver or approval by any third party is required in connection with the execution and delivery by Seller of this Agreement or the performance by Seller of the obligations to be performed by Seller under this Agreement.
(b) Except as set forth on Exhibit M attached heretoExisting Environmental Proceedings, Seller has not received from any governmental authority written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) notice of any violation of any zoningordinance, buildingregulation, fire law, or health code statute of any governmental agency pertaining to the Subject Property or any other statuteportion thereof;
d. That, ordinance, rule or regulation applicable to the Property, or any part thereof, that will not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change to the zoning classification or any proceedings to widen or realign any streets or highways adjacent to the Property or of any condemnation proceedings.
(c) To Seller’s actual knowledge, (i) the operating statements, income and expense reports and all other contracts or documents required to be delivered to Purchaser pursuant to this Agreement are true, correct and complete copies; and (ii) all contracts or documents required to be delivered to Purchaser pursuant to this Agreement are in full force and effect, without material default by any party and without any right of set-off except as disclosed in writing at the time of such delivery.
(d) There is no master lease of the Property to any affiliate of Seller, or if such master lease exists, Seller shall cause such master lease to be terminated at Closing without Purchaser paying any termination fee. The Rent Roll attached hereto as Exhibit B is true, correct and complete in all material respects as of the date set forth on the Rent Roll. As of the Closing, the Rent Roll delivered at the Closing will be true, correct and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default by any party and without any right of setoff, except as expressly provided by the terms of such Leases or as disclosed on the Rent Roll attached hereto. The copies of the Leases and other agreements with the tenants under the Leases (the “Tenants”) delivered to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating to the Real Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real Property.
(e) Exhibit J attached hereto is a true and complete schedule of all of the Contracts (as hereinafter defined in Section 7), true, complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy of the management agreement currently in effect with respect to the Property. To Seller’s actual knowledge, the Contracts are in full force and effect, without material default by any party and without any claims made for the right of setoff, except as expressly provided by the terms of such Contracts or as disclosed to Purchaser in writing at the time of such delivery. The Contracts constitute the entire agreements with such vendors relating to the Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excluding, however, the Leases and Permitted Encumbrances) affecting the Property which will survive the Closing.
(f) At the Closingclosing, there will be no outstanding contracts made by Seller for the unpaid bills, claims, or liens in connection with any construction or repair of any improvements the Subject Property except for ones which will be paid in the ordinary course of business or which have been bonded around or the payment of which has otherwise been adequately provided for to the Improvements which have not been fully paid for, and Seller shall cause to be discharged all mechanics’ or materialmen’s liens arising from any labor or materials furnished to complete satisfaction of Purchaser; and
e. To the Improvements prior to the Closing.
(g) Except as set forth in Exhibit K attached heretobest of Seller's knowledge, there are has been no pending or, to Seller’s actual knowledge (without material release of any duty of inquiry pollutant or investigation), threatened legal proceedings or actions hazardous substance of any kind onto or character affecting under the Subject Property that would result in the prosecution of any claim, demand, suit, action or Seller’s interest thereinadministrative proceeding based on any environmental requirements of state, local or federal law including, without limitation, condemnation proceedings.
(h) Seller has but not received any actual written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or the Property relating in any way to a Release or compliance with Environmental Laws. For purposes of this Agreement, the phrase “Environmental Laws” shall mean any federal, state or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materials, or the environment, including, without limitationlimited to, the Comprehensive Environmental Response, Response Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, 9601 et seq. (“CERCLA”); All of the Resource Conservation foregoing representations and Recovery Act, 00warranties of Seller are made by Seller both as of the date hereof and as of the date of the closing hereunder.
Appears in 1 contract
Representations, Warranties and Covenants of Seller. (a) The Seller hereby represents, represents and warrants to and covenants to Purchaser that with the following matters are true and correct Purchaser, as of the execution of this Agreement and will also be true and correct as of the Closingdate hereof, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx Xxxxxxxxxthat:
(ai) The Seller is a statutory trust duly formed and national banking association validly existing under the laws of the State United States of Delaware. America and possesses all requisite authority, power, licenses, permits and franchises to carry on its business as currently conducted by it and to execute, deliver and comply with its obligations under the terms of this Agreement.
(ii) This Agreement has been, been duly and all the documents executed by Seller which are to be delivered to Purchaser at the Closing will be, duly validly authorized, executed and delivered by the Seller and, assuming due authorization, execution and will be delivery hereof by the Purchaser, constitutes a legal, valid and binding obligations obligation of Seller the Seller, enforceable against the Seller in accordance with their respective terms (its terms, except to the extent that as such enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other laws affecting the enforcement of creditors' rights in general, as they may be applied in the context of the insolvency of a national banking association, and by general equity principles relating to (regardless of whether such enforcement is considered in a proceeding in equity or limiting the right of contracting parties generallyat law), will be sufficient and by public policy considerations underlying the securities laws, to convey title (if they the extent that such public policy considerations limit the enforceability of the provisions of this Agreement which purport to do soprovide indemnification from liabilities under applicable securities laws.
(iii) The execution and delivery of this Agreement by the Seller and the Seller's performance and compliance with the terms of this Agreement will not (A) violate the Seller's articles of association or By-Laws, (B) violate any provisions law or regulation or any administrative decree or order to which it is subject or (C) constitute a material default (or an event which, with notice or lapse of time, or both, would constitute a material default) under, or result in the breach of, any material contract, agreement or other instrument to which the Seller is a party or to by which the Property or Seller is bound.
(iv) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or other governmental agency or body, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or have consequences that would materially and adversely affect its performance hereunder.
(v) The Seller is not a party to or bound by any agreement or instrument or subject to any articles of association, bylaws or bound. Subject any other corporate restriction or any judgment, order, writ, injunction, decree, law or regulation that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the ability of the Seller to perform its obligations under this Agreement or that requires the consent of any third person to the satisfaction of Section 8(a)(i) below, no consent, waiver or approval by any third party is required in connection with the execution and delivery by Seller of this Agreement or the performance by the Seller of its obligations under this Agreement (except to the extent such consent has been obtained).
(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 or the consummation of the transactions contemplated by this Agreement except as have previously been obtained, and no bulk sale law applies to such transactions.
(vii) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller that would, in the Seller's good faith and reasonable judgment, prohibit its entering into this Agreement or materially and adversely affect the performance by the Seller of its obligations to be performed by Seller under this Agreement.
(viii) Under generally accepted accounting principles ("GAAP") and for federal income tax purposes, the Seller will report the transfer of the Mortgage Loans to the Purchaser as a sale of the Mortgage Loans to the Purchaser in exchange for consideration consisting of a cash amount equal to the Aggregate Purchase Price. The consideration received by the Seller upon the sale of the Mortgage Loans to the Purchaser will constitute reasonably equivalent value at least equal to the fair market value of the Mortgage Loans. The Seller will be solvent at all relevant times prior to, and will not be rendered insolvent by, the sale of the Mortgage Loans to the Purchaser. The Seller is not selling the Mortgage Loans to the Purchaser with any intent to hinder, delay or defraud any of the creditors of the Seller.
(b) Except The Seller hereby makes the representations and warranties contained in Schedule I, Schedule II, Schedule III and Schedule IV hereto for the benefit of the Purchaser and the Trustee for the benefit of the Certificateholders as set forth on Exhibit M attached heretoof the Closing Date, Seller has not received from any governmental authority written notice, with respect to (and Seller has no actual knowledge (without any duty of inquiry or investigationsolely with respect to) of any violation of any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable to the Property, or any part thereof, that will not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change to the zoning classification or any proceedings to widen or realign any streets or highways adjacent to the Property or of any condemnation proceedingseach Mortgage Loan.
(c) To Seller’s actual knowledgeIf the Seller receives written notice of a Document Defect or a Breach pursuant to Section 2.03(a) of the Pooling and Servicing Agreement relating to a Mortgage Loan, then the Seller shall not later than 90 days from receipt of such notice (or, in the case of a Document Defect or Breach relating to a Mortgage Loan not being a "qualified mortgage" within the meaning of the REMIC Provisions (a "Qualified Mortgage"), not later than 90 days of any party to the Pooling and Servicing Agreement discovering such Document Defect or Breach), if such Document Defect or Breach shall materially and adversely affect the value of the related Mortgage Loan or the interest of the Certificateholders therein, cure such Document Defect or Breach, as the case may be, in all material respects, which shall include payment of losses and any Additional Trust Fund Expenses associated therewith or, if such Document Defect or Breach (other than omissions solely due to a document not having been returned by the related recording office) cannot be cured within such 90-day period, (i) repurchase the operating statements, income and expense reports and all other contracts affected Mortgage Loan at the applicable Purchase Price not later than the end of such 90-day period or documents required to be delivered to Purchaser pursuant to this Agreement are true, correct and complete copies; and (ii) substitute a Qualified Substitute Mortgage Loan for such affected Mortgage Loan not later than the end of such 90-day period (and in no event later than the second anniversary of the Closing Date) and pay the Master Servicer for deposit into the Certificate Account, any Substitution Shortfall Amount in connection therewith; provided, however, that if such Document Defect or Breach is capable of being cured but not within such 90-day period, such Document Defect or Breach does not relate to the Mortgage Loan not being treated as a Qualified Mortgage, and the Seller has commenced and is diligently proceeding with the cure of such Document Defect or Breach within such 90-day period, such Seller shall have an additional 90 days to complete such cure (or, failing such cure, to repurchase the related Mortgage Loan); and provided, further, that with respect to such additional 90-day period the Seller shall have delivered an Officer's Certificate to the Trustee setting forth the reason such Document Defect or Breach is not capable of being cured within the initial 90-day period and what actions the Seller is pursuing in connection with the cure thereof and stating that the Seller anticipates that such Document Defect or Breach will be cured within the additional 90-day period. For a period of two years from the Closing Date, so long as there remains any Mortgage File relating to a Mortgage Loan as to which there is any uncured Document Defect or Breach, the Seller shall provide the Officer's Certificate to the Trustee described above as to the reasons such Document Defect or Breach remains uncured and as to the actions being taken to pursue cure; provided, however, that, without limiting the effect of the forgoing provisions of this Section 3(c), if such Document Defect or Breach shall materially and adversely affect the value of such Mortgage Loan or the interests of the holders of the Certificates therein, the Seller shall in all contracts cases on or documents required prior to the second anniversary of the Closing Date either cause such Document Defect or Breach to be cured or repurchase the affected Mortgage Loan. Notwithstanding the foregoing, the delivery of a commitment to issue a policy of lender's title insurance as described in clause (xii) of Schedule I hereof in lieu of the delivery of the actual policy of lender's title insurance shall not be considered a Document Defect or Breach with respect to any Mortgage File if such actual policy of insurance is delivered to Purchaser pursuant to this Agreement are in full force and effect, without material default by any party and without any right of set-off except as disclosed in writing at the time of such deliveryTrustee or a Custodian on its behalf not later than the 90th day following the Closing Date.
(d) There is no master lease In connection with any repurchase or substitution of one or more Mortgage Loans contemplated hereby, upon receipt of a certificate from a Servicing Officer certifying as to the receipt of the Property Purchase Price or Substitution Shortfall Amount(s), as applicable, in the Certificate Account, and the delivery of the Mortgage File(s) and the Servicing File(s) for the related Qualified Substitute Mortgage Loan(s) to any affiliate of the Custodian and the Master Servicer, respectively, if applicable (i) the Trustee shall execute and deliver such endorsements and assignments as are provided to it by the Master Servicer, in each case without recourse, representation or warranty, as shall be necessary to vest in the Seller, the legal and beneficial ownership of each repurchased Mortgage Loan or if such master lease existssubstituted Mortgage Loan, Seller as applicable, and (ii) the Trustee, the Custodian, the Master Servicer and the Special Servicer shall cause such master lease each tender to be terminated at Closing without Purchaser paying any termination fee. The Rent Roll attached hereto as Exhibit B is truethe Seller, correct and complete in upon delivery to each of them of a receipt executed by the Seller, all material respects as portions of the date set forth on the Rent Roll. As of the Closing, the Rent Roll delivered at the Closing will be true, correct and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default by any party and without any right of setoff, except as expressly provided by the terms of such Leases or as disclosed on the Rent Roll attached hereto. The copies of the Leases Mortgage File and other agreements with the tenants under the Leases (the “Tenants”) delivered documents pertaining to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating to the Real Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real PropertyMortgage Loan possessed by it.
(e) Exhibit J attached hereto is a true and complete schedule of all of the Contracts (as hereinafter defined in Section 7), true, complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy of the management agreement currently in effect with respect to the Property. To Seller’s actual knowledge, the Contracts are in full force and effect, without material default by any party and without any claims made for the right of setoff, except as expressly provided by the terms of such Contracts or as disclosed to Purchaser in writing at the time of such delivery. The Contracts constitute the entire agreements with such vendors relating to the Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excluding, however, the Leases and Permitted Encumbrances) affecting the Property which will survive the Closing.
(f) At the Closing, there will be no outstanding contracts made by Seller for the construction or repair of any improvements to the Improvements which have not been fully paid for, and Seller shall cause to be discharged all mechanics’ or materialmen’s liens arising from any labor or materials furnished to the Improvements prior to the Closing.
(g) Except as set forth in Exhibit K attached hereto, there are no pending or, to Seller’s actual knowledge (without any duty of inquiry or investigation), threatened legal proceedings or actions of any kind or character affecting the Property or Seller’s interest therein, including, without limitation, condemnation proceedings.
(h) Seller has not received any actual written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or the Property relating in any way to a Release or compliance with Environmental Laws. For purposes of this Agreement, the phrase “Environmental Laws” shall mean any federal, state or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materials, or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 00
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (First Union Commercial Mortgage Securities Inc)
Representations, Warranties and Covenants of Seller. Seller (a) each of the CWCapital Parties hereby represents, represents and warrants to and covenants to Purchaser that with the following matters are true and correct Purchaser, as of the execution of this Agreement and will also be true and correct as of the Closingdate hereof, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx Xxxxxxxxxthat:
(ai) Seller (A) CWCapital is a statutory trust limited liability company duly formed and organized, validly existing and in good standing under the laws of the State of Massachusetts and (B) CWCapital Securities I and CWCapital Securities VI are each a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware. , are duly qualified as foreign organizations in good standing in all jurisdictions to the extent such qualification is necessary to hold and sell the Mortgage Loans or otherwise comply with its obligations under this Agreement, except where the failure to be so qualified would not have a material adverse effect on their ability to perform their obligations hereunder, and possess all requisite authority and power to carry on their business as currently conducted by it and to execute, deliver and comply with their obligations under the terms of this Agreement.
(ii) This Agreement has been, been duly and all the documents executed by Seller which are to be delivered to Purchaser at the Closing will be, duly validly authorized, executed and delivered by Seller each of the CWCapital Parties and, assuming due authorization, execution and will be delivery hereof by the Purchaser, constitutes a legal, valid and binding obligations obligation of Seller each of the CWCapital Parties, enforceable against Seller each of the CWCapital Parties in accordance with their respective terms (its terms, except to the extent that as such enforcement may be limited by applicable (A) bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws affecting the enforcement of creditors' rights in general, and other (B) general equity principles relating to (regardless of whether such enforcement is considered in a proceeding in equity or limiting at law).
(iii) The execution and delivery of this Agreement by each of the right CWCapital Parties' and the CWCapital Parties' performance and compliance with the terms of contracting parties generally), will be sufficient to convey title (if they purport to do so) and this Agreement will not (A) violate each of the CWCapital Parties' organizational documents, (B) violate any provisions law or regulation or any administrative decree or order to which the CWCapital Parties are subject or (C) constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material contract, agreement or other instrument to which Seller is the CWCapital Parties are a party or to by which the Property CWCapital Parties are bound.
(iv) Each of the CWCapital Parties are not in default with respect to any order or Seller is subject decree of any court or bound. Subject any order, regulation or demand of any federal, state, municipal or other governmental agency or body, which default might have consequences that would, in the CWCapital Parties' reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the CWCapital Parties or their properties or have consequences that would, in each of the CWCapital Parties' reasonable and good faith judgment, materially and adversely affect its performance hereunder.
(v) Each of the CWCapital Parties' are not a party to the satisfaction of Section 8(a)(i) below, no consent, waiver or approval bound by any agreement or instrument or subject to any organizational document or any other corporate restriction or any judgment, order, writ, injunction, decree, law or regulation that would, in the CWCapital Parties' reasonable and good faith judgment, materially and adversely affect the ability of each of the CWCapital Parties to perform its obligations under this Agreement or that requires the consent of any third party is required in connection with person to the execution and delivery by Seller of this Agreement by the CWCapital Parties or the performance by Seller the CWCapital Parties of the their obligations to be performed by Seller under this Agreement.
(vi) Except for the recordation and/or filing of assignments and other transfer documents with respect to the Mortgage Loans, as contemplated by Section 2(d), no consent, approval, authorization or order of, registration or filing with, or notice to, any court or governmental agency or body, is required for the execution, delivery and performance by each of the CWCapital Parties of or compliance by the CWCapital Parties' with this Agreement or the consummation of the transactions contemplated by this Agreement; and no bulk sale law applies to such transactions.
(vii) No litigation is pending or, to the best of the CWCapital Parties' knowledge, threatened against any of the CWCapital Parties that would, in the CWCapital Parties' good faith and reasonable judgment, prohibit its entering into this Agreement or materially and adversely affect the performance by the CWCapital Parties of their obligations under this Agreement.
(viii) The Seller intends to treat the transfer of the Mortgage Loans to the Purchaser as a sale for accounting and tax purposes. In connection with the foregoing, the Seller shall cause all of its records to reflect such transfer as a sale (as opposed to a secured loan). The consideration received by the Seller upon the sale of the Mortgage Loans to the Purchaser will constitute at least reasonably equivalent value and fair consideration for the Mortgage Loans. The Seller will be solvent at all relevant times prior to, and will not be rendered insolvent by, the sale of the Mortgage Loans to the Purchaser. The Seller is not selling the Mortgage Loans to the Purchaser with any intent to hinder, delay or defraud any of the creditors of the Seller. After giving effect to its transfer of the Mortgage Loans to the Purchaser, as provided herein, the value of the Seller's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Seller's debts and obligations, including contingent and unliquidated debts and obligations of the Seller, and the Seller will not be left with unreasonably small assets or capital with which to engage in and conduct its business. The Mortgage Loans do not constitute all or substantially all of the assets of the Seller. The Seller does not intend to, and does not believe that it will, incur debts or obligations beyond its ability to pay such debts and obligations as they mature.
(ix) No proceedings looking toward liquidation, dissolution or bankruptcy of the Seller are pending or contemplated.
(b) Except The CWCapital Parties hereby make, for the benefit of the Purchaser, with respect to each Mortgage Loan, as of the Closing Date or as of such other date expressly set forth therein, each of the representations and warranties set forth on Exhibit M B attached hereto, Seller has not received from any governmental authority written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any violation of any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable to the Property, or any part thereof, that will not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change to the zoning classification or any proceedings to widen or realign any streets or highways adjacent to the Property or of any condemnation proceedings.
(c) To Seller’s actual knowledge, (i) the operating statements, income and expense reports and all other contracts or documents required to be delivered to Purchaser pursuant to this Agreement are true, correct and complete copies; and (ii) all contracts or documents required to be delivered to Purchaser pursuant to this Agreement are in full force and effect, without material default by any party and without any right of set-off except as disclosed in writing at the time of such delivery.
(d) There is no master lease of the Property to any affiliate of Seller, or if such master lease exists, Seller shall cause such master lease to be terminated at Closing without Purchaser paying any termination fee. The Rent Roll attached hereto as Exhibit B is true, correct and complete in all material respects as of the date otherwise set forth on the Rent Roll. As of the Closing, the Rent Roll delivered at the Closing will be true, correct and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default by any party and without any right of setoff, except as expressly provided by the terms of such Leases or as disclosed on the Rent Roll Exhibit C attached hereto. The copies of the Leases and other agreements with the tenants under the Leases (the “Tenants”) delivered to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating to the Real Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real Property.
(e) Exhibit J attached hereto is a true and complete schedule of all of the Contracts (as hereinafter defined in Section 7), true, complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy of the management agreement currently in effect with respect to the Property. To Seller’s actual knowledge, the Contracts are in full force and effect, without material default by any party and without any claims made for the right of setoff, except as expressly provided by the terms of such Contracts or as disclosed to Purchaser in writing at the time of such delivery. The Contracts constitute the entire agreements with such vendors relating to the Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excluding, however, the Leases and Permitted Encumbrances) affecting the Property which will survive the Closing.
(f) At the Closing, there will be no outstanding contracts made by Seller for the construction or repair of any improvements to the Improvements which have not been fully paid for, and Seller shall cause to be discharged all mechanics’ or materialmen’s liens arising from any labor or materials furnished to the Improvements prior to the Closing.
(g) Except as set forth in Exhibit K attached hereto, there are no pending or, to Seller’s actual knowledge (without any duty of inquiry or investigation), threatened legal proceedings or actions of any kind or character affecting the Property or Seller’s interest therein, including, without limitation, condemnation proceedings.
(h) Seller has not received any actual written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or the Property relating in any way to a Release or compliance with Environmental Laws. For purposes of this Agreement, the phrase “Environmental Laws” shall mean any federal, state or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materials, or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 00
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (COBALT CMBS Commercial Mortgage Trust 2007-C3)
Representations, Warranties and Covenants of Seller. (a) The Seller hereby represents, represents and warrants to and covenants to Purchaser that with the following matters are true and correct Purchaser, as of the execution of this Agreement and will also be true and correct as of the Closingdate hereof, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx Xxxxxxxxxthat:
(ai) The Seller is a statutory trust corporation duly formed and organized, validly existing and in good standing under the laws of the State of Delaware. Delaware and the Seller has taken all necessary corporate action to authorize the execution, delivery and performance of this Agreement by it, and has the power and authority to execute, deliver and perform this Agreement and all transactions contemplated hereby.
(ii) This Agreement has been, been duly and all the documents executed by Seller which are to be delivered to Purchaser at the Closing will be, duly validly authorized, executed and delivered by Seller the Seller, all requisite action by the Seller's directors and will be legalofficers has been taken in connection therewith, valid and (assuming the due authorization, execution and delivery hereof by the Purchaser) this Agreement constitutes the valid, legal and binding obligations agreement of Seller the Seller, enforceable against the Seller in accordance with their respective terms (its terms, except to the extent that as such enforcement may be limited by applicable (A) laws relating to bankruptcy, insolvency, moratorium and fraudulent transfer, reorganization, receivership or moratorium, (B) other principles laws relating to or limiting affecting the right rights of contracting parties creditors generally, or (C) general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law), will be sufficient to convey title .
(if they purport to do soiii) The execution and delivery of this Agreement by the Seller and the Seller's performance and compliance with the terms of this Agreement will not (A) violate the Seller's certificate of incorporation or bylaws, (B) violate any provisions law or regulation or any administrative decree or order to which it is subject or (C) constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material contract, agreement or other instrument to which the Seller is a party or to by which the Property or Seller is bound, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or materially and adversely affect its performance hereunder.
(iv) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or other governmental agency or body, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or materially and adversely affect its performance hereunder.
(v) The Seller is not a party to or bound by any agreement or instrument or subject to any certificate of incorporation, bylaws or bound. Subject any other corporate restriction or any judgment, order, writ, injunction, decree, law or regulation that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the ability of the Seller to perform its obligations under this Agreement or that requires the consent of any third person to the satisfaction of Section 8(a)(i) below, no consent, waiver or approval by any third party is required in connection with the execution and delivery by Seller of this Agreement or the performance by the Seller of its obligations under this Agreement (except to the extent such consent has been obtained).
(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 or the consummation of the transactions contemplated by this Agreement except as have previously been obtained, and no bulk sale law applies to such transactions.
(vii) None of the sale of the Mortgage Loans by the Seller, the transfer of the Mortgage Loans to the Trustee, and the execution, delivery or performance of this Agreement by the Seller, results or will result in the creation or imposition of any lien on any of the Seller's assets or property that would have a material adverse effect upon the Seller's ability to perform its duties and obligations under this Agreement or materially impair the ability of the Purchaser to be performed realize on the Mortgage Loans.
(viii) There is no action, suit, proceeding or investigation pending or to the knowledge of the Seller, threatened against the Seller in any court or by or before any other governmental agency or instrumentality which would, in the Seller's good faith and reasonable judgment, prohibit its entering into this Agreement or materially and adversely affect the validity of this Agreement or the performance by the Seller of its obligations under this Agreement.
(ix) Under generally accepted accounting principles ("GAAP") and for federal income tax purposes, the Seller will report the transfer of the Mortgage Loans to the Purchaser as a sale of the Mortgage Loans to the Purchaser in exchange for consideration consisting of a cash amount equal to the Purchase Consideration. The consideration received by the Seller upon the sale of the Mortgage Loans to the Purchaser will constitute at least reasonably equivalent value and fair consideration for the Mortgage Loans. The Seller will be solvent at all relevant times prior to, and will not be rendered insolvent by, the sale of the Mortgage Loans to the Purchaser. The Seller is not selling the Mortgage Loans to the Purchaser with any intent to hinder, delay or defraud any of the creditors of the Seller.
(x) The Prospectus Supplement contains all the information that is required to be provided in respect of the Seller (that arise from its role as "sponsor" (within the meaning of Regulation AB)), the Mortgage Loans, the related Mortgagors and the related Mortgaged Properties pursuant to Regulation AB.
(b) Except The Seller hereby makes the representations and warranties contained in Schedule I hereto for the benefit of the Purchaser and the Trustee for the benefit of the Certificateholders as of the Closing Date (unless a different date is specified therein), with respect to (and solely with respect to) each Mortgage Loan (other than the 1995-C2 Mortgage Loans (as defined below), subject, however, to the exceptions set forth on Exhibit M attached heretoAnnex A to Schedule I of this Agreement. The Seller hereby makes the representations and warranties contained in Schedule II hereto for the benefit of the Purchaser and the Trustee for the benefit of the Certificateholders as of the Closing Date (unless a different date is specified therein), with respect to (and solely with respect to) each Mortgage Loan (such Mortgage Loans, collectively, the "1995-C2 Mortgage Loans") that was acquired by the Seller has not received from any governmental authority written noticein connection with the termination of the trust for the series of mortgage-pass through certificates captioned "Xxxxxxx Xxxxx Mortgage Investors, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any violation of any zoningInc., buildingMortgage Pass-Through Certificates, fire or health code or any other statuteSeries 1995-C2", ordinancesubject, rule or regulation applicable however, to the Property, or any part thereof, that will not have been corrected prior exceptions set forth on Annex A to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change to the zoning classification or any proceedings to widen or realign any streets or highways adjacent to the Property or Schedule II of any condemnation proceedingsthis Agreement.
(c) To Seller’s actual knowledgeIf the Seller discovers or receives written notice of a Document Defect or a Breach relating to a Mortgage Loan pursuant to Section 2.03(a) of the Pooling and Servicing Agreement, then the Seller shall, not later than 90 days from such discovery or receipt of such notice (or, in the case of a Document Defect or Breach relating to a Mortgage Loan not being a "qualified mortgage" within the meaning of the REMIC Provisions (a "Qualified Mortgage"), not later than 90 days from any party to the Pooling and Servicing Agreement discovering such Document Defect or Breach, provided the Seller receives such notice in a timely manner), if such Document Defect or Breach materially and adversely affects the value of the related Mortgage Loan or the interests of the Certificateholders therein, cure such Document Defect or Breach, as the case may be, in all material respects, which shall include payment of losses and any Additional Trust Fund Expenses associated therewith or, if such Document Defect or Breach (other than omissions due solely to a document not having been returned by the related recording office) cannot be cured within such 90-day period, (i) repurchase the operating statementsaffected Mortgage Loan (which, income for the purposes of this clause (i), shall include an REO Loan) at the applicable Purchase Price (as defined in the Pooling and expense reports Servicing Agreement) not later than the end of such 90-day period or (ii) substitute a Qualified Substitute Mortgage Loan for such affected Mortgage Loan (which, for purposes of this clause (ii), shall include an REO Loan) not later than the end of such 90-day period (and all other contracts in no event later than the second anniversary of the Closing Date) and pay the Master Servicer for deposit into the Collection Account any Substitution Shortfall Amount in connection therewith; provided, however, that, unless the Document Defect or documents required Breach would cause the Mortgage Loan not to be a Qualified Mortgage, if such Document Defect or Breach is capable of being cured but not within such 90-day period and the Seller has commenced and is diligently proceeding with the cure of such Document Defect or Breach within such 90-day period, the Seller shall have an additional 90 days to complete such cure (or, failing such cure, to repurchase or substitute the related Mortgage Loan (which, for purposes of such repurchase or substitution, shall include an REO Loan)); and provided, further, that with respect to such additional 90-day period, the Seller shall have delivered an officer's certificate to Purchaser pursuant the Trustee setting forth the reason(s) such Document Defect or Breach is not capable of being cured within the initial 90-day period and what actions the Seller is pursuing in connection with the cure thereof and stating that the Seller anticipates that such Document Defect or Breach will be cured within the additional 90-day period; and provided, further, that no Document Defect (other than with respect to this Agreement the Specially Designated Mortgage Loan Documents) shall be considered to materially and adversely affect the interests of the Certificateholders or the value of the related Mortgage Loan unless the document with respect to which the Document Defect exists is required in connection with an imminent enforcement of the mortgagee's rights or remedies under the related Mortgage Loan, defending any claim asserted by any Mortgagor or third party with respect to the Mortgage Loan, establishing the validity or priority of any lien or any collateral securing the Mortgage Loan or for any immediate servicing obligations.
(1) the weighted average debt service coverage ratio for all the remaining Crossed Loans for the four calendar quarters immediately preceding such repurchase or substitution is not less than the weighted average debt service coverage ratio for all such Crossed Loans, including the affected Crossed Loan, for the four calendar quarters immediately preceding such repurchase or substitution, and (2) the weighted average loan to-value ratio for the remaining Crossed Loans, determined at the time of repurchase or substitution, based upon an appraisal obtained by the Special Servicer at the expense of the Seller shall not be greater than the weighted average loan-to-value ratio for all such Crossed Loans, including the affected Crossed Loan determined at the time of repurchase or substitution, based upon an appraisal obtained by the Special Servicer at the expense of the Seller; provided, that if such debt service coverage and loan-to-value criteria are truesatisfied, correct any other Crossed Loan (that is not the Crossed Loan directly affected by the subject Document Defect or Breach), shall be released from its cross-collateralization and complete copiescross-default provision so long as such Crossed Loan (that is not the Crossed Loan directly affected by the subject Document Defect or Breach) is held in the Trust Fund; and provided, further, that the repurchase or replacement of less than all such Crossed Loans and the release of any Crossed Loan from a cross-collateralization and cross-default provision shall be further subject to (i) the delivery by the Seller to the Trustee, at the expense of the Seller, of an Opinion of Counsel to the effect that such release would not cause either of REMIC I or REMIC II to fail to qualify as a REMIC under the Code or result in the imposition of any tax on "prohibited transactions" or "contributions" after the Startup Day under the REMIC Provisions and (ii) all contracts or documents required to be delivered to Purchaser pursuant to this Agreement are in full force and effect, without material default by any party and without any right of set-off except as disclosed in writing at the time of such delivery.
(d) There is no master lease consent of the Property to any affiliate of Seller, or Controlling Class Representative (if such master lease exists, Seller shall cause such master lease to be terminated at Closing without Purchaser paying any termination fee. The Rent Roll attached hereto as Exhibit B one is true, correct and complete in all material respects as of the date set forth on the Rent Roll. As of the Closing, the Rent Roll delivered at the Closing will be true, correct and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default by any party and without any right of setoff, except as expressly provided by the terms of such Leases or as disclosed on the Rent Roll attached hereto. The copies of the Leases and other agreements with the tenants under the Leases (the “Tenants”) delivered to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating to the Real Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real Property.
(e) Exhibit J attached hereto is a true and complete schedule of all of the Contracts (as hereinafter defined in Section 7), true, complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy of the management agreement currently in effect with respect to the Property. To Seller’s actual knowledge, the Contracts are in full force and effect, without material default by any party and without any claims made for the right of setoff, except as expressly provided by the terms of such Contracts or as disclosed to Purchaser in writing at the time of such delivery. The Contracts constitute the entire agreements with such vendors relating to the Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excluding, however, the Leases and Permitted Encumbrances) affecting the Property which will survive the Closing.
(f) At the Closing, there will be no outstanding contracts made by Seller for the construction or repair of any improvements to the Improvements which have not been fully paid for, and Seller shall cause to be discharged all mechanics’ or materialmen’s liens arising from any labor or materials furnished to the Improvements prior to the Closing.
(g) Except as set forth in Exhibit K attached hereto, there are no pending or, to Seller’s actual knowledge (without any duty of inquiry or investigation), threatened legal proceedings or actions of any kind or character affecting the Property or Seller’s interest therein, including, without limitation, condemnation proceedings.
(h) Seller has not received any actual written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or the Property relating in any way to a Release or compliance with Environmental Laws. For purposes of this Agreement, the phrase “Environmental Laws” shall mean any federal, state or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materials, or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 00then
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (MLCFC Commercial Mortgage Trust Series 2006-1)
Representations, Warranties and Covenants of Seller. (a) The Seller hereby represents, represents and warrants to and covenants to Purchaser that with the following matters are true and correct Purchaser, as of the execution of this Agreement and will also be true and correct as of the Closingdate hereof, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx Xxxxxxxxxthat:
(ai) The Seller is a statutory trust corporation duly formed and organized, validly existing and in good standing under the laws of the State of Delaware. Delaware and the Seller has taken all necessary corporate action to authorize the execution, delivery and performance of this Agreement by it, and has the power and authority to execute, deliver and perform this Agreement and all transactions contemplated hereby.
(ii) This Agreement has been, been duly and all the documents executed by Seller which are to be delivered to Purchaser at the Closing will be, duly validly authorized, executed and delivered by Seller the Seller, all requisite action by the Seller's directors and will be legalofficers has been taken in connection therewith, valid and (assuming the due authorization, execution and delivery hereof by the Purchaser) this Agreement constitutes the valid, legal and binding obligations agreement of Seller the Seller, enforceable against the Seller in accordance with their respective terms (its terms, except to the extent that as such enforcement may be limited by applicable (A) laws relating to bankruptcy, insolvency, moratorium and fraudulent transfer, reorganization, receivership or moratorium, (B) other principles laws relating to or limiting affecting the right rights of contracting parties creditors generally, or (C) general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law), will be sufficient to convey title .
(if they purport to do soiii) The execution and delivery of this Agreement by the Seller and the Seller's performance and compliance with the terms of this Agreement will not (A) violate the Seller's certificate of incorporation or bylaws, (B) violate any provisions law or regulation or any administrative decree or order to which it is subject or (C) constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material contract, agreement or other instrument to which the Seller is a party or to by which the Property or Seller is bound, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or materially and adversely affect its performance hereunder.
(iv) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or other governmental agency or body, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or materially and adversely affect its performance hereunder.
(v) The Seller is not a party to or bound by any agreement or instrument or subject to any certificate of incorporation, bylaws or bound. Subject any other corporate restriction or any judgment, order, writ, injunction, decree, law or regulation that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the ability of the Seller to perform its obligations under this Agreement or that requires the consent of any third person to the satisfaction of Section 8(a)(i) below, no consent, waiver or approval by any third party is required in connection with the execution and delivery by Seller of this Agreement or the performance by the Seller of its obligations under this Agreement (except to the extent such consent has been obtained).
(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 or the consummation of the transactions contemplated by this Agreement except as have previously been obtained, and no bulk sale law applies to such transactions.
(vii) None of the sale of the Mortgage Loans by the Seller, the transfer of the Mortgage Loans to the Trustee, and the execution, delivery or performance of this Agreement by the Seller, results or will result in the creation or imposition of any lien on any of the Seller's assets or property that would have a material adverse effect upon the Seller's ability to perform its duties and obligations under this Agreement or materially impair the ability of the Purchaser to be performed realize on the Mortgage Loans.
(viii) There is no action, suit, proceeding or investigation pending or to the knowledge of the Seller, threatened against the Seller in any court or by or before any other governmental agency or instrumentality which would, in the Seller's good faith and reasonable judgment, prohibit its entering into this Agreement or materially and adversely affect the validity of this Agreement or the performance by the Seller of its obligations under this Agreement.
(ix) Under generally accepted accounting principles ("GAAP") and for federal income tax purposes, the Seller will report the transfer of the Mortgage Loans to the Purchaser as a sale of the Mortgage Loans to the Purchaser in exchange for consideration consisting of a cash amount equal to the Purchase Consideration. The consideration received by the Seller upon the sale of the Mortgage Loans to the Purchaser will constitute at least reasonably equivalent value and fair consideration for the Mortgage Loans. The Seller will be solvent at all relevant times prior to, and will not be rendered insolvent by, the sale of the Mortgage Loans to the Purchaser. The Seller is not selling the Mortgage Loans to the Purchaser with any intent to hinder, delay or defraud any of the creditors of the Seller.
(b) Except The Seller hereby makes the representations and warranties contained in Schedule I hereto for the benefit of the Purchaser and the Trustee for the benefit of the Certificateholders as of the Closing Date (unless a different date is specified therein), with respect to (and solely with respect to) each Mortgage Loan, subject, however, to the exceptions set forth on Exhibit M attached hereto, Seller has not received from any governmental authority written notice, and Seller has no actual knowledge (without any duty Annex A to Schedule I of inquiry or investigation) of any violation of any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable to the Property, or any part thereof, that will not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change to the zoning classification or any proceedings to widen or realign any streets or highways adjacent to the Property or of any condemnation proceedingsthis Agreement.
(c) To Seller’s actual knowledgeIf the Seller receives written notice of a Document Defect or a Breach relating to a Mortgage Loan pursuant to Section 2.03(a) of the Pooling and Servicing Agreement, then the Seller shall, not later than 90 days from receipt of such notice (or, in the case of a Document Defect or Breach relating to a Mortgage Loan not being a "qualified mortgage" within the meaning of the REMIC Provisions (a "Qualified Mortgage"), not later than 90 days from any party to the Pooling and Servicing Agreement discovering such Document Defect or Breach, provided the Seller receives such notice in a timely manner), if such Document Defect or Breach materially and adversely affects the value of the related Mortgage Loan or the interests of the Certificateholders therein, cure such Document Defect or Breach, as the case may be, in all material respects, which shall include payment of losses and any Additional Trust Fund Expenses associated therewith or, if such Document Defect or Breach (other than omissions due solely to a document not having been returned by the related recording office) cannot be cured within such 90-day period, (i) repurchase the operating statementsaffected Mortgage Loan (which, income for the purposes of this clause (i), shall include an REO Loan) at the applicable Purchase Price (as defined in the Pooling and expense reports and all other contracts Servicing Agreement) not later than the end of such 90-day period or documents required to be delivered to Purchaser pursuant to this Agreement are true, correct and complete copies; and (ii) all contracts substitute a Qualified Substitute Mortgage Loan for such affected Mortgage Loan (which, for purposes of this clause (ii), shall include an REO Loan) not later than the end of such 90-day period (and in no event later than the second anniversary of the Closing Date) and pay the Master Servicer for deposit into the Collection Account any Substitution Shortfall Amount in connection therewith; provided, however, that, unless the Document Defect or documents required Breach would cause the Mortgage Loan not to be a Qualified Mortgage, if such Document Defect or Breach is capable of being cured but not within such 90-day period and the Seller has commenced and is diligently proceeding with the cure of such Document Defect or Breach within such 90-day period, the Seller shall have an additional 90 days to complete such cure (or, failing such cure, to repurchase or substitute the related Mortgage Loan (which, for purposes of such repurchase or substitution, shall include an REO Loan)); and provided, further, that with respect to such additional 90-day period, the Seller shall have delivered an officer's certificate to Purchaser pursuant to this Agreement are the Trustee setting forth the reason(s) such Document Defect or Breach is not capable of being cured within the initial 90-day period and what actions the Seller is pursuing in full force connection with the cure thereof and effectstating that the Seller anticipates that such Document Defect or Breach will be cured within the additional 90-day period.
(1) the weighted average debt service coverage ratio for all the remaining Crossed Loans for the four calendar quarters immediately preceding such repurchase or substitution is not less than the weighted average debt service coverage ratio for all such Crossed Loans, without material default by any party including the affected Crossed Loan, for the four calendar quarters immediately preceding such repurchase or substitution, and without any right of set(2) the weighted average loan to-off except as disclosed in writing value ratio for the remaining Crossed Loans determined at the time of such delivery.
(d) There is no master lease repurchase or substitution based upon an appraisal obtained by the Special Servicer at the expense of the Property to any affiliate of Seller, or if such master lease exists, Seller shall cause not be greater than the weighted average loan-to-value ratio for all such master lease to be terminated at Closing without Purchaser paying any termination fee. The Rent Roll attached hereto as Exhibit B is trueCrossed Loans, correct and complete in all material respects as of including the date set forth on the Rent Roll. As of the Closing, the Rent Roll delivered at the Closing will be true, correct and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default by any party and without any right of setoff, except as expressly provided by the terms of such Leases or as disclosed on the Rent Roll attached hereto. The copies of the Leases and other agreements with the tenants under the Leases (the “Tenants”) delivered to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating to the Real Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real Property.
(e) Exhibit J attached hereto is a true and complete schedule of all of the Contracts (as hereinafter defined in Section 7), true, complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy of the management agreement currently in effect with respect to the Property. To Seller’s actual knowledge, the Contracts are in full force and effect, without material default by any party and without any claims made for the right of setoff, except as expressly provided by the terms of such Contracts or as disclosed to Purchaser in writing affected Crossed Loan determined at the time of repurchase or substitution based upon an appraisal obtained by the Special Servicer at the expense of the Seller; provided, that if such deliverydebt service coverage and loan-to-value criteria are satisfied, any other Crossed Loan (that is not the Crossed Loan directly affected by the subject Document Defect or Breach), shall be released from its cross-collateralization and cross-default provision so long as such Crossed Loan (that is not the Crossed Loan directly affected by the subject Document Defect or Breach) is held in the Trust Fund; and provided, further, that the repurchase or replacement of less than all such Crossed Loans and the release of any Crossed Loan from a cross-collateralization and cross-default provision shall be further subject to the delivery by the Seller to the Trustee, at the expense of the Seller, of an Opinion of Counsel to the effect that such release would not cause either of REMIC I or REMIC II to fail to qualify as a REMIC under the Code or result in the imposition of any tax on "prohibited transactions" or "contributions" after the Startup Day under the REMIC Provisions. The Contracts constitute In the entire agreements with event that one or more of such vendors other Crossed Loans satisfy the aforementioned criteria, the Seller may elect either to repurchase or substitute for only the affected Crossed Loan as to which the related Document Defect or Breach exists or to repurchase or substitute for all of the Crossed Loans in the related Crossed Loan Group. All documentation relating to the Propertytermination of the cross-collateralization provisions of a Crossed Loan being repurchased shall be prepared at the expense of the Seller and, have not been materially amendedwhere required, modified with the consent of the related borrower. For a period of two years from the Closing Date, so long as there remains any Mortgage File relating to a Mortgage Loan as to which there is any uncured Document Defect or supplementedBreach known to the Seller, except for the Seller shall provide, once every ninety days, the officer's certificate to the Trustee described above as to the reason(s) such amendments, modifications Document Defect or Breach remains uncured and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excludingthe actions being taken to pursue cure; provided, however, that, without limiting the Leases effect of the foregoing provisions of this Section 3(c), if such Document Defect or Breach shall materially and Permitted Encumbrances) affecting adversely affect the Property which will survive value of such Mortgage Loan or the Closing.
interests of the holders of the Certificates therein (f) At the Closing, there will be no outstanding contracts made by Seller for the construction or repair of any improvements subject to the Improvements which have not been fully paid forlast proviso in the sole sentence of the preceding paragraph), and the Seller shall cause to be discharged in all mechanics’ cases on or materialmen’s liens arising from any labor or materials furnished to the Improvements prior to the Closing.
(g) Except second anniversary of the Closing Date either cause such Document Defect or Breach to be cured or repurchase or substitute for the affected Mortgage Loan. The delivery of a commitment to issue a policy of lender's title insurance as described in representation 8 set forth on Schedule I hereto in Exhibit K attached hereto, there are no pending or, lieu of the delivery of the actual policy of lender's title insurance shall not be considered a Document Defect or Breach with respect to Seller’s any Mortgage File if such actual knowledge (without any duty policy of inquiry insurance is delivered to the Trustee or investigation), threatened legal proceedings or actions of any kind or character affecting a Custodian on its behalf not later than the Property or Seller’s interest therein, including, without limitation, condemnation proceedings90th day following the Closing Date.
(h) Seller has not received any actual written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or the Property relating in any way to a Release or compliance with Environmental Laws. For purposes of this Agreement, the phrase “Environmental Laws” shall mean any federal, state or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materials, or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 00
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Merrill Lynch Mortgage Trust 2005-Cip1)
Representations, Warranties and Covenants of Seller. (a) The Seller hereby represents, represents and warrants to and covenants to Purchaser that with the following matters are true and correct Purchaser, as of the execution of this Agreement and will also be true and correct as of the Closingdate hereof, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx Xxxxxxxxxthat:
(ai) The Seller is a statutory trust corporation duly formed and organized, validly existing and in good standing under the laws of the State of Delaware. Delaware and the Seller has taken all necessary corporate action to authorize the execution, delivery and performance of this Agreement by it, and has the power and authority to execute, deliver and perform this Agreement and all transactions contemplated hereby.
(ii) This Agreement has been, been duly and all the documents executed by Seller which are to be delivered to Purchaser at the Closing will be, duly validly authorized, executed and delivered by Seller the Seller, all requisite action by the Seller's directors and will be legalofficers has been taken in connection therewith, valid and (assuming the due authorization, execution and delivery hereof by the Purchaser) this Agreement constitutes the valid, legal and binding obligations agreement of Seller the Seller, enforceable against the Seller in accordance with their respective terms (its terms, except to the extent that as such enforcement may be limited by applicable (A) laws relating to bankruptcy, insolvency, moratorium and fraudulent transfer, reorganization, receivership, conservatorship or moratorium, (B) other principles laws relating to or limiting affecting the right rights of contracting parties creditors generally, or (C) general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law), will be sufficient to convey title .
(if they purport to do soiii) The execution and delivery of this Agreement by the Seller and the Seller's performance and compliance with the terms of this Agreement will not (A) violate the Seller's certificate of incorporation or bylaws, (B) violate any provisions law or regulation or any administrative decree or order to which it is subject or (C) constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material contract, agreement or other instrument to which the Seller is a party or to by which the Property or Seller is subject or bound. Subject to , which default might have consequences that would, in the satisfaction of Section 8(a)(i) belowSeller's reasonable and good faith judgment, no consent, waiver or approval by any third party is required in connection with materially and adversely affect the execution and delivery by Seller of this Agreement or the performance by Seller of the obligations to be performed by Seller under this Agreement.
condition (b) Except as set forth on Exhibit M attached hereto, Seller has not received from any governmental authority written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any violation of any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable to the Property, or any part thereof, that will not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change to the zoning classification or any proceedings to widen or realign any streets or highways adjacent to the Property or of any condemnation proceedings.
(c) To Seller’s actual knowledge, (i) the operating statements, income and expense reports and all other contracts or documents required to be delivered to Purchaser pursuant to this Agreement are true, correct and complete copies; and (ii) all contracts or documents required to be delivered to Purchaser pursuant to this Agreement are in full force and effect, without material default by any party and without any right of set-off except as disclosed in writing at the time of such delivery.
(d) There is no master lease of the Property to any affiliate of Seller, or if such master lease exists, Seller shall cause such master lease to be terminated at Closing without Purchaser paying any termination fee. The Rent Roll attached hereto as Exhibit B is true, correct and complete in all material respects as of the date set forth on the Rent Roll. As of the Closing, the Rent Roll delivered at the Closing will be true, correct and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default by any party and without any right of setoff, except as expressly provided by the terms of such Leases or as disclosed on the Rent Roll attached hereto. The copies of the Leases and other agreements with the tenants under the Leases (the “Tenants”) delivered to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating to the Real Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real Property.
(e) Exhibit J attached hereto is a true and complete schedule of all of the Contracts (as hereinafter defined in Section 7), true, complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy of the management agreement currently in effect with respect to the Property. To Seller’s actual knowledge, the Contracts are in full force and effect, without material default by any party and without any claims made for the right of setoff, except as expressly provided by the terms of such Contracts or as disclosed to Purchaser in writing at the time of such delivery. The Contracts constitute the entire agreements with such vendors relating to the Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excluding, however, the Leases and Permitted Encumbrances) affecting the Property which will survive the Closing.
(f) At the Closing, there will be no outstanding contracts made by Seller for the construction or repair of any improvements to the Improvements which have not been fully paid for, and Seller shall cause to be discharged all mechanics’ or materialmen’s liens arising from any labor or materials furnished to the Improvements prior to the Closing.
(g) Except as set forth in Exhibit K attached hereto, there are no pending financial or, to Seller’s actual knowledge (without any duty of inquiry or investigation), threatened legal proceedings or actions of any kind or character affecting the Property or Seller’s interest therein, including, without limitation, condemnation proceedings.
(h) Seller has not received any actual written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or the Property relating in any way to a Release or compliance with Environmental Laws. For purposes of this Agreement, the phrase “Environmental Laws” shall mean any federal, state or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materials, or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 00
Appears in 1 contract
Representations, Warranties and Covenants of Seller. (a) The Seller hereby represents, represents and warrants to and covenants to Purchaser that with the following matters are true and correct Purchaser, as of the execution of this Agreement and will also be true and correct as of the Closingdate hereof, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx Xxxxxxxxxthat:
(ai) The Seller is a statutory trust corporation duly formed and organized, validly existing and in good standing under the laws of the State of Delaware. California and the Seller has taken all necessary corporate action to authorize the execution, delivery and performance of this Agreement by it, and has the power and authority to execute, deliver and perform this Agreement and all transactions contemplated hereby.
(ii) This Agreement has been, been duly and all the documents executed by Seller which are to be delivered to Purchaser at the Closing will be, duly validly authorized, executed and delivered by Seller the Seller, all requisite action by the Seller's directors and will be legalofficers has been taken in connection therewith, valid and (assuming the due authorization, execution and delivery hereof by the Purchaser) this Agreement constitutes the valid, legal and binding obligations agreement of Seller the Seller, enforceable against the Seller in accordance with their respective terms (its terms, except to the extent that as such enforcement may be limited by applicable (A) laws relating to bankruptcy, insolvency, moratorium and fraudulent transfer, reorganization, receivership or moratorium, (B) other principles laws relating to or limiting affecting the right rights of contracting parties creditors generally, or (C) general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law), will be sufficient to convey title .
(if they purport to do soiii) The execution and delivery of this Agreement by the Seller and the Seller's performance and compliance with the terms of this Agreement will not (A) violate the Seller's certificate of incorporation or bylaws, (B) violate any provisions law or regulation or any administrative decree or order to which it is subject or (C) constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material contract, agreement or other instrument to which the Seller is a party or to by which the Property or Seller is bound, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or materially and adversely affect its performance hereunder.
(iv) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or other governmental agency or body, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or materially and adversely affect its performance hereunder.
(v) The Seller is not a party to or bound by any agreement or instrument or subject to any certificate of incorporation, bylaws or bound. Subject any other corporate restriction or any judgment, order, writ, injunction, decree, law or regulation that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the ability of the Seller to perform its obligations under this Agreement or that requires the consent of any third person to the satisfaction of Section 8(a)(i) below, no consent, waiver or approval by any third party is required in connection with the execution and delivery by Seller of this Agreement or the performance by the Seller of its obligations under this Agreement (except to the extent such consent has been obtained).
(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 or the consummation of the transactions contemplated by this Agreement except as have previously been obtained, and no bulk sale law applies to such transactions.
(vii) None of the sale of the Mortgage Loans by the Seller, the transfer of the Mortgage Loans to the Trustee, and the execution, delivery or performance of this Agreement by the Seller, results or will result in the creation or imposition of any lien on any of the Seller's assets or property that would have a material adverse effect upon the Seller's ability to perform its duties and obligations under this Agreement or materially impair the ability of the Purchaser to be performed realize on the Mortgage Loans.
(viii) There is no action, suit, proceeding or investigation pending or to the knowledge of the Seller, threatened against the Seller in any court or by or before any other governmental agency or instrumentality which would, in the Seller's good faith and reasonable judgment, prohibit its entering into this Agreement or materially and adversely affect the validity of this Agreement or the performance by the Seller of its obligations under this Agreement.
(ix) Under generally accepted accounting principles ("GAAP") and for federal income tax purposes, the Seller will report the transfer of the Mortgage Loans to the Purchaser as a sale of the Mortgage Loans to the Purchaser in exchange for consideration consisting of a cash amount equal to the Purchase Consideration. The consideration received by the Seller upon the sale of the Mortgage Loans to the Purchaser will constitute at least reasonably equivalent value and fair consideration for the Mortgage Loans. The Seller will be solvent at all relevant times prior to, and will not be rendered insolvent by, the sale of the Mortgage Loans to the Purchaser. The Seller is not selling the Mortgage Loans to the Purchaser with any intent to hinder, delay or defraud any of the creditors of the Seller.
(x) The Prospectus Supplement contains all the information that is required to be provided in respect of the Seller (that arise from its role as "sponsor" (within the meaning of Regulation AB)), the Mortgage Loans, the related Mortgagors and the related Mortgaged Properties pursuant to Regulation AB.
(b) Except The Seller hereby makes the representations and warranties contained in Schedule I hereto for the benefit of the Purchaser and the Trustee for the benefit of the Certificateholders as of the Closing Date (unless a different date is specified therein), with respect to (and solely with respect to) each Mortgage Loan, subject, however, to the exceptions set forth on Exhibit M attached hereto, Seller has not received from any governmental authority written notice, and Seller has no actual knowledge (without any duty Annex A to Schedule I of inquiry or investigation) of any violation of any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable to the Property, or any part thereof, that will not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change to the zoning classification or any proceedings to widen or realign any streets or highways adjacent to the Property or of any condemnation proceedingsthis Agreement.
(c) To Seller’s actual knowledgeIf the Seller discovers or receives written notice of a Document Defect or a Breach relating to a Mortgage Loan pursuant to Section 2.03(a) of the Pooling and Servicing Agreement, then the Seller shall, not later than 90 days from such discovery or receipt of such notice (or, in the case of a Document Defect or Breach relating to a Mortgage Loan not being a "qualified mortgage" within the meaning of the REMIC Provisions (a "Qualified Mortgage"), not later than 90 days from any party to the Pooling and Servicing Agreement discovering such Document Defect or Breach, provided the Seller receives such notice in a timely manner), if such Document Defect or Breach materially and adversely affects the value of the related Mortgage Loan or the interests of the Certificateholders therein, cure such Document Defect or Breach, as the case may be, in all material respects, which shall include payment of losses and any Additional Trust Fund Expenses associated therewith or, if such Document Defect or Breach (other than omissions due solely to a document not having been returned by the related recording office) cannot be cured within such 90-day period, (i) repurchase the operating statementsaffected Mortgage Loan (which, income for the purposes of this clause (i), shall include an REO Loan) at the applicable Purchase Price (as defined in the Pooling and expense reports Servicing Agreement) not later than the end of such 90-day period or (ii) substitute a Qualified Substitute Mortgage Loan for such affected Mortgage Loan (which, for purposes of this clause (ii), shall include an REO Loan) not later than the end of such 90-day period (and all other contracts in no event later than the second anniversary of the Closing Date) and pay the Master Servicer for deposit into the Collection Account any Substitution Shortfall Amount in connection therewith; provided, however, that, unless the Document Defect or documents required Breach would cause the Mortgage Loan not to be a Qualified Mortgage, if such Document Defect or Breach is capable of being cured but not within such 90-day period and the Seller has commenced and is diligently proceeding with the cure of such Document Defect or Breach within such 90-day period, the Seller shall have an additional 90 days to complete such cure (or, failing such cure, to repurchase or substitute the related Mortgage Loan (which, for purposes of such repurchase or substitution, shall include an REO Loan)); and provided, further, that with respect to such additional 90-day period, the Seller shall have delivered an officer's certificate to Purchaser pursuant the Trustee setting forth the reason(s) such Document Defect or Breach is not capable of being cured within the initial 90-day period and what actions the Seller is pursuing in connection with the cure thereof and stating that the Seller anticipates that such Document Defect or Breach will be cured within the additional 90-day period; and provided, further, that no Document Defect (other than with respect to this Agreement the Specially Designated Mortgage Loan Documents) shall be considered to materially and adversely affect the interests of the Certificateholders or the value of the related Mortgage Loan unless the document with respect to which the Document Defect exists is required in connection with an imminent enforcement of the mortgagee's rights or remedies under the related Mortgage Loan, defending any claim asserted by any Mortgagor or third party with respect to the Mortgage Loan, establishing the validity or priority of any lien or any collateral securing the Mortgage Loan or for any immediate servicing obligations.
(1) the weighted average debt service coverage ratio for all the remaining Crossed Loans for the four calendar quarters immediately preceding such repurchase or substitution is not less than the weighted average debt service coverage ratio for all such Crossed Loans, including the affected Crossed Loan, for the four calendar quarters immediately preceding such repurchase or substitution, and (2) the weighted average loan to-value ratio for the remaining Crossed Loans, determined at the time of repurchase or substitution, based upon an appraisal obtained by the Special Servicer at the expense of the Seller shall not be greater than the weighted average loan-to-value ratio for all such Crossed Loans, including the affected Crossed Loan determined at the time of repurchase or substitution, based upon an appraisal obtained by the Special Servicer at the expense of the Seller; provided, that if such debt service coverage and loan-to-value criteria are truesatisfied, correct any other Crossed Loan (that is not the Crossed Loan directly affected by the subject Document Defect or Breach), shall be released from its cross-collateralization and complete copiescross-default provision so long as such Crossed Loan (that is not the Crossed Loan directly affected by the subject Document Defect or Breach) is held in the Trust Fund; and provided, further, that the repurchase or replacement of less than all such Crossed Loans and the release of any Crossed Loan from a cross-collateralization and cross-default provision shall be further subject to (i) the delivery by the Seller to the Trustee, at the expense of the Seller, of an Opinion of Counsel to the effect that such release would not cause either of REMIC I or REMIC II to fail to qualify as a REMIC under the Code or result in the imposition of any tax on "prohibited transactions" or "contributions" after the Startup Day under the REMIC Provisions and (ii) the consent of the Controlling Class Representative (if one is then acting), which consent shall not be unreasonably withheld or delayed. In the event that one or more of such other Crossed Loans satisfy the aforementioned criteria, the Seller may elect either to repurchase or substitute for only the affected Crossed Loan as to which the related Document Defect or Breach exists or to repurchase or substitute for all contracts of the Crossed Loans in the related Crossed Loan Group. All documentation relating to the termination of the cross-collateralization provisions of a Crossed Loan being repurchased shall be prepared at the expense of the Seller and, where required, with the consent of the related Mortgagor. For a period of two years from the Closing Date, so long as there remains any Mortgage File relating to a Mortgage Loan as to which there is any uncured Document Defect or documents required Breach known to the Seller, the Seller shall provide, once every ninety days, the officer's certificate to the Trustee described above as to the reason(s) such Document Defect or Breach remains uncured and as to the actions being taken to pursue cure; provided, however, that, without limiting the effect of the foregoing provisions of this Section 3(c), if such Document Defect or Breach shall materially and adversely affect the value of such Mortgage Loan or the interests of the holders of the Certificates therein (subject to the last proviso in the sole sentence of the preceding paragraph), the Seller shall in all cases on or prior to the second anniversary of the Closing Date either cause such Document Defect or Breach to be delivered to Purchaser pursuant to this Agreement are in full force and effect, without material default by any party and without any right of set-off except as disclosed in writing at cured or repurchase or substitute for the time of such delivery.
(d) There is no master lease of the Property to any affiliate of Seller, or if such master lease exists, Seller shall cause such master lease to be terminated at Closing without Purchaser paying any termination feeaffected Mortgage Loan. The Rent Roll attached hereto delivery of a commitment to issue a policy of lender's title insurance as Exhibit B is true, correct and complete described in all material respects as of the date representation 8 set forth on the Rent Roll. As Schedule I hereto in lieu of the Closingdelivery of the actual policy of lender's title insurance shall not be considered a Document Defect or Breach with respect to any Mortgage File if such actual policy of insurance is delivered to the Trustee or a Custodian on its behalf not later than the 180th day following the Closing Date. To the extent that the Seller is required to repurchase or substitute for a Crossed Loan hereunder in the manner prescribed above in this Section 3(c) while the Trustee continues to hold any other Crossed Loans in such Crossed Loan Group, the Rent Roll delivered at Seller and the Closing will be truePurchaser shall not enforce any remedies against the other's Primary Collateral (as defined below), correct and complete. The copies but each is permitted to exercise remedies against the Primary Collateral securing its respective Crossed Loan(s), so long as such exercise does not materially impair the ability of the Leases delivered other party to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default exercise its remedies against the Primary Collateral securing the Crossed Loan(s) held thereby. If the exercise by any one party and without any right of setoff, except as expressly provided by would materially impair the terms of such Leases or as disclosed on the Rent Roll attached hereto. The copies ability of the Leases and other agreements with the tenants under the Leases (the “Tenants”) delivered party to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating to the Real Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real Property.
(e) Exhibit J attached hereto is a true and complete schedule of all of the Contracts (as hereinafter defined in Section 7), true, complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy of the management agreement currently in effect exercise its remedies with respect to the PropertyPrimary Collateral securing the Crossed Loan(s) held by such party, then the Seller and the Purchaser shall forbear from exercising such remedies until the Mortgage Loan documents evidencing and securing the relevant Crossed Loans can be modified in a manner consistent with this Agreement to remove the threat of material impairment as a result of the exercise of remedies. To Seller’s actual knowledgeAny reserve or other cash collateral or letters of credit securing the Crossed Loans shall be allocated between such Crossed Loans in accordance with the Mortgage Loan documents, or, if the related Mortgage Loan documents do not so provide, then on a pro rata basis based upon their outstanding Stated Principal Balances. Notwithstanding the foregoing, if a Crossed Loan is modified to terminate the related cross-collateralization and/or cross-default provisions, the Contracts are in full force and effect, without material default by any party and without any claims made for the right of setoff, except as expressly provided by the terms of such Contracts or as disclosed to Purchaser in writing at the time of such delivery. The Contracts constitute the entire agreements with such vendors relating Seller shall furnish to the Property, have Trustee an Opinion of Counsel that such modification shall not been materially amended, modified or supplemented, except for such amendments, modifications and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excluding, however, the Leases and Permitted Encumbrances) affecting the Property which will survive the Closingcause an Adverse REMIC Event.
(f) At the Closing, there will be no outstanding contracts made by Seller for the construction or repair of any improvements to the Improvements which have not been fully paid for, and Seller shall cause to be discharged all mechanics’ or materialmen’s liens arising from any labor or materials furnished to the Improvements prior to the Closing.
(g) Except as set forth in Exhibit K attached hereto, there are no pending or, to Seller’s actual knowledge (without any duty of inquiry or investigation), threatened legal proceedings or actions of any kind or character affecting the Property or Seller’s interest therein, including, without limitation, condemnation proceedings.
(h) Seller has not received any actual written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or the Property relating in any way to a Release or compliance with Environmental Laws. For purposes of this Agreement, the phrase “Environmental Laws” shall mean any federal, state or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materials, or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 00
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (MLCFC Commercial Mortgage Trust Series 2006-1)
Representations, Warranties and Covenants of Seller. (a) The Seller hereby represents, represents and warrants to and covenants to Purchaser that with the following matters are true and correct Purchaser, as of the execution of this Agreement and will also be true and correct as of the Closingdate hereof, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx Xxxxxxxxxthat:
(ai) The Seller is a statutory trust duly formed national banking association organized and validly existing and in good standing under the laws of the State United States and possesses all requisite authority, power, licenses, permits and franchises to carry on its business as currently conducted by it and to execute, deliver and comply with its obligations under the terms of Delaware. this Agreement;
(ii) This Agreement has been, been duly and all the documents executed by Seller which are to be delivered to Purchaser at the Closing will be, duly validly authorized, executed and delivered by the Seller and, assuming due authorization, execution and will be delivery hereof by the Purchaser, constitutes a legal, valid and binding obligations obligation of Seller the Seller, enforceable against the Seller in accordance with their respective terms (its terms, except to the extent that as such enforcement may be limited by applicable bankruptcy, insolvency, reorganization, receivership, moratorium and other laws affecting the enforcement of creditors' rights in general, as they may be applied in the context of the insolvency of a national banking association, and by general equity principles relating to (regardless of whether such enforcement is considered in a proceeding in equity or limiting the right of contracting parties generallyat law), will be sufficient and by public policy considerations underlying the securities laws, to convey title (if they the extent that such public policy considerations limit the enforceability of the provisions of this Agreement which purport to do soprovide indemnification from liabilities under applicable securities laws;
(iii) The execution and delivery of this Agreement by the Seller and the Seller's performance and compliance with the terms of this Agreement will not (A) violate the Seller's articles of association or bylaws, (B) violate any provisions law or regulation or any administrative decree or order to which it is subject or (C) constitute a material default (or an event which, with notice or lapse of time, or both, would constitute a material default) under, or result in the breach of, any material contract, agreement or other instrument to which the Seller is a party or to by which the Property or Seller is bound;
(iv) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or other governmental agency or body, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or have consequences that would materially and adversely affect its performance hereunder;
(v) The Seller is not a party to or bound by any agreement or instrument or subject to any articles of association, bylaws or bound. Subject any other corporate restriction or any judgment, order, writ, injunction, decree, law or regulation that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the ability of the Seller to perform its obligations under this Agreement or that requires the consent of any third person to the satisfaction of Section 8(a)(i) below, no consent, waiver or approval by any third party is required in connection with the execution and delivery by Seller of this Agreement or the performance by the Seller of its obligations under this Agreement (except to the extent such consent has been obtained);
(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 or the consummation of the transactions contemplated by this Agreement except as have previously been obtained, and no bulk sale law applies to such transactions;
(vii) No litigation is pending or, to the Seller's knowledge, threatened against the Seller that would, in the Seller's good faith and reasonable judgment, prohibit its entering into this Agreement or materially and adversely affect the performance by the Seller of its obligations to be performed by Seller under this Agreement; and
(viii) Under generally accepted accounting principles ("GAAP") and for federal income tax purposes, the Seller will report the transfer of the Mortgage Loans to the Purchaser as a sale of the Mortgage Loans to the Purchaser in exchange for consideration consisting of a cash amount equal to the Purchase Price. The consideration received by the Seller upon the sale of the Mortgage Loans to the Purchaser will constitute at least reasonably equivalent value and fair consideration for the Mortgage Loans. The Seller will be solvent at all relevant times prior to, and will not be rendered insolvent by, the sale of the Mortgage Loans to the Purchaser. The Seller is not selling the Mortgage Loans to the Purchaser with any intent to hinder, delay or defraud any of the creditors of the Seller.
(b) Except The Seller hereby makes the representations and warranties contained in Schedule I, Schedule II and Schedule III hereto for the benefit of the Purchaser and the Trustee for the benefit of the Certificateholders as set forth on Exhibit M attached heretoof the Closing Date, Seller has not received from any governmental authority written notice, with respect to (and Seller has no actual knowledge (without any duty of inquiry or investigationsolely with respect to) of any violation of any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable to the Property, or any part thereof, that will not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change to the zoning classification or any proceedings to widen or realign any streets or highways adjacent to the Property or of any condemnation proceedingseach Mortgage Loan.
(c) To Seller’s actual knowledgeIf the Seller discovers or receives written notice of a Document Defect or a Breach pursuant to Section 2.03(a) of the Pooling and Servicing Agreement relating to a Mortgage Loan, then the Seller shall not later than 90 days from such discovery or receipt of such notice (or, in the case of a Document Defect or Breach relating to a Mortgage Loan not being a "qualified mortgage" within the meaning of the REMIC Provisions (a "Qualified Mortgage"), not later than 90 days from any party to the Pooling and Servicing Agreement discovering such Document Defect or Breach provided the Seller receives such notice in a timely manner), if such Document Defect or Breach shall materially and adversely affect the value of the related Mortgage Loan or the interest of the Certificateholders therein, cure such Document Defect or Breach, as the case may be, in all material respects, which shall include payment of losses and any Additional Trust Fund Expenses associated therewith or, if such Document Defect or Breach (other than omissions solely due to a document not having been returned by the related recording office) cannot be cured within such 90-day period, (i) repurchase the operating statements, income affected Mortgage Loan at the applicable Purchase Price (as defined in the Pooling and expense reports and all other contracts Servicing Agreement) not later than the end of such 90-day period or documents required to be delivered to Purchaser pursuant to this Agreement are true, correct and complete copies; and (ii) all contracts or documents required substitute a Qualified Substitute Mortgage Loan for such affected Mortgage Loan not later than the end of such 90-day period (and in no event later than the second anniversary of the Closing Date) and pay the Master Servicer for deposit into the Certificate Account, any Substitution Shortfall Amount in connection therewith; provided, however, that unless the breach would cause the Mortgage Loan not to be a Qualified Mortgage, and if such Document Defect or Breach is capable of being cured but not within such 90-day period and the Seller has commenced and is diligently proceeding with the cure of such Document Defect or Breach within such 90-day period, the Seller shall have an additional 90 days to complete such cure (or, failing such cure, to repurchase or substitute the related Mortgage Loan); and provided, further, that with respect to such additional 90-day period the Seller shall have delivered an officer's certificate to the Trustee setting forth the reason such Document Defect or Breach is not capable of being cured within the initial 90-day period and what actions the Seller is pursuing in connection with the cure thereof and stating that the Seller anticipates that such Document Defect or Breach will be cured within the additional 90-day period; and provided; further, that no Document Defect (other than with respect to a Mortgage Note, Mortgage, title insurance policy, Ground Lease or any letter of credit) shall be considered to materially and adversely affect the interests of the Certificateholders or the value of the related Mortgage Loan unless the document with respect to which the Document Defect exists is required in connection with an imminent enforcement of the mortgagee's rights or remedies under the related Mortgage Loan, defending any claim asserted by any borrower or third party with respect to the Mortgage Loan, establishing the validity or priority of any lien or any collateral securing the Mortgage Loan or for any immediate servicing obligations. A Document Defect or Breach as to a Mortgage Loan that is cross-collateralized and cross-defaulted with one or more other Mortgage Loans (each a "Crossed Loan") that materially and adversely affects the value of such other Mortgage Loans, and is not cured as provided for above, shall require the repurchase or substitution of all such cross-collateralized and cross-defaulted Mortgage Loans which are materially and adversely affected by such Document Defect or Breach; provided, that if any Crossed Loan is not so materially and adversely affected and therefore is not so repurchased or substituted, then such Crossed Loan shall be released from its cross-collateralization and cross-default provision so long as such Crossed Loan is held in the Trust Fund; provided, further, that the repurchase of less than all such Crossed Loans and the release from cross-collateralization and cross-default provision shall be subject to the delivery by the Seller to the Trustee, at the expense of the Seller, of an Opinion of Counsel to the effect that such release would not cause REMIC I or REMIC II to fail to qualify as a REMIC under the Code or result in the imposition of any tax on "prohibited transactions" or "contributions" after the Startup Day under the REMIC Provisions. For a period of two years from the Closing Date, so long as there remains any Mortgage File relating to a Mortgage Loan as to which there is any uncured Document Defect or Breach known to the Seller, the Seller shall provide the officer's certificate to the Trustee described above as to the reasons such Document Defect or Breach remains uncured and as to the actions being taken to pursue cure; provided, however, that, without limiting the effect of the foregoing provisions of this Section 3(c), if such Document Defect or Breach shall materially and adversely affect the value of such Mortgage Loan or the interests of the holders of the Certificates therein (subject to the last proviso in the second preceding sentence), the Seller shall in all cases on or prior to the second anniversary of the Closing Date either cause such Document Defect or Breach to be cured or repurchase or substitute for the affected Mortgage Loan. Notwithstanding the foregoing, the delivery of a commitment to issue a policy of lender's title insurance as described in clause 12 of Schedule I hereof in lieu of the delivery of the actual policy of lender's title insurance shall not be considered a Document Defect or Breach with respect to any Mortgage File if such actual policy of insurance is delivered to Purchaser pursuant to this Agreement are in full force and effect, without material default by any party and without any right of set-off except as disclosed in writing at the time of such deliveryTrustee or a Custodian on its behalf not later than the 90th day following the Closing Date.
(d) There is no master lease In connection with any permitted repurchase or substitution of one or more Mortgage Loans contemplated hereby, upon receipt of a certificate from a Servicing Officer certifying as to the receipt of the Property Purchase Price (as defined in the Pooling and Servicing Agreement) or Substitution Shortfall Amount(s), as applicable, in the Certificate Account, and the delivery of the Mortgage File(s) and the Servicing File(s) for the related Qualified Substitute Mortgage Loan(s) to any affiliate of the Custodian and the Master Servicer, respectively, if applicable (i) the Trustee shall execute and deliver such endorsements and assignments as are provided to it by the Master Servicer or the Seller, in each case without recourse, representation or if such master lease existswarranty, Seller as shall cause such master lease be necessary to be terminated at Closing without Purchaser paying any termination fee. The Rent Roll attached hereto vest in the Seller, the legal and beneficial ownership of each repurchased Mortgage Loan or substituted Mortgage Loan, as Exhibit B is trueapplicable, correct and complete in (ii) the Trustee, the Custodian, the Master Servicer and the Special Servicer shall each tender to the Seller, upon delivery to each of them of a receipt executed by the Seller, all material respects as portions of the date set forth on Mortgage File and other documents pertaining to such Mortgage Loan possessed by it and the Rent Roll. As of Master Servicer and the Closing, Special Servicer shall release to the Rent Roll delivered at the Closing will be true, correct Seller any Escrow Payments and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are Reserve Funds held by it in full force and effect, without default by any party and without any right of setoff, except as expressly provided by the terms respect of such Leases repurchased or as disclosed on the Rent Roll attached hereto. The copies of the Leases and other agreements with the tenants under the Leases (the “Tenants”) delivered to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating to the Real Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real Propertydeleted Mortgage Loan.
(e) Exhibit J attached hereto is a true and complete schedule of all Without limiting the remedies of the Contracts (as hereinafter defined in Section 7)Purchaser, true, complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy the Certificateholders or the Trustee on behalf of the management agreement currently in effect with respect Certificateholders pursuant to this Agreement, it is acknowledged that the representations and warranties are being made for risk allocation purposes. This Section 3 provides the sole remedy available to the Property. To Seller’s actual knowledgeCertificateholders, or the Contracts are Trustee on behalf of the Certificateholders, respecting any Document Defect in full force and effect, without material default by a Mortgage File or any party and without any claims made for the right of setoff, except as expressly provided by the terms of such Contracts or as disclosed to Purchaser in writing at the time of such delivery. The Contracts constitute the entire agreements with such vendors relating to the Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excluding, however, the Leases and Permitted Encumbrances) affecting the Property which will survive the Closing.
(f) At the Closing, there will be no outstanding contracts made by Seller for the construction or repair Breach of any improvements to the Improvements which have not been fully paid for, and Seller shall cause to be discharged all mechanics’ representation or materialmen’s liens arising from any labor or materials furnished to the Improvements prior to the Closing.
(g) Except as warranty set forth in Exhibit K attached hereto, there are no pending or, or required to Seller’s actual knowledge (without any duty of inquiry or investigation), threatened legal proceedings or actions of any kind or character affecting the Property or Seller’s interest therein, including, without limitation, condemnation proceedings.
(h) Seller has not received any actual written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or the Property relating in any way be made pursuant to a Release or compliance with Environmental Laws. For purposes Section 3 of this Agreement, the phrase “Environmental Laws” shall mean any federal, state or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materials, or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 00.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (First Union Commercial Mortgage Securities Inc)
Representations, Warranties and Covenants of Seller. (a) The Seller hereby represents, represents and warrants to and covenants to Purchaser that with the following matters are true and correct Purchaser, as of the execution of this Agreement and will also be true and correct as of the Closingdate hereof, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx Xxxxxxxxxthat:
(ai) The Seller is a statutory trust duly formed national banking association organized and validly existing and in good standing under the laws of the State United States and possesses all requisite authority, power, licenses, permits and franchises to carry on its business as currently conducted by it and to execute, deliver and comply with its obligations under the terms of Delaware. this Agreement;
(ii) This Agreement has been, been duly and all the documents executed by Seller which are to be delivered to Purchaser at the Closing will be, duly validly authorized, executed and delivered by the Seller and, assuming due authorization, execution and will be delivery hereof by the Purchaser, constitutes a legal, valid and binding obligations obligation of Seller the Seller, enforceable against the Seller in accordance with their respective terms (its terms, except to the extent that as such enforcement may be limited by applicable bankruptcy, insolvency, reorganization, receivership, moratorium and other laws affecting the enforcement of creditors' rights in general, as they may be applied in the context of the insolvency of a national banking association, and by general equity principles relating to (regardless of whether such enforcement is considered in a proceeding in equity or limiting the right of contracting parties generallyat law), will be sufficient and by public policy considerations underlying the securities laws, to convey title (if they the extent that such public policy considerations limit the enforceability of the provisions of this Agreement which purport to do soprovide indemnification from liabilities under applicable securities laws;
(iii) The execution and delivery of this Agreement by the Seller and the Seller's performance and compliance with the terms of this Agreement will not (A) violate the Seller's articles of association or bylaws, (B) violate any provisions law or regulation or any administrative decree or order to which it is subject or (C) constitute a material default (or an event which, with notice or lapse of time, or both, would constitute a material default) under, or result in the breach of, any material contract, agreement or other instrument to which the Seller is a party or to by which the Property or Seller is bound;
(iv) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or other governmental agency or body, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or have consequences that would materially and adversely affect its performance hereunder;
(v) The Seller is not a party to or bound by any agreement or instrument or subject to any articles of association, bylaws or bound. Subject any other corporate restriction or any judgment, order, writ, injunction, decree, law or regulation that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the ability of the Seller to perform its obligations under this Agreement or that requires the consent of any third person to the satisfaction of Section 8(a)(i) below, no consent, waiver or approval by any third party is required in connection with the execution and delivery by Seller of this Agreement or the performance by the Seller of its obligations under this Agreement (except to the extent such consent has been obtained);
(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 or the consummation of the transactions contemplated by this Agreement except as have previously been obtained, and no bulk sale law applies to such transactions;
(vii) No litigation is pending or, to the Seller's knowledge, threatened against the Seller that would, in the Seller's good faith and reasonable judgment, prohibit its entering into this Agreement or materially and adversely affect the performance by the Seller of its obligations to be performed by Seller under this Agreement; and
(viii) Under generally accepted accounting principles ("GAAP") and for federal income tax purposes, the Seller will report the transfer of the Mortgage Loans to the Purchaser as a sale of the Mortgage Loans to the Purchaser in exchange for consideration consisting of a cash amount equal to the Purchase Price. The consideration received by the Seller upon the sale of the Mortgage Loans to the Purchaser will constitute reasonably equivalent value at least equal to the fair market value of the Mortgage Loans. The Seller will be solvent at all relevant times prior to, and will not be rendered insolvent by, the sale of the Mortgage Loans to the Purchaser. The Seller is not selling the Mortgage Loans to the Purchaser with any intent to hinder, delay or defraud any of the creditors of the Seller.
(b) Except The Seller hereby makes the representations and warranties contained in Schedule I and Schedule II hereto for the benefit of the Purchaser and the Trustee for the benefit of the Certificateholders as set forth on Exhibit M attached heretoof the Closing Date, Seller has not received from any governmental authority written notice, with respect to (and Seller has no actual knowledge (without any duty of inquiry or investigationsolely with respect to) of any violation of any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable to the Property, or any part thereof, that will not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change to the zoning classification or any proceedings to widen or realign any streets or highways adjacent to the Property or of any condemnation proceedingseach Mortgage Loan.
(c) To Seller’s actual knowledgeIf the Seller discovers or receives written notice of a Document Defect or a Breach pursuant to Section 2.03(a) of the Pooling and Servicing Agreement relating to a Mortgage Loan, then the Seller shall not later than 90 days from receipt of such notice (or, in the case of a Document Defect or Breach relating to a Mortgage Loan not being a "qualified mortgage" within the meaning of the REMIC Provisions (a "Qualified Mortgage"), not later than 90 days from any party to the Pooling and Servicing Agreement discovering such Document Defect or Breach provided the Seller receives such notice in a timely manner), if such Document Defect or Breach shall materially and adversely affect the value of the related Mortgage Loan or the interest of the Certificateholders therein, cure such Document Defect or Breach, as the case may be, in all material respects, which shall include payment of losses and any Additional Trust Fund Expenses associated therewith or, if such Document Defect or Breach (other than omissions solely due to a document not having been returned by the related recording office) cannot be cured within such 90-day period, (i) repurchase the operating statements, income and expense reports and all other contracts affected Mortgage Loan at the applicable Purchase Price not later than the end of such 90-day period or documents required to be delivered to Purchaser pursuant to this Agreement are true, correct and complete copies; and (ii) all contracts or documents required substitute a Qualified Substitute Mortgage Loan for such affected Mortgage Loan not later than the end of such 90-day period (and in no event later than the second anniversary of the Closing Date) and pay the Master Servicer for deposit into the Certificate Account, any Substitution Shortfall Amount in connection therewith; provided, however, that unless the breach would cause the Mortgage Loan not to be a Qualified Mortgage, and if such Document Defect or Breach is capable of being cured but not within such 90-day period and the Seller has commenced and is diligently proceeding with the cure of such Document Defect or Breach within such 90-day period, such Seller shall have an additional 90 days to complete such cure (or, failing such cure, to repurchase or substitute the related Mortgage Loan); and provided, further, that with respect to such additional 90-day period the Seller shall have delivered an officer's certificate to the Trustee setting forth the reason such Document Defect or Breach is not capable of being cured within the initial 90-day period and what actions the Seller is pursuing in connection with the cure thereof and stating that the Seller anticipates that such Document Defect or Breach will be cured within the additional 90-day period; and provided; further, that no Document Defect (other than with respect to a Mortgage Note, Mortgage, title insurance policy, Ground Lease or any letter of credit) shall be considered to materially and adversely affect the interests of the Certificateholders or the value of the related Mortgage Loan unless the document with respect to which the Document Defect exists is required in connection with an imminent enforcement of the mortgagee's rights or remedies under the related Mortgage Loan, defending any claim asserted by any borrower or third party with respect to the Mortgage Loan, establishing the validity or priority of any lien or any collateral securing the Mortgage Loan or for any immediate servicing obligations. A Document Defect or Breach as to a Mortgage Loan that is cross-collateralized and cross-defaulted with one or more other Mortgage Loans (each a "Crossed Loan") that materially and adversely affects the value of such other Mortgage Loans, and is not cured as provided for above, shall require the repurchase or substitution of all such cross-collateralized and cross-defaulted Mortgage Loans which are materially and adversely affected by such Document Defect or Breach; provided, that if any Crossed Loan is not so repurchased or substituted, then such Crossed Loan shall be released from its cross-collateralization and cross-default provision so long as such Crossed Loan is held in the Trust Fund; provided, further, that the borrower under such Mortgage Loan is an intended third party beneficiary of this provision, which shall not be modified without such borrower's consent. For a period of two years from the Closing Date, so long as there remains any Mortgage File relating to a Mortgage Loan as to which there is any uncured Document Defect or Breach, the Seller shall provide the officer's certificate to the Trustee described above as to the reasons such Document Defect or Breach remains uncured and as to the actions being taken to pursue cure; provided, however, that, without limiting the effect of the foregoing provisions of this Section 3(c), if such Document Defect or Breach shall materially and adversely affect the value of such Mortgage Loan or the interests of the holders of the Certificates therein (subject to the last proviso in the immediately preceding sentence), the Seller shall in all cases on or prior to the second anniversary of the Closing Date either cause such Document Defect or Breach to be cured or repurchase or substitute for the affected Mortgage Loan. Notwithstanding the foregoing, the delivery of a commitment to issue a policy of lender's title insurance as described in clause 12 of Schedule I hereof in lieu of the delivery of the actual policy of lender's title insurance shall not be considered a Document Defect or Breach with respect to any Mortgage File if such actual policy of insurance is delivered to Purchaser pursuant to this Agreement are in full force and effect, without material default by any party and without any right of set-off except as disclosed in writing at the time of such deliveryTrustee or a Custodian on its behalf not later than the 90th day following the Closing Date.
(d) There is no master lease In connection with any permitted repurchase or substitution of one or more Mortgage Loans contemplated hereby, upon receipt of a certificate from a Servicing Officer certifying as to the receipt of the Property Purchase Price or Substitution Shortfall Amount(s), as applicable, in the Certificate Account, and the delivery of the Mortgage File(s) and the Servicing File(s) for the related Qualified Substitute Mortgage Loan(s) to any affiliate of the Custodian and the Master Servicer, respectively, if applicable (i) the Trustee shall execute and deliver such endorsements and assignments as are provided to it by the Master Servicer, in each case without recourse, representation or warranty, as shall be necessary to vest in the Seller, the legal and beneficial ownership of each repurchased Mortgage Loan or if such master lease existssubstituted Mortgage Loan, Seller as applicable, and (ii) the Trustee, the Custodian, the Master Servicer and the Special Servicer shall cause such master lease each tender to be terminated at Closing without Purchaser paying any termination fee. The Rent Roll attached hereto as Exhibit B is truethe Seller, correct and complete in upon delivery to each of them of a receipt executed by the Seller, all material respects as portions of the date set forth on the Rent Roll. As of the Closing, the Rent Roll delivered at the Closing will be true, correct and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default by any party and without any right of setoff, except as expressly provided by the terms of such Leases or as disclosed on the Rent Roll attached hereto. The copies of the Leases Mortgage File and other agreements with the tenants under the Leases (the “Tenants”) delivered documents pertaining to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating to the Real Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real PropertyMortgage Loan possessed by it.
(e) Exhibit J attached hereto is a true and complete schedule of all Without limiting the remedies of the Contracts (as hereinafter defined in Section 7)Purchaser, true, complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy the Certificateholders or the Trustee on behalf of the management agreement currently in effect with respect Certificateholders pursuant to this Agreement, it is acknowledged that the representations and warranties are being made for risk allocation purposes. This Section 3 provides the sole remedy available to the Property. To Seller’s actual knowledgeCertificateholders, or the Contracts are Trustee on behalf of the Certificateholders, respecting any Document Defect in full force and effect, without material default by a Mortgage File or any party and without any claims made for the right of setoff, except as expressly provided by the terms of such Contracts or as disclosed to Purchaser in writing at the time of such delivery. The Contracts constitute the entire agreements with such vendors relating to the Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excluding, however, the Leases and Permitted Encumbrances) affecting the Property which will survive the Closing.
(f) At the Closing, there will be no outstanding contracts made by Seller for the construction or repair Breach of any improvements to the Improvements which have not been fully paid for, and Seller shall cause to be discharged all mechanics’ representation or materialmen’s liens arising from any labor or materials furnished to the Improvements prior to the Closing.
(g) Except as warranty set forth in Exhibit K attached hereto, there are no pending or, or required to Seller’s actual knowledge (without any duty of inquiry or investigation), threatened legal proceedings or actions of any kind or character affecting the Property or Seller’s interest therein, including, without limitation, condemnation proceedings.
(h) Seller has not received any actual written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or the Property relating in any way be made pursuant to a Release or compliance with Environmental Laws. For purposes Section 3 of this Agreement, the phrase “Environmental Laws” shall mean any federal, state or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materials, or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 00.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (First Union Commercial Mortgage Pass THR Cer Ser 2001-C3)
Representations, Warranties and Covenants of Seller. (a) The Seller hereby represents, represents and warrants to and covenants to Purchaser that with the following matters are true and correct Purchaser, as of the execution of this Agreement and will also be true and correct as of the Closingdate hereof, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx Xxxxxxxxxthat:
(ai) The Seller is a statutory trust national banking association duly formed and organized, validly existing and in good standing under the laws of the State United States and the Seller has taken all necessary corporate action to authorize the execution, delivery and performance of Delaware. this Agreement by it, and has the power and authority to execute, deliver and perform this Agreement and all transactions contemplated hereby.
(ii) This Agreement has been, been duly and all the documents executed by Seller which are to be delivered to Purchaser at the Closing will be, duly validly authorized, executed and delivered by Seller the Seller, all requisite action by the Seller's directors and will be legalofficers has been taken in connection therewith, valid and (assuming the due authorization, execution and delivery hereof by the Purchaser) this Agreement constitutes the valid, legal and binding obligations agreement of Seller the Seller, enforceable against the Seller in accordance with their respective terms (its terms, except to the extent that as such enforcement may be limited by applicable (A) laws relating to bankruptcy, insolvency, moratorium and fraudulent transfer, reorganization, receivership or moratorium, (B) other principles laws relating to or limiting affecting the right rights of contracting parties creditors generally, or (C) general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law), will be sufficient to convey title .
(if they purport to do soiii) The execution and delivery of this Agreement by the Seller and the Seller's performance and compliance with the terms of this Agreement will not (A) violate the Seller's articles of association or bylaws, (B) violate any provisions law or regulation or any administrative decree or order to which it is subject or (C) constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material contract, agreement or other instrument to which the Seller is a party or to by which the Property or Seller is bound, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or materially and adversely affect its performance hereunder.
(iv) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or other governmental agency or body, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or materially and adversely affect its performance hereunder.
(v) The Seller is not a party to or bound by any agreement or instrument or subject to any articles of association, bylaws or bound. Subject any other corporate restriction or any judgment, order, writ, injunction, decree, law or regulation that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the ability of the Seller to perform its obligations under this Agreement or that requires the consent of any third person to the satisfaction of Section 8(a)(i) below, no consent, waiver or approval by any third party is required in connection with the execution and delivery by Seller of this Agreement or the performance by the Seller of its obligations under this Agreement (except to the extent such consent has been obtained).
(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 or the consummation of the transactions contemplated by this Agreement except as have previously been obtained, and no bulk sale law applies to such transactions.
(vii) None of the sale of the Mortgage Loans by the Seller, the transfer of the Mortgage Loans to the Trustee, and the execution, delivery or performance of this Agreement by the Seller, results or will result in the creation or imposition of any lien on any of the Seller's assets or property that would have a material adverse effect upon the Seller's ability to perform its duties and obligations under this Agreement or materially impair the ability of the Purchaser to be performed realize on the Mortgage Loans.
(viii) There is no action, suit, proceeding or investigation pending or to the knowledge of the Seller, threatened against the Seller in any court or by or before any other governmental agency or instrumentality which would, in the Seller's good faith and reasonable judgment, prohibit its entering into this Agreement or materially and adversely affect the validity of this Agreement or the performance by the Seller of its obligations under this Agreement.
(ix) Under generally accepted accounting principles ("GAAP") and for federal income tax purposes, the Seller will report the transfer of the Mortgage Loans to the Purchaser as a sale of the Mortgage Loans to the Purchaser in exchange for consideration consisting of a cash amount equal to the Purchase Consideration. The consideration received by the Seller upon the sale of the Mortgage Loans to the Purchaser will constitute at least reasonably equivalent value and fair consideration for the Mortgage Loans. The Seller will be solvent at all relevant times prior to, and will not be rendered insolvent by, the sale of the Mortgage Loans to the Purchaser. The Seller is not selling the Mortgage Loans to the Purchaser with any intent to hinder, delay or defraud any of the creditors of the Seller.
(b) Except The Seller hereby makes the representations and warranties contained in Schedule I hereto for the benefit of the Purchaser and the Trustee for the benefit of the Certificateholders as of the Closing Date (unless a different date is specified therein), with respect to (and solely with respect to) each Mortgage Loan, subject, however, to the exceptions set forth on Exhibit M attached hereto, Seller has not received from any governmental authority written notice, and Seller has no actual knowledge (without any duty Annex A to Schedule I of inquiry or investigation) of any violation of any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable to the Property, or any part thereof, that will not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change to the zoning classification or any proceedings to widen or realign any streets or highways adjacent to the Property or of any condemnation proceedingsthis Agreement.
(c) To Seller’s actual knowledgeIf the Seller receives written notice of a Document Defect or a Breach relating to a Mortgage Loan pursuant to Section 2.03(a) of the Pooling and Servicing Agreement, then the Seller shall, not later than 90 days from receipt of such notice (or, in the case of a Document Defect or Breach relating to a Mortgage Loan not being a "qualified mortgage" within the meaning of the REMIC Provisions (a "Qualified Mortgage"), not later than 90 days from any party to the Pooling and Servicing Agreement discovering such Document Defect or Breach, provided the Seller receives such notice in a timely manner), if such Document Defect or Breach materially and adversely affects the value of the related Mortgage Loan or the interests of the Certificateholders therein, cure such Document Defect or Breach, as the case may be, in all material respects, which shall include payment of losses and any Additional Trust Fund Expenses associated therewith or, if such Document Defect or Breach (other than omissions due solely to a document not having been returned by the related recording office) cannot be cured within such 90-day period, (i) repurchase the operating statementsaffected Mortgage Loan (which, income for the purposes of this clause (i), shall include an REO Loan) at the applicable Purchase Price (as defined in the Pooling and expense reports and all other contracts Servicing Agreement) not later than the end of such 90-day period or documents required to be delivered to Purchaser pursuant to this Agreement are true, correct and complete copies; and (ii) all contracts substitute a Qualified Substitute Mortgage Loan for such affected Mortgage Loan (which, for purposes of this clause (ii), shall include an REO Loan) not later than the end of such 90-day period (and in no event later than the second anniversary of the Closing Date) and pay the Master Servicer for deposit into the Collection Account any Substitution Shortfall Amount in connection therewith; provided, however, that, unless the Document Defect or documents required Breach would cause the Mortgage Loan not to be a Qualified Mortgage, if such Document Defect or Breach is capable of being cured but not within such 90-day period and the Seller has commenced and is diligently proceeding with the cure of such Document Defect or Breach within such 90-day period, the Seller shall have an additional 90 days to complete such cure (or, failing such cure, to repurchase or substitute the related Mortgage Loan (which, for purposes of such repurchase or substitution, shall include an REO Loan)); and provided, further, that with respect to such additional 90-day period, the Seller shall have delivered an officer's certificate to Purchaser pursuant the Trustee setting forth the reason(s) such Document Defect or Breach is not capable of being cured within the initial 90-day period and what actions the Seller is pursuing in connection with the cure thereof and stating that the Seller anticipates that such Document Defect or Breach will be cured within the additional 90-day period; and provided, further, that no Document Defect (other than with respect to the Specially Designated Mortgage Loan Documents) shall be considered to materially and adversely affect the interests of the Certificateholders or the value of the related Mortgage Loan unless the document with respect to which the Document Defect exists is required in connection with an imminent enforcement of the mortgagee's rights or remedies under the related Mortgage Loan, defending any claim asserted by any borrower or third party with respect to the Mortgage Loan, establishing the validity or priority of any lien or any collateral securing the Mortgage Loan or for any immediate servicing obligations. A Document Defect or Breach (which Document Defect or Breach materially and adversely affects the value of the related Mortgage Loan or the interests of the Certificateholders therein) as to a Mortgage Loan that is cross-collateralized and cross-defaulted with one or more other Mortgage Loans (each, a "Crossed Loan" and such Crossed Loans, collectively, a "Crossed Loan Group"), which Document Defect or Breach does not constitute a Document Defect or Breach, as the case may be, as to any other Crossed Loan in such Crossed Loan Group (without regard to this Agreement are paragraph) and is not cured as provided for above, shall be deemed to constitute a Document Defect or Breach, as the case may be, as to each other Crossed Loan in full force the subject
(1) the weighted average debt service coverage ratio for all the remaining Crossed Loans for the four calendar quarters immediately preceding such repurchase or substitution is not less than the greater of (A) the weighted average debt service coverage ratio for all such Crossed Loans, including the affected Crossed Loan, for the four calendar quarters immediately preceding such repurchase or substitution and effect(B) the weighted average debt service coverage ratio for all such Crossed Loans, without material default by any party and without any right including the affected Crossed Loan, as of setthe Cut-off except as disclosed in writing Date, and (2) the weighted average loan to-value ratio for the remaining Crossed Loans, determined at the time of such delivery.
(d) There is no master lease repurchase or substitution, based upon an appraisal obtained by the Special Servicer at the expense of the Property to any affiliate of Seller, or if such master lease exists, Seller shall cause not be greater than the lesser of (A) the weighted average loan-to-value ratio for all such master lease to be terminated at Closing without Purchaser paying any termination fee. The Rent Roll attached hereto as Exhibit B is trueCrossed Loans, correct and complete in all material respects as of including the date set forth on the Rent Roll. As of the Closing, the Rent Roll delivered at the Closing will be true, correct and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default by any party and without any right of setoff, except as expressly provided by the terms of such Leases or as disclosed on the Rent Roll attached hereto. The copies of the Leases and other agreements with the tenants under the Leases (the “Tenants”) delivered to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating to the Real Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real Property.
(e) Exhibit J attached hereto is a true and complete schedule of all of the Contracts (as hereinafter defined in Section 7), true, complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy of the management agreement currently in effect with respect to the Property. To Seller’s actual knowledge, the Contracts are in full force and effect, without material default by any party and without any claims made for the right of setoff, except as expressly provided by the terms of such Contracts or as disclosed to Purchaser in writing affected Crossed Loan determined at the time of repurchase or substitution, based upon an appraisal obtained by the Special Servicer at the expense of the Seller and (B) the weighted average loan-to-value ratio for all such deliveryCrossed Loans, including the affected Crossed Loan, as of the Cut-off Date; provided, that if such debt service coverage and loan-to-value criteria are satisfied, any other Crossed Loan (that is not the Crossed Loan directly affected by the subject Document Defect or Breach), shall be released from its cross-collateralization and cross-default provision so long as such Crossed Loan (that is not the Crossed Loan directly affected by the subject Document Defect or Breach) is held in the Trust Fund; and provided, further, that the repurchase or replacement of less than all such Crossed Loans and the release of any Crossed Loan from a cross-collateralization and cross-default provision shall be further subject to the delivery by the Seller to the Trustee, at the expense of the Seller, of an Opinion of Counsel to the effect that such release would not cause either of REMIC I or REMIC II to fail to qualify as a REMIC under the Code or result in the imposition of any tax on "prohibited transactions" or "contributions" after the Startup Day under the REMIC Provisions. The Contracts constitute In the entire agreements with event that one or more of such vendors other Crossed Loans satisfy the aforementioned criteria, the Seller may elect either to repurchase or substitute for only the affected Crossed Loan as to which the related Document Defect or Breach exists or to repurchase or substitute for all of the Crossed Loans in the related Crossed Loan Group. All documentation relating to the Propertytermination of the cross-collateralization provisions of a Crossed Loan being repurchased shall be prepared at the expense of the Seller and, have not been materially amendedwhere required, modified with the consent of the related borrower. For a period of two years from the Closing Date, so long as there remains any Mortgage File relating to a Mortgage Loan as to which there is any uncured Document Defect or supplementedBreach known to the Seller, except for the Seller shall provide, once every ninety days, the officer's certificate to the Trustee described above as to the reason(s) such amendments, modifications Document Defect or Breach remains uncured and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excludingthe actions being taken to pursue cure; provided, however, that, without limiting the Leases effect of the foregoing provisions of this Section 3(c), if such Document Defect or Breach shall materially and Permitted Encumbrances) affecting adversely affect the Property which will survive value of such Mortgage Loan or the Closing.
interests of the holders of the Certificates therein (f) At the Closing, there will be no outstanding contracts made by Seller for the construction or repair of any improvements subject to the Improvements which have not been fully paid forlast proviso in the sole sentence of the preceding paragraph), and the Seller shall cause to be discharged in all mechanics’ cases on or materialmen’s liens arising from any labor or materials furnished to the Improvements prior to the Closing.
second anniversary of the Closing Date either cause such Document Defect or Breach to be cured or repurchase or substitute for the affected Mortgage Loan. To the extent that the Seller is required to repurchase or substitute for a Crossed Loan hereunder in the manner prescribed above in this Section 3(c) while the Trustee continues to hold any other Crossed Loans in such Crossed Loan Group, the Seller and the Purchaser shall not enforce any remedies against the other's Primary Collateral (g) Except as set forth in Exhibit K attached hereto, there are no pending or, to Seller’s actual knowledge (without any duty of inquiry or investigationdefined below), threatened legal proceedings or actions of any kind or character affecting but each is permitted to exercise remedies against the Property or Seller’s interest therein, including, without limitation, condemnation proceedings.
(h) Seller has not received any actual written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or the Property relating in any way to a Release or compliance with Environmental Laws. For purposes of this Agreement, the phrase “Environmental Laws” shall mean any federal, state or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materials, or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 00Primary Collateral securing its respective Crossed
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Merrill Lynch Mortgage Trust 2005-Cki1)
Representations, Warranties and Covenants of Seller. (a) The Seller hereby represents, represents and warrants to and covenants to Purchaser that with the following matters are true and correct Purchaser, as of the execution of this Agreement and will also be true and correct as of the Closingdate hereof, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx Xxxxxxxxxthat:
(ai) The Seller is a statutory trust duly formed and organized or formed, as the case may be, validly existing and in good standing as a legal entity under the laws of the State United States and possesses all requisite authority, power, licenses, permits and franchises to carry on its business as currently conducted by it and to execute, deliver and comply with its obligations under the terms of Delaware. this Agreement.
(ii) This Agreement has been, been duly and all the documents executed by Seller which are to be delivered to Purchaser at the Closing will be, duly validly authorized, executed and delivered by the Seller and, assuming due authorization, execution and will be delivery hereof by the Purchaser, constitutes a legal, valid and binding obligations obligation of Seller the Seller, enforceable against the Seller in accordance with their respective terms (its terms, except to the extent that as such enforcement may be limited by applicable (A) bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws affecting the enforcement of creditors' rights in general, and other (B) general equity principles relating to (regardless of whether such enforcement is considered in a proceeding in equity or limiting at law).
(iii) The execution and delivery of this Agreement by the right Seller and the Seller's performance and compliance with the terms of contracting parties generally), will be sufficient to convey title (if they purport to do so) and this Agreement will not (A) violate the Seller's organizational documents, (B) violate any provisions law or regulation or any administrative decree or order to which the Seller is subject if compliance therewith is material to (i) the enforceability of this Agreement or any other agreements contemplated hereby or (ii) the Seller's ability to perform its duties and obligations under, or contemplated by, this Agreement, or (C) constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material contract, agreement or other instrument to which the Seller is a party or to by which the Property or Seller is subject bound, the effect of which default or bound. Subject breach would be material to the satisfaction Seller or which violation or default would have a material adverse effect on the performance of Section 8(a)(iits obligations under, or contemplated by, this Agreement.
(iv) belowThe Seller is not in default with respect to any order or decree of any court or any order, no consentregulation or demand of any federal, waiver state, municipal or approval other governmental agency or body, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or have consequences that would materially and adversely affect its performance hereunder.
(v) The Seller is not a party to or bound by any agreement or instrument or subject to any organizational document or any other corporate or limited liability company (as applicable) restriction or any judgment, order, writ, injunction, decree, law or regulation that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the ability of the Seller to perform its obligations under this Agreement or that requires the consent of any third party is required in connection with person to the execution and delivery by Seller of this Agreement by the Seller or the performance by the Seller of the its obligations to be performed by Seller under this Agreement.
(vi) Except for the recordation and/or filing of assignments and other transfer documents with respect to the Mortgage Loans, as contemplated by Section 2(d) hereof, no consent, approval, authorization or order of, registration or filing with, or notice to, 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; and no bulk sale law applies to such transactions.
(vii) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller that would, in the Seller's good faith and reasonable judgment, prohibit its entering into this Agreement or materially and adversely affect the performance by the Seller of its obligations under this Agreement.
(viii) No proceedings looking toward liquidation, dissolution or bankruptcy of the Seller are pending or contemplated. In addition, the Seller hereby further represents and warrants to, and covenants with, the Purchaser, as of the date hereof, that:
(i) Under generally accepted accounting principles ("GAAP") and for federal income tax purposes, the Seller will report the transfer of the Mortgage Loans to the Purchaser, as provided herein, as a sale of the Mortgage Loans to the Purchaser in exchange for the consideration specified in Section 1 hereof. In connection with the foregoing, the Seller shall cause all of its records to reflect such transfer as a sale (as opposed to a secured loan). The consideration received by the Seller upon the sale of the Mortgage Loans to the Purchaser will constitute at least reasonably equivalent value and fair consideration for the Mortgage Loans. The Seller will be solvent at all relevant times prior to, and will not be rendered insolvent by, the sale of the Mortgage Loans to the Purchaser. The Seller is not selling the Mortgage Loans to the Purchaser with any intent to hinder, delay or defraud any of the creditors of the Seller. After giving effect to its transfer of the Mortgage Loans to the Purchaser, as provided herein, the value of the Seller's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Seller's debts and obligations, including contingent and unliquidated debts and obligations of the Seller, and the Seller will not be left with unreasonably small assets or capital with which to engage in and conduct its business. The Mortgage Loans do not constitute all or substantially all of the assets of the Seller. The Seller does not intend to, and does not believe that it will, incur debts or obligations beyond its ability to pay such debts and obligations as they mature.
(ii) The Seller will acquire the Seller's Residual Interest Certificates for its own account and not with a view or intention to distribute such Residual Interest Certificates, in whole or in part, in any manner that would violate the Securities Act or any applicable state securities laws.
(iii) The Seller understands that (A) the Seller's Residual Interest Certificates have not been and will not be registered under the Securities Act or registered or qualified under any applicable state securities laws, (B) neither the Purchaser nor any other party is obligated so to register or qualify the Seller's Residual Interest Certificates and (C) neither the Seller's Residual Interest Certificates nor any security issued in exchange therefor or in lieu thereof may be (1) sold or transferred in connection with a distribution unless it is registered pursuant to the Securities Act and registered or qualified pursuant to any applicable state securities laws or (2) sold, transferred or distributed in a transaction which is exempt from such registration and qualification and the Certificate Registrar has received the certifications and/or opinions of counsel required by the Pooling and Servicing Agreement.
(iv) The Seller understands that it may not sell or otherwise transfer the Seller's Residual Interest Certificates, any security issued in exchange therefor or in lieu thereof or any interest in the foregoing except in compliance with the provisions of Section 5.02 of the Pooling and Servicing Agreement, which provisions it has or, as of the Closing Date, will have carefully reviewed, and that the Seller's Residual Interest Certificates will bear legends that identify the transfer restrictions to which such Certificates are subject.
(v) Neither the Seller nor anyone acting on its behalf has (A) offered, transferred, pledged, sold or otherwise disposed of any Seller's Residual Interest Certificate, any interest in a Seller's Residual Interest Certificate or any other similar security to any person in any manner, (B) solicited any offer to buy or accept a transfer, pledge or other disposition of any Seller's Residual Interest Certificate, any interest in a Seller's Residual Interest Certificate or any other similar security from any person in any manner, (C) otherwise approached or negotiated with respect to any Seller's Residual Interest Certificate, any interest in a Seller's Residual Interest Certificate or any other similar security with any person in any manner, (D) made any general solicitation by means of general advertising or in any other manner, or (E) taken any other action, that (in the case of any of the acts described in clauses (A) through (E) above) would constitute a distribution of the Seller's Residual Interest Certificates under the Securities Act, would render the disposition of the Seller's Residual Interest Certificates a violation of Section 5 of the Securities Act or any state securities law or would require registration or qualification of the Seller's Residual Interest Certificates pursuant thereto. The Seller will not act, nor has it authorized nor will it authorize any person to act, in any manner set forth in the foregoing sentence with respect to the Seller's Residual Interest Certificates, any interest in the Seller's Residual Interest Certificates or any other similar security.
(vi) The Seller has been furnished with all information regarding (A) the Purchaser, (B) the Seller's Residual Interest Certificates and distributions thereon, (C) the nature, performance and servicing of the Other Loans, (D) the Pooling and Servicing Agreement and the Trust Fund, and (E) all related matters, that it has requested.
(vii) The Seller is either (a) a "qualified institutional buyer" within the meaning of Rule 144A under the Securities Act or (b) Except an "accredited investor" as defined in any of paragraphs (1), (2), (3) and (7) of Rule 501(a) under the Securities Act or an entity in which all its equity owners are "accredited investors" as defined in such paragraphs and has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Seller's Residual Interest Certificates. The Seller has sought such accounting, legal and tax advice as it has considered necessary to make an informed investment decision; and the Seller is able to bear the economic risks of such an investment and can afford a complete loss of such investment.
(viii) The Seller is not a Plan and is not directly or indirectly acquiring the Seller's Residual Interest Certificates on behalf of, as named fiduciary of, as trustee of or with assets of a Plan.
(ix) The Seller is a United States Tax Person and is not a Disqualified Organization.
(b) The Seller hereby makes, for the benefit of the Purchaser, with respect to each Mortgage Loan, as of the Closing Date or as of such other date expressly set forth therein, each of the representations and warranties set forth on Exhibit M attached B hereto, Seller has not received from any governmental authority written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any violation of any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable to the Property, or any part thereof, that will not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change to the zoning classification or any proceedings to widen or realign any streets or highways adjacent to the Property or of any condemnation proceedings.
(c) To The Seller intends to transfer the Seller’s actual knowledge's Residual Interest Certificates to Xxxxxxx Lynch, (i) Pierce, Xxxxxx & Xxxxx Incorporated on or about the operating statementsClosing Date; and, income and expense reports and all other contracts or documents required to be delivered to Purchaser pursuant to this Agreement are true, correct and complete copies; and (ii) all contracts or documents required to be delivered to Purchaser pursuant to this Agreement are in full force and effect, without material default by any party and without any right of set-off except as disclosed in writing at the time of such delivery.
(d) There is no master lease of the Property to any affiliate of Seller, or if such master lease exists, Seller shall cause such master lease to be terminated at Closing without Purchaser paying any termination fee. The Rent Roll attached hereto as Exhibit B is true, correct and complete in all material respects as of the date set forth on the Rent Roll. As of the Closingconnection therewith, the Rent Roll delivered at the Closing Seller will be true, correct and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default by any party and without any right of setoff, except as expressly provided by the terms of such Leases or as disclosed on the Rent Roll attached hereto. The copies of the Leases and other agreements comply with the tenants under the Leases (the “Tenants”) delivered to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating to the Real Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real Property.
(e) Exhibit J attached hereto is a true and complete schedule of all of the Contracts (as hereinafter defined in requirements of Section 7), true, complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy 5.02 of the management agreement currently Pooling and Servicing Agreement, as in effect with respect to on the Property. To Seller’s actual knowledgeClosing Date, the Contracts are in full force and effect, without material default by any party and without any claims made for the right of setoff, except as expressly provided by the terms of such Contracts or as disclosed to Purchaser in writing at the time of such deliveryapplicable law. The Contracts constitute Seller hereby directs the entire agreements with such vendors relating Purchaser to cause the Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excluding, however, the Leases and Permitted Encumbrances) affecting the Property which will survive the Closing.
(f) At the Closing, there will be no outstanding contracts made by Seller for the construction or repair of any improvements to the Improvements which have not been fully paid for, and Seller shall cause Seller's Residual Interest Certificates to be discharged all mechanics’ or materialmen’s liens arising from any labor or materials furnished to registered in the Improvements prior to the Closingname of Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated upon initial issuance.
(g) Except as set forth in Exhibit K attached hereto, there are no pending or, to Seller’s actual knowledge (without any duty of inquiry or investigation), threatened legal proceedings or actions of any kind or character affecting the Property or Seller’s interest therein, including, without limitation, condemnation proceedings.
(h) Seller has not received any actual written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or the Property relating in any way to a Release or compliance with Environmental Laws. For purposes of this Agreement, the phrase “Environmental Laws” shall mean any federal, state or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materials, or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 00
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (LB-UBS Commercial Mortgage Trust 2006-C7)
Representations, Warranties and Covenants of Seller. (a) The Seller hereby represents, represents and warrants to and covenants to Purchaser that with the following matters are true and correct Purchaser, as of the execution of this Agreement and will also be true and correct as of the Closingdate hereof, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx Xxxxxxxxxthat:
(ai) The Seller is a statutory trust duly formed corporation organized and validly existing and in good standing under the laws of the State of Delaware. New York and possesses all requisite authority, power, licenses, permits and franchises to carry on its business as currently conducted by it and to execute, deliver and comply with its obligations under the terms of this Agreement;
(ii) This Agreement has been, been duly and all the documents executed by Seller which are to be delivered to Purchaser at the Closing will be, duly validly authorized, executed and delivered by the Seller and, assuming due authorization, execution and will be delivery hereof by the Purchaser, constitutes a legal, valid and binding obligations obligation of Seller the Seller, enforceable against the Seller in accordance with their respective terms (its terms, except to the extent that as such enforcement may be limited by applicable bankruptcy, insolvency, reorganization, receivership, moratorium and other laws affecting the enforcement of creditors' rights in general and by general equity principles relating to (regardless of whether such enforcement is considered in a proceeding in equity or limiting the right of contracting parties generallyat law), will be sufficient and by public policy considerations underlying the securities laws, to convey title (if they the extent that such public policy considerations limit the enforceability of the provisions of this Agreement which purport to do soprovide indemnification from liabilities under applicable securities laws;
(iii) The execution and delivery of this Agreement by the Seller and the Seller's performance and compliance with the terms of this Agreement will not (A) violate the Seller's organizational documents, (B) violate any provisions law or regulation or any administrative decree or order to which it is subject or (C) constitute a material default (or an event which, with notice or lapse of time, or both, would constitute a material default) under, or result in the breach of, any material contract, agreement or other instrument to which the Seller is a party or to by which the Property or Seller is bound, which violation, default or breach, in the case of either clause (iii)(B) or (iii)(C) might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the financial condition or the operations of the Seller or its properties (taken as a whole) or have consequences that would materially and adversely affect its performance hereunder;
(iv) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or other governmental agency or body, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the financial condition or the operations of the Seller or its properties (taken as a whole) or have consequences that would materially and adversely affect its performance hereunder;
(v) The Seller is not a party to or bound by any agreement or instrument or subject to any certificate of incorporation, bylaws or bound. Subject any other corporate restriction or any judgment, order, writ, injunction, decree, law or regulation that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the ability of the Seller to perform its obligations under this Agreement or that requires the consent of any third person to the satisfaction of Section 8(a)(i) below, no consent, waiver or approval by any third party is required in connection with the execution and delivery by Seller of this Agreement or the performance by the Seller of its obligations under this Agreement (except to the extent such consent has been obtained);
(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 or the consummation of the transactions involving the Seller contemplated by this Agreement except as have previously been obtained, and no bulk sale law applies to such transactions;
(vii) No litigation is pending or, to the Seller's knowledge, threatened against the Seller that would, in the Seller's good faith and reasonable judgment, prohibit its entering into this Agreement or materially and adversely affect the performance by the Seller of its obligations to be performed by Seller under this Agreement; and
(viii) For purposes of accounting under generally accepted accounting principles ("GAAP"), and for federal income tax purposes, the Seller will report the transfer of the Mortgage Loans to the Purchaser as a sale of the Mortgage Loans to the Purchaser in exchange for consideration contemplated by this Agreement. The consideration received by the Seller upon the sale of the Mortgage Loans to the Purchaser will constitute at least reasonably equivalent value and fair consideration for the Mortgage Loans. The Seller will be solvent at all relevant times prior to, and will not be rendered insolvent by, the sale of the Mortgage Loans to the Purchaser. The Seller is not transferring the Mortgage Loans to the Purchaser with any intent to hinder, delay or defraud any of the creditors of the Seller or on account of an antecedent debt.
(b) Except as The Seller hereby makes, on the date hereof and on the Closing Date, the representations and warranties contained in Schedule I and Schedule II hereto with respect to each Mortgage Loan, for the benefit of the Purchaser, which representations and warranties are subject to the exceptions set forth on Exhibit M attached hereto, Seller has not received from any governmental authority written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) Schedule III. References in this Agreement to "Breach" mean a breach of any violation of any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable to the Property, or any part thereof, that will not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change to the zoning classification or any proceedings to widen or realign any streets or highways adjacent to the Property or of any condemnation proceedings.
(c) To Seller’s actual knowledge, (i) the operating statements, income such representations and expense reports and all other contracts or documents required to be delivered to Purchaser warranties made pursuant to this Agreement are true, correct and complete copies; and (iiSection 3(b) all contracts or documents required to be delivered to Purchaser pursuant to this Agreement are in full force and effect, without material default by any party and without any right of set-off except as disclosed in writing at the time of such delivery.
(d) There is no master lease of the Property to any affiliate of Seller, or if such master lease exists, Seller shall cause such master lease to be terminated at Closing without Purchaser paying any termination fee. The Rent Roll attached hereto as Exhibit B is true, correct and complete in all material respects as of the date set forth on the Rent Roll. As of the Closing, the Rent Roll delivered at the Closing will be true, correct and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default by any party and without any right of setoff, except as expressly provided by the terms of such Leases or as disclosed on the Rent Roll attached hereto. The copies of the Leases and other agreements with the tenants under the Leases (the “Tenants”) delivered to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating to the Real Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real Property.
(e) Exhibit J attached hereto is a true and complete schedule of all of the Contracts (as hereinafter defined in Section 7), true, complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy of the management agreement currently in effect with respect to the Property. To Seller’s actual knowledge, the Contracts are in full force and effect, without material default by any party and without any claims made for the right of setoff, except as expressly provided by the terms of such Contracts or as disclosed to Purchaser in writing at the time of such delivery. The Contracts constitute the entire agreements with such vendors relating to the Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excluding, however, the Leases and Permitted Encumbrances) affecting the Property which will survive the ClosingMortgage Loan.
(f) At the Closing, there will be no outstanding contracts made by Seller for the construction or repair of any improvements to the Improvements which have not been fully paid for, and Seller shall cause to be discharged all mechanics’ or materialmen’s liens arising from any labor or materials furnished to the Improvements prior to the Closing.
(g) Except as set forth in Exhibit K attached hereto, there are no pending or, to Seller’s actual knowledge (without any duty of inquiry or investigation), threatened legal proceedings or actions of any kind or character affecting the Property or Seller’s interest therein, including, without limitation, condemnation proceedings.
(h) Seller has not received any actual written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or the Property relating in any way to a Release or compliance with Environmental Laws. For purposes of this Agreement, the phrase “Environmental Laws” shall mean any federal, state or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materials, or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 00
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Citigroup Commercial Mortgage Trust 2006-C4)
Representations, Warranties and Covenants of Seller. (a) The Seller hereby represents, represents and warrants to and covenants to Purchaser that with the following matters are true and correct Purchaser, as of the execution of this Agreement and will also be true and correct as of the Closingdate hereof, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx Xxxxxxxxxthat:
(ai) The Seller is a statutory trust corporation duly formed and organized, validly existing and in good standing under the laws of the State of Delaware. Delaware and the Seller has taken all necessary corporate action to authorize the execution, delivery and performance of this Agreement by it, and has the power and authority to execute, deliver and perform this Agreement and all transactions contemplated hereby.
(ii) This Agreement has been, been duly and all the documents executed by Seller which are to be delivered to Purchaser at the Closing will be, duly validly authorized, executed and delivered by Seller the Seller, all requisite action by the Seller's directors and will be legalofficers has been taken in connection therewith, valid and (assuming the due authorization, execution and delivery hereof by the Purchaser) this Agreement constitutes the valid, legal and binding obligations agreement of Seller the Seller, enforceable against the Seller in accordance with their respective terms (its terms, except to the extent that as such enforcement may be limited by applicable (A) laws relating to bankruptcy, insolvency, moratorium and fraudulent transfer, reorganization, receivership or moratorium, (B) other principles laws relating to or limiting affecting the right rights of contracting parties creditors generally, or (C) general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law), will be sufficient to convey title .
(if they purport to do soiii) The execution and delivery of this Agreement by the Seller and the Seller's performance and compliance with the terms of this Agreement will not (A) violate the Seller's certificate of incorporation or bylaws, (B) violate any provisions law or regulation or any administrative decree or order to which it is subject or (C) constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material contract, agreement or other instrument to which the Seller is a party or to by which the Property or Seller is bound, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or might have consequences that would materially and adversely affect its performance hereunder.
(iv) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or other governmental agency or body, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or might have consequences that would materially and adversely affect its performance hereunder.
(v) The Seller is not a party to or bound by any agreement or instrument or subject to any certificate of incorporation, bylaws or bound. Subject any other corporate restriction or any judgment, order, writ, injunction, decree, law or regulation that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the ability of the Seller to perform its obligations under this Agreement or that requires the consent of any third person to the satisfaction of Section 8(a)(i) below, no consent, waiver or approval by any third party is required in connection with the execution and delivery by Seller of this Agreement or the performance by the Seller of its obligations under this Agreement (except to the extent such consent has been obtained).
(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 or the consummation of the transactions contemplated by this Agreement except as have previously been obtained, and no bulk sale law applies to such transactions.
(vii) None of the sale of the Mortgage Loans by the Seller, the transfer of the Mortgage Loans to the Trustee, and the execution, delivery or performance of this Agreement by the Seller, results or will result in the creation or imposition of any lien on any of the Seller's assets or property that would have a material adverse effect upon the Seller's ability to perform its duties and obligations under this Agreement or materially impair the ability of the Purchaser to be performed realize on the Mortgage Loans.
(viii) There is no action, suit, proceeding or investigation pending or to the knowledge of the Seller, threatened against the Seller in any court or by or before any other governmental agency or instrumentality which would, in the Seller's good faith and reasonable judgment, prohibit its entering into this Agreement or materially and adversely affect the validity of this Agreement or the performance by the Seller of its obligations under this Agreement.
(ix) Under generally accepted accounting principles ("GAAP") and for federal income tax purposes, the Seller will ---- report the transfer of the Mortgage Loans to the Purchaser as a sale of the Mortgage Loans to the Purchaser in exchange for consideration consisting of a cash amount equal to the Purchase Consideration. The consideration received by the Seller upon the sale of the Mortgage Loans to the Purchaser will constitute at least reasonably equivalent value and fair consideration for the Mortgage Loans. The Seller will be solvent at all relevant times prior to, and will not be rendered insolvent by, the sale of the Mortgage Loans to the Purchaser. The Seller is not selling the Mortgage Loans to the Purchaser with any intent to hinder, delay or defraud any of the creditors of the Seller.
(b) Except The Seller hereby makes the representations and warranties contained in Schedule I hereto for the benefit of the Purchaser and the Trustee for the benefit of the Certificateholders as of the Closing Date (unless a different date is specified therein), with respect to (and solely with respect to) each Mortgage Loan, subject, however, to the exceptions set forth on Exhibit M attached hereto, Seller has not received from any governmental authority written notice, and Seller has no actual knowledge (without any duty Annex A to Schedule I of inquiry or investigation) of any violation of any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable to the Property, or any part thereof, that will not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change to the zoning classification or any proceedings to widen or realign any streets or highways adjacent to the Property or of any condemnation proceedingsthis Agreement.
(c) To Seller’s actual knowledgeIf the Seller discovers or receives written notice of a Document Defect or a Breach relating to a Mortgage Loan pursuant to Section 2.03(a) of the Pooling and Servicing Agreement, then the Seller shall, not later than 90 days from such discovery or receipt of such notice (or, in the case of a Document Defect or Breach relating to a Mortgage Loan not being a "qualified mortgage" within the meaning of the REMIC Provisions (a "Qualified Mortgage"), not later than 90 days from any party to the Pooling and Servicing Agreement discovering such Document Defect or Breach, provided the Seller receives such notice in a timely manner), if such Document Defect or Breach shall materially and adversely affect the value of the related Mortgage Loan or the interests of the Certificateholders therein, cure such Document Defect or Breach, as the case may be, in all material respects, which shall include payment of losses and any Additional Trust Fund Expenses associated therewith or, if such Document Defect or Breach (other than omissions due solely to a document not having been returned by the related recording office) cannot be cured within such 90-day period, (i) repurchase the operating statementsaffected Mortgage Loan (which, income for the purposes of this clause (i), shall include an REO Loan) at the applicable Purchase Price (as defined in the Pooling and expense reports and all other contracts Servicing Agreement) not later than the end of such 90-day period or documents required to be delivered to Purchaser pursuant to this Agreement are true, correct and complete copies; and (ii) all contracts or documents required substitute a Qualified Substitute Mortgage Loan for such affected Mortgage Loan (which, for purposes of this clause (ii), shall include an REO Loan) not later than the end of such 90-day period (and in no event later than the second anniversary of the Closing Date) and pay the Master Servicer for deposit into the Collection Account, any Substitution Shortfall Amount in connection therewith; provided, however, that, unless the breach would cause the Mortgage Loan not to be a Qualified Mortgage, if such Document Defect or Breach is capable of being cured but not within such 90-day period and the Seller has commenced and is diligently proceeding with the cure of such Document Defect or Breach within such 90-day period, the Seller shall have an additional 90 days to complete such cure (or, failing such cure, to repurchase or substitute the related Mortgage Loan (which, for purposes of such repurchase or substitution, shall include an REO Loan)); and provided, further, that with respect to such additional 90-day period, the Seller shall have delivered an officer's certificate to Purchaser pursuant the Trustee setting forth the reason such Document Defect or Breach is not capable of being cured within the initial 90-day period and what actions the Seller is pursuing in connection with the cure thereof and stating that the Seller anticipates that such Document Defect or Breach will be cured within the additional 90-day period; and provided, further, that no Document Defect (other than with respect to this Agreement are a Specially Designated Mortgage Loan Document) shall be considered to materially and adversely affect the interests of the Certificateholders or the value of the related Mortgage Loan unless the document with respect to which the Document Defect exists is required in full force and effectconnection with an imminent enforcement of the mortgagee's rights or remedies under the related Mortgage Loan, without material default defending any claim asserted by any borrower or third party with respect to the Mortgage Loan, establishing the validity or priority of any lien on any collateral securing the Mortgage Loan or for any immediate servicing obligations.
(1) the weighted average debt service coverage ratio for all the remaining Crossed Loans for the four calendar quarters immediately preceding such repurchase or substitution is not less than the weighted average debt service coverage ratio for all such Crossed Loans, including the affected Crossed Loan, for the four calendar quarters immediately preceding such repurchase or substitution, and without any right of set(2) the weighted average loan to-off except as disclosed in writing value ratio for the remaining Crossed Loans determined at the time of such delivery.
(d) There is no master lease repurchase or substitution based upon an appraisal obtained by the Special Servicer at the expense of the Property to any affiliate of Seller, or if such master lease exists, Seller shall cause not be greater than the weighted average loan-to-value ratio for all such master lease to be terminated at Closing without Purchaser paying any termination fee. The Rent Roll attached hereto as Exhibit B is trueCrossed Loans, correct and complete in all material respects as of including the date set forth on the Rent Roll. As of the Closing, the Rent Roll delivered at the Closing will be true, correct and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default by any party and without any right of setoff, except as expressly provided by the terms of such Leases or as disclosed on the Rent Roll attached hereto. The copies of the Leases and other agreements with the tenants under the Leases (the “Tenants”) delivered to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating to the Real Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real Property.
(e) Exhibit J attached hereto is a true and complete schedule of all of the Contracts (as hereinafter defined in Section 7), true, complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy of the management agreement currently in effect with respect to the Property. To Seller’s actual knowledge, the Contracts are in full force and effect, without material default by any party and without any claims made for the right of setoff, except as expressly provided by the terms of such Contracts or as disclosed to Purchaser in writing affected Crossed Loan determined at the time of repurchase or substitution based upon an appraisal obtained by the Special Servicer at the expense of the Seller; provided, that if such deliverydebt service coverage and loan-to-value criteria are satisfied and any Crossed Loan (that is not the Crossed Loan directly affected by the subject Breach or Document Defect) is not so materially and adversely affected and therefore is not so repurchased or substituted, then such Crossed Loan shall be released from its cross-collateralization and cross-default provision so long as such Crossed Loan (that is not the Crossed Loan directly affected by the subject Breach or Document Defect) is held in the Trust Fund; and provided, further, that the repurchase or replacement of less than all such Crossed Loans and the release of any Crossed Loan from a cross-collateralization and cross-default provision shall be subject to the delivery by the Seller to the Trustee, at the expense of the Seller, of an Opinion of Counsel to the effect that such release would not cause either of REMIC I or REMIC II to fail to qualify as a REMIC under the Code or result in the imposition of any tax on "prohibited transactions" or "contributions" after the Startup Day under the REMIC Provisions; and provided, further, that the Controlling Class Representative shall have consented to the repurchase or replacement of the affected Crossed Loan, which consent shall not be unreasonably withheld. The Contracts constitute For a period of two years from the entire agreements with such vendors Closing Date, so long as there remains any Mortgage File relating to a Mortgage Loan as to which there is any uncured Document Defect or Breach known to the PropertySeller, have not been materially amendedthe Seller shall provide, modified once every ninety days, the officer's certificate to the Trustee described above as to the reasons such Document Defect or supplemented, except for such amendments, modifications Breach remains uncured and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excludingthe actions being taken to pursue cure; provided, however, that, without limiting the Leases effect of the foregoing provisions of this Section 3(c), if such Document Defect or Breach shall materially and Permitted Encumbrances) affecting adversely affect the Property which will survive value of such Mortgage Loan or the Closing.
interests of the holders of the Certificates therein (f) At the Closing, there will be no outstanding contracts made by Seller for the construction or repair of any improvements subject to the Improvements which have not been fully paid forlast proviso in the second preceding sentence), and the Seller shall cause to be discharged in all mechanics’ cases on or materialmen’s liens arising from any labor or materials furnished to the Improvements prior to the Closing.
(g) Except second anniversary of the Closing Date either cause such Document Defect or Breach to be cured or repurchase or substitute for the affected Mortgage Loan. Notwithstanding the foregoing, the delivery of a commitment to issue a policy of lender's title insurance as described in representation 8 set forth on Schedule I hereto in Exhibit K attached hereto, there are no pending or, lieu of the delivery of the actual policy of lender's title insurance shall not be considered a Document Defect or Breach with respect to Seller’s any Mortgage File if such actual knowledge (without any duty policy of inquiry insurance is delivered to the Trustee or investigation), threatened legal proceedings or actions of any kind or character affecting a Custodian on its behalf not later than the Property or Seller’s interest therein, including, without limitation, condemnation proceedings90th day following the Closing Date.
(h) Seller has not received any actual written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or the Property relating in any way to a Release or compliance with Environmental Laws. For purposes of this Agreement, the phrase “Environmental Laws” shall mean any federal, state or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materials, or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 00
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Merrill Lynch Mortgage Trust 2005-Mkb2)
Representations, Warranties and Covenants of Seller. Seller hereby represents, represents and warrants and covenants to Purchaser that at closing Seller will have good and indefeasible fee simple title to the following Subject Property free and clear of all liens, encumbrances, covenants, restrictions, rights-of-way, easements, and any other matters affecting title to the Subject Property except for the Permitted Exceptions, and at closing, Seller will be in a position to convey the Subject Property to Purchaser free and clear of all liens, encumbrances, covenants, restrictions, rights-of-way, easements and other such matters affecting title except for the Permitted Exceptions. Seller further covenants and agrees with Purchaser that, from the date hereof until the closing, Seller shall not sell, assign, or convey any right, title, or interest whatsoever in or to the Subject Property, or create or permit to exist any lien, security interest, easement, encumbrance, charge, or condition affecting the Subject Property (other than the Permitted Exceptions) without promptly discharging the same prior to closing. Seller hereby further represents and warrants to Purchaser, to the best of Seller's knowledge, as follows:
a. There are true and correct as no actions, suits, or proceedings pending or, to the best of Seller's knowledge, threatened against Seller or otherwise affecting any portion of the Subject Property, at law or in equity, or before or by any federal, state, municipal, or other governmental court, department, commission, board, bureau, agency, or instrumentality, domestic or foreign;
b. The execution by Seller of this Agreement Contract and will also be true and correct as the consummation by Seller of the Closing, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx Xxxxxxxxx:
(a) Seller is a statutory trust duly formed and validly existing under the laws of the State of Delaware. This Agreement has been, and all the documents executed by Seller which are to be delivered to Purchaser at the Closing will be, sale contemplated hereby have been duly authorized, executed and delivered by Seller and will be legaldo not, valid and binding obligations of Seller enforceable against Seller in accordance with their respective terms (except to and, at the extent that such enforcement may be limited by applicable bankruptcy, insolvency, moratorium and other principles relating to or limiting the right of contracting parties generally)closing date, will be sufficient to convey title (if they purport to do so) and will not violate any provisions not, result in a breach of any material agreement of the terms or provisions of, or constitute a default under any indenture, agreement, instrument, or obligation to which Seller is a party or to by which the Subject Property or Seller any portion thereof is subject or bound. , and do not, and at the closing date will not, constitute a violation of any regulation affecting the Subject to the satisfaction of Section 8(a)(i) below, no consent, waiver or approval by any third party is required in connection with the execution and delivery by Seller of this Agreement or the performance by Seller of the obligations to be performed by Seller under this Agreement.Property;
(b) Except as set forth on Exhibit M attached hereto, c. Seller has not received from any governmental authority written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) notice of any violation of any zoningordinance, buildingregulation, fire law, or health code statute of any governmental agency pertaining to the Subject Property or any other statute, ordinance, rule or regulation applicable to portion thereof;
d. The Subject Property and the Property, or any part thereof, that will not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change to the zoning classification or any proceedings to widen or realign any streets or highways adjacent to the Property or of any condemnation proceedings.
(c) To Seller’s actual knowledge, (i) the operating statements, income and expense reports and all other contracts or documents required to be delivered to Purchaser pursuant to this Agreement are true, correct and complete copies; and (ii) all contracts or documents required to be delivered to Purchaser pursuant to this Agreement are in full force and effect, without material default by any party and without any right of set-off except as disclosed in writing at the time of such delivery.
(d) There is no master lease of the Property to any affiliate of Seller, or if such master lease exists, Seller shall cause such master lease to be terminated at Closing without Purchaser paying any termination fee. The Rent Roll attached hereto as Exhibit B is true, correct and complete current operation thereof comply in all material respects as with all laws, regulations, ordinances, rules, orders and other requirements of all governmental authorities having jurisdiction over the Subject Property or affecting all or any part thereof or bearing on its construction or operation, and with all private covenants or restrictions;
e. From the date set forth on of execution of this Contract through the Rent Roll. As date of closing, Seller shall continue to maintain the ClosingSubject Property in its present condition, the Rent Roll delivered at the Closing will be true, correct subject to ordinary wear and complete. The copies of the Leases delivered to Purchaser are true, correct tear and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default by any party and without any right of setoff, except as expressly provided by the terms of such Leases or as disclosed on the Rent Roll attached hereto. The copies of the Leases and other agreements with the tenants under the Leases (the “Tenants”) delivered to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating to the Real Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to PurchaserArticle XV hereof, and there are no shall continue to manage the Subject Property in the same manner as it is currently being managed; Seller shall not remove any fixtures, equipment, furnishings or other leases personal property from the Subject Property unless replaced with items of equal or tenancy agreements affecting greater quality and quantity, nor shall Seller in any manner neglect the Real Subject Property.;
(e) Exhibit J attached hereto is a true and complete schedule of all of the Contracts (as hereinafter defined in Section 7)f. That, true, complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy of the management agreement currently in effect with respect to the Property. To Seller’s actual knowledge, the Contracts are in full force and effect, without material default by any party and without any claims made for the right of setoff, except as expressly provided by the terms of such Contracts or as disclosed to Purchaser in writing at the time of such delivery. The Contracts constitute the entire agreements with such vendors relating to the Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excluding, however, the Leases and Permitted Encumbrances) affecting the Property which will survive the Closing.
(f) At the Closingclosing, there will be no outstanding contracts made by Seller for the unpaid bills, claims, or liens in connection with any construction or repair of any improvements the Subject Property except for ones which will be paid in the ordinary course of business or which have been bonded around or the payment of which has otherwise been adequately provided for to the Improvements which have complete satisfaction of Purchaser; and
g. The assets and other items to be conveyed to Purchaser by Seller pursuant to this Contract comprise all of the assets and properties of Seller that are used in the operation of the Subject Property in the ordinary course of business and consistent with current practice; notwithstanding anything to the contrary contained herein, in the event that either Seller or Purchaser discovers after closing that any asset or item used in connection with the operation of the Subject Property has not been fully paid forconveyed to Purchaser at closing, then Seller will immediately, upon demand by Purchaser, convey such asset or other item to Purchaser for no additional consideration of any kind whatsoever. All of the foregoing representations and warranties of Seller are made by Seller both as of the date hereof and as of the date of the closing hereunder. Notwithstanding the foregoing or anything to the contrary contained herein, it is understood and agreed that the representations and warranties set forth hereinabove shall survive the closing of this Contract only for a period of one (1) year following the closing date, but not thereafter, and Seller shall cause to be discharged all mechanics’ or materialmen’s liens arising from any labor or materials furnished to the Improvements prior to the Closing.
(g) Except as set forth in Exhibit K attached hereto, there are have no pending or, to Seller’s actual knowledge (without any duty of inquiry or investigation), threatened legal proceedings or actions liability of any kind or character affecting whatsoever for any breach thereof except to the Property or Seller’s interest therein, including, without limitation, condemnation proceedings.
(h) Seller has not received any actual written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened extent a claim is asserted against Seller or the Property relating in any way to a Release or compliance with Environmental Laws. For purposes of this Agreement, the phrase “Environmental Laws” shall mean any federal, state or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materials, or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. within such one (“CERCLA”); the Resource Conservation and Recovery Act, 001) year period.
Appears in 1 contract
Representations, Warranties and Covenants of Seller. (a) The Seller hereby represents, represents and warrants to and covenants to Purchaser that with the following matters are true and correct Purchaser, as of the execution of this Agreement and will also be true and correct as of the Closingdate hereof, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx Xxxxxxxxxthat:
(ai) The Seller is a statutory trust duly formed and organized or formed, as the case may be, validly existing and in good standing as a legal entity under the laws of the State of Delaware. California and possesses all requisite authority, power, licenses, permits and franchises to carry on its business as currently conducted by it and to execute, deliver and comply with its obligations under the terms of this Agreement.
(ii) This Agreement has been, been duly and all the documents executed by Seller which are to be delivered to Purchaser at the Closing will be, duly validly authorized, executed and delivered by the Seller and, assuming due authorization, execution and will be delivery hereof by the Purchaser, constitutes a legal, valid and binding obligations obligation of Seller the Seller, enforceable against the Seller in accordance with their respective terms (its terms, except to the extent that as such enforcement may be limited by applicable (A) bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws affecting the enforcement of creditors' rights in general, and other (B) general equity principles relating to (regardless of whether such enforcement is considered in a proceeding in equity or limiting at law).
(iii) The execution and delivery of this Agreement by the right Seller and the Seller's performance and compliance with the terms of contracting parties generally), will be sufficient to convey title (if they purport to do so) and this Agreement will not (A) violate the Seller's organizational documents, (B) violate any provisions law or regulation or any administrative decree or order to which the Seller is subject or (C) constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material contract, agreement or other instrument to which the Seller is a party or to by which the Property or Seller is subject bound.
(iv) The Seller is not in default with respect to any order or bound. Subject decree of any court or any order, regulation or demand of any federal, state, municipal or other governmental agency or body, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or have consequences that would materially and adversely affect its performance hereunder.
(v) The Seller is not a party to the satisfaction of Section 8(a)(i) below, no consent, waiver or approval bound by any agreement or instrument or subject to any organizational document or any other corporate or limited liability company (as applicable) restriction or any judgment, order, writ, injunction, decree, law or regulation that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the ability of the Seller to perform its obligations under this Agreement or that requires the consent of any third party is required in connection with person to the execution and delivery by Seller of this Agreement by the Seller or the performance by the Seller of the its obligations to be performed by Seller under this Agreement.
(vi) Except for the recordation and/or filing of assignments and other transfer documents with respect to the Mortgage Loan, as contemplated by Section 2(d) hereof, no consent, approval, authorization or order of, registration or filing with, or notice to, 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; and no bulk sale law applies to such transactions.
(vii) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller that would, in the Seller's good faith and reasonable judgment, prohibit its entering into this Agreement or materially and adversely affect the performance by the Seller of its obligations under this Agreement.
(viii) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Seller are pending or contemplated. In addition, the Seller hereby further represents and warrants to, and covenants with, the Purchaser, as of the date hereof, that:
(i) Under generally accepted accounting principles ("GAAP") and for federal income tax purposes, the Seller will report the transfer of the Mortgage Loan to the Purchaser, as provided herein, as a sale of the Mortgage Loan to the Purchaser in exchange for the consideration specified in Section 1 hereof. In connection with the foregoing, the Seller shall cause all of its records to reflect such transfer as a sale (as opposed to a secured loan). The consideration received by the Seller upon the sale of the Mortgage Loan to the Purchaser will constitute at least reasonably equivalent value and fair consideration for the Mortgage Loan. The Seller will be solvent at all relevant times prior to, and will not be rendered insolvent by, the sale of the Mortgage Loan to the Purchaser. The Seller is not selling the Mortgage Loan to the Purchaser with any intent to hinder, delay or defraud any of the creditors of the Seller. After giving effect to its transfer of the Mortgage Loan to the Purchaser, as provided herein, the value of the Seller's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Seller's debts and obligations, including contingent and unliquidated debts and obligations of the Seller, and the Seller will not be left with unreasonably small assets or capital with which to engage in and conduct its business. The Mortgage Loan does not constitute all or substantially all of the assets of the Seller. The Seller does not intend to, and does not believe that it will, incur debts or obligations beyond its ability to pay such debts and obligations as they mature.
(ii) The Seller will acquire the Seller's Residual Interest Certificates for its own account and not with a view to, or sale or transfer in connection with, any distribution thereof, in whole or in part, in any manner that would violate the Securities Act or any applicable state securities laws.
(iii) The Seller understands that (A) the Seller's Residual Interest Certificates have not been and will not be registered under the Securities Act or registered or qualified under any applicable state securities laws, (B) neither the Purchaser nor any other party is obligated so to register or qualify the Seller's Residual Interest Certificates and (C) neither the Seller's Residual Interest Certificates nor any security issued in exchange therefor or in lieu thereof may be resold or transferred unless it is (1) registered pursuant to the Securities Act and registered or qualified pursuant to any applicable state securities laws or (2) sold or transferred in a transaction which is exempt from such registration and qualification and the Certificate Registrar has received the certifications and/or opinions of counsel required by the Pooling and Servicing Agreement.
(iv) The Seller understands that it may not sell or otherwise transfer the Seller's Residual Interest Certificates, any security issued in exchange therefor or in lieu thereof or any interest in the foregoing except in compliance with the provisions of Section 5.02 of the Pooling and Servicing Agreement, which provisions it has or, as of the Closing Date, will have carefully reviewed, and that the Seller's Residual Interest Certificates will bear legends that identify the transfer restrictions to which such Certificates are subject.
(v) Neither the Seller nor anyone acting on its behalf has (A) offered, transferred, pledged, sold or otherwise disposed of any Seller's Residual Interest Certificate, any interest in a Seller's Residual Interest Certificate or any other similar security to any person in any manner, (B) solicited any offer to buy or accept a transfer, pledge or other disposition of any Seller's Residual Interest Certificate, any interest in a Seller's Residual Interest Certificate or any other similar security from any person in any manner, (C) otherwise approached or negotiated with respect to any Seller's Residual Interest Certificate, any interest in a Seller's Residual Interest Certificate or any other similar security with any person in any manner, (D) made any general solicitation by means of general advertising or in any other manner, or (E) taken any other action, that (in the case of any of the acts described in clauses (A) through (E) above) would constitute a distribution of the Seller's Residual Interest Certificates under the Securities Act, would render the disposition of the Seller's Residual Interest Certificates a violation of Section 5 of the Securities Act or any state securities law or would require registration or qualification of the Seller's Residual Interest Certificates pursuant thereto. The Seller will not act, nor has it authorized nor will it authorize any person to act, in any manner set forth in the foregoing sentence with respect to the Seller's Residual Interest Certificates, any interest in the Seller's Residual Interest Certificates or any other similar security.
(vi) The Seller has been furnished with all information regarding (A) the Purchaser, (B) the Seller's Residual Interest Certificates and distributions thereon, (C) the nature, performance and servicing of the Other Loans, (D) the Pooling and Servicing Agreement and the Trust Fund, and (E) all related matters, that it has requested.
(vii) The Seller is either (a) a "qualified institutional buyer" within the meaning of Rule 144A under the Securities Act or (b) Except an "accredited investor" as defined in any of paragraphs (1), (2), (3) and (7) of Rule 501(a) under the Securities Act or an entity in which all its equity owners are "accredited investors" as defined in such paragraphs and has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Seller's Residual Interest Certificates. The Seller has sought such accounting, legal and tax advice as it has considered necessary to make an informed investment decision; and the Seller is able to bear the economic risks of such an investment and can afford a complete loss of such investment.
(viii) The Seller is not a Plan and is not directly or indirectly acquiring the Seller's Residual Interest Certificates on behalf of, as named fiduciary of, as trustee of or with assets of a Plan.
(ix) The Seller is a United States Tax Person and is not a Disqualified Organization.
(b) The Seller hereby makes, for the benefit of the Purchaser, with respect to the Mortgage Loan, as of the Closing Date or as of such other date expressly set forth therein, each of the representations and warranties set forth on Exhibit M attached B hereto, Seller has not received from any governmental authority written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any violation of any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable to the Property, or any part thereof, that will not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change to the zoning classification or any proceedings to widen or realign any streets or highways adjacent to the Property or of any condemnation proceedings.
(c) To The Seller intends to transfer the Seller’s actual knowledge's Residual Interest Certificates to JP Morgan Chase Banx, (i) Xxxxxxax Xxxociation on or about the operating statementsClosing Date; and, income and expense reports and all other contracts or documents required to be delivered to Purchaser pursuant to this Agreement are true, correct and complete copies; and (ii) all contracts or documents required to be delivered to Purchaser pursuant to this Agreement are in full force and effect, without material default by any party and without any right of set-off except as disclosed in writing at the time of such delivery.
(d) There is no master lease of the Property to any affiliate of Seller, or if such master lease exists, Seller shall cause such master lease to be terminated at Closing without Purchaser paying any termination fee. The Rent Roll attached hereto as Exhibit B is true, correct and complete in all material respects as of the date set forth on the Rent Roll. As of the Closingconnection therewith, the Rent Roll delivered at the Closing Seller will be true, correct and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default by any party and without any right of setoff, except as expressly provided by the terms of such Leases or as disclosed on the Rent Roll attached hereto. The copies of the Leases and other agreements comply with the tenants under the Leases (the “Tenants”) delivered to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating to the Real Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real Property.
(e) Exhibit J attached hereto is a true and complete schedule of all of the Contracts (as hereinafter defined in requirements of Section 7), true, complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy 5.02 of the management agreement currently Pooling and Servicing Agreement, as in effect with respect to on the Property. To Seller’s actual knowledgeClosing Date, the Contracts are in full force and effect, without material default by any party and without any claims made for the right of setoff, except as expressly provided by the terms of such Contracts or as disclosed to Purchaser in writing at the time of such deliveryapplicable law. The Contracts constitute Seller hereby directs the entire agreements with such vendors relating Purchaser to cause the Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excluding, however, the Leases and Permitted Encumbrances) affecting the Property which will survive the Closing.
(f) At the Closing, there will be no outstanding contracts made by Seller for the construction or repair of any improvements to the Improvements which have not been fully paid for, and Seller shall cause Seller's Residual Interest Certificates to be discharged all mechanics’ or materialmen’s liens arising from any labor or materials furnished to registered in the Improvements prior to the Closingname of JP Morgan Chase Banx, Xxxxxxal Association upon initial issuance.
(g) Except as set forth in Exhibit K attached hereto, there are no pending or, to Seller’s actual knowledge (without any duty of inquiry or investigation), threatened legal proceedings or actions of any kind or character affecting the Property or Seller’s interest therein, including, without limitation, condemnation proceedings.
(h) Seller has not received any actual written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or the Property relating in any way to a Release or compliance with Environmental Laws. For purposes of this Agreement, the phrase “Environmental Laws” shall mean any federal, state or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materials, or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 00
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (LB-UBS Commercial Mortgage Trust 2007-C2)
Representations, Warranties and Covenants of Seller. (a) The Seller hereby represents, represents and warrants to and covenants to Purchaser that with the following matters are true and correct Purchaser, as of the execution of this Agreement and will also be true and correct as of the Closingdate hereof, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx Xxxxxxxxxthat:
(ai) The Seller is a statutory trust corporation duly formed and organized, validly existing and in good standing under the laws of the State of Delaware. California and the Seller has taken all necessary corporate action to authorize the execution, delivery and performance of this Agreement by it, and has the power and authority to execute, deliver and perform this Agreement and all transactions contemplated hereby.
(ii) This Agreement has been, been duly and all the documents executed by Seller which are to be delivered to Purchaser at the Closing will be, duly validly authorized, executed and delivered by Seller the Seller, all requisite action by the Seller's directors and will be legalofficers has been taken in connection therewith, valid and (assuming the due authorization, execution and delivery hereof by the Purchaser) this Agreement constitutes the valid, legal and binding obligations agreement of Seller the Seller, enforceable against the Seller in accordance with their respective terms (its terms, except to the extent that as such enforcement may be limited by applicable (A) laws relating to bankruptcy, insolvency, moratorium and fraudulent transfer, reorganization, receivership, conservatorship or moratorium, (B) other principles laws relating to or limiting affecting the right rights of contracting parties creditors generally, or (C) general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law), will be sufficient to convey title .
(if they purport to do soiii) The execution and delivery of this Agreement by the Seller and the Seller's performance and compliance with the terms of this Agreement will not (A) violate the Seller's certificate of incorporation or bylaws, (B) violate any provisions law or regulation or any administrative decree or order to which it is subject if compliance therewith is necessary (1) to ensure the enforceability of this Agreement or (2) for the Seller to perform its duties and obligations under this Agreement, or (C) constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material contract, agreement or other instrument to which the Seller is a party or to by which the Property or Seller is bound, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or materially and adversely affect its performance hereunder.
(iv) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or other governmental agency or body, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or materially and adversely affect its performance hereunder.
(v) The Seller is not a party to or bound by any agreement or instrument or subject to any certificate of incorporation, bylaws or bound. Subject any other corporate restriction or any judgment, order, writ, injunction, decree, law or regulation that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the ability of the Seller to perform its obligations under this Agreement or that requires the consent of any third person to the satisfaction of Section 8(a)(i) below, no consent, waiver or approval by any third party is required in connection with the execution and delivery by Seller of this Agreement or the performance by the Seller of its obligations under this Agreement (except to the extent such consent has been obtained).
(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 or the consummation of the transactions contemplated by this Agreement except as have previously been obtained, and no bulk sale law applies to such transactions.
(vii) None of the sale of the Mortgage Loans by the Seller, the transfer of the Mortgage Loans to the Trustee, and the execution, delivery or performance of this Agreement by the Seller, results or will result in the creation or imposition of any lien on any of the Seller's assets or property that would have a material adverse effect upon the Seller's ability to perform its duties and obligations under this Agreement or materially impair the ability of the Purchaser to be performed realize on the Mortgage Loans.
(viii) There is no action, suit, proceeding or investigation pending or to the knowledge of the Seller, threatened against the Seller in any court or by or before any other governmental agency or instrumentality which would, in the Seller's good faith and reasonable judgment, prohibit its entering into this Agreement or materially and adversely affect the validity of this Agreement or the performance by the Seller of its obligations under this Agreement.
(bix) Except Under generally accepted accounting principles ("GAAP") and for federal income tax purposes, the Seller will report the transfer of the Mortgage Loans to the Purchaser as set forth on Exhibit M attached hereto, a sale of the Mortgage Loans to the Purchaser in exchange for consideration consisting of a cash amount equal to the Purchase Consideration. The consideration received by the Seller has not received from any governmental authority written noticeupon the sale of the Mortgage Loans to the Purchaser will constitute at least reasonably equivalent value and fair consideration for the Mortgage Loans. The Seller will be solvent at all relevant times prior to, and Seller has no actual knowledge (without any duty will not be rendered insolvent by, the sale of inquiry or investigation) of any violation of any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable the Mortgage Loans to the Property, or any part thereof, that will Purchaser. The Seller is not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change selling the Mortgage Loans to the zoning classification Purchaser with any intent to hinder, delay or defraud any proceedings to widen or realign any streets or highways adjacent to of the Property or creditors of any condemnation proceedingsthe Seller.
(cx) To Seller’s actual knowledgeThe prospectus supplement dated August 17, 2007 (i) the operating statements"Prospectus Supplement"), income and expense reports and which supplements the base prospectus dated May 10, 2007 (the "Prospectus"), contains all other contracts or documents the information that is required to be delivered to Purchaser provided in respect of the Seller (that arise from its role as "sponsor" (within the meaning of Regulation AB)), the Mortgage Loans, the related Mortgagors and the related Mortgaged Properties pursuant to this Agreement are true, correct and complete copies; and (ii) all contracts or documents required to be delivered to Purchaser pursuant to this Agreement are in full force and effect, without material default by any party and without any right of set-off except as disclosed in writing at the time of such delivery.
(d) There is no master lease of the Property to any affiliate of Seller, or if such master lease exists, Seller shall cause such master lease to be terminated at Closing without Purchaser paying any termination fee. The Rent Roll attached hereto as Exhibit B is true, correct and complete in all material respects as of the date set forth on the Rent Roll. As of the Closing, the Rent Roll delivered at the Closing will be true, correct and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default by any party and without any right of setoff, except as expressly provided by the terms of such Leases or as disclosed on the Rent Roll attached hereto. The copies of the Leases and other agreements with the tenants under the Leases (the “Tenants”) delivered to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating to the Real Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real Property.
(e) Exhibit J attached hereto is a true and complete schedule of all of the Contracts (as hereinafter defined in Section 7), true, complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy of the management agreement currently in effect with respect to the Property. To Seller’s actual knowledge, the Contracts are in full force and effect, without material default by any party and without any claims made for the right of setoff, except as expressly provided by the terms of such Contracts or as disclosed to Purchaser in writing at the time of such delivery. The Contracts constitute the entire agreements with such vendors relating to the Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excluding, however, the Leases and Permitted Encumbrances) affecting the Property which will survive the Closing.
(f) At the Closing, there will be no outstanding contracts made by Seller for the construction or repair of any improvements to the Improvements which have not been fully paid for, and Seller shall cause to be discharged all mechanics’ or materialmen’s liens arising from any labor or materials furnished to the Improvements prior to the Closing.
(g) Except as set forth in Exhibit K attached hereto, there are no pending or, to Seller’s actual knowledge (without any duty of inquiry or investigation), threatened legal proceedings or actions of any kind or character affecting the Property or Seller’s interest therein, including, without limitation, condemnation proceedings.
(h) Seller has not received any actual written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or the Property relating in any way to a Release or compliance with Environmental LawsRegulation AB. For purposes purpose of this Agreement, the phrase “Environmental Laws” "Regulation AB" shall mean any federalSubpart 229.1100 - Asset Backed Securities (Regulation AB), state 17 C.F.R. ss.ss.229.1100-229.1123, as such may be amended from time to time, and subject to such clarification and interpretation as have been provided by the Commission in the adopting release (Asset-Backed Securities, Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506-1,631 (Jan. 7, 2005)) or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materialsby the staff of the Commission, or as may be provided by the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 00Commission or its staff from time to time.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (ML-CFC Commercial Mortgage Trust 2007-8)
Representations, Warranties and Covenants of Seller. (a) The Seller hereby represents, represents and warrants to and covenants to Purchaser that with the following matters are true and correct Purchaser, as of the execution of this Agreement and will also be true and correct as of the Closingdate hereof, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx Xxxxxxxxxthat:
(ai) The Seller is a statutory trust corporation duly formed and organized, validly existing and in good standing under the laws of the State of Delaware. Delaware and the Seller has taken all necessary corporate action to authorize the execution, delivery and performance of this Agreement by it, and has the power and authority to execute, deliver and perform this Agreement and all transactions contemplated hereby.
(ii) This Agreement has been, been duly and all the documents executed by Seller which are to be delivered to Purchaser at the Closing will be, duly validly authorized, executed and delivered by Seller the Seller, all requisite action by the Seller's directors and will be legalofficers has been taken in connection therewith, valid and (assuming the due authorization, execution and delivery hereof by the Purchaser) this Agreement constitutes the valid, legal and binding obligations agreement of Seller the Seller, enforceable against the Seller in accordance with their respective terms (its terms, except to the extent that as such enforcement may be limited by applicable (A) laws relating to bankruptcy, insolvency, moratorium and fraudulent transfer, reorganization, receivership or moratorium, (B) other principles laws relating to or limiting affecting the right rights of contracting parties creditors generally, or (C) general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law), will be sufficient to convey title .
(if they purport to do soiii) The execution and delivery of this Agreement by the Seller and the Seller's performance and compliance with the terms of this Agreement will not (A) violate the Seller's certificate of incorporation or bylaws, (B) violate any provisions law or regulation or any administrative decree or order to which it is subject or (C) constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material contract, agreement or other instrument to which the Seller is a party or to by which the Property or Seller is bound, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or materially and adversely affect its performance hereunder.
(iv) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or other governmental agency or body, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or materially and adversely affect its performance hereunder.
(v) The Seller is not a party to or bound by any agreement or instrument or subject to any certificate of incorporation, bylaws or bound. Subject any other corporate restriction or any judgment, order, writ, injunction, decree, law or regulation that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the ability of the Seller to perform its obligations under this Agreement or that requires the consent of any third person to the satisfaction of Section 8(a)(i) below, no consent, waiver or approval by any third party is required in connection with the execution and delivery by Seller of this Agreement or the performance by the Seller of its obligations under this Agreement (except to the extent such consent has been obtained).
(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 or the consummation of the transactions contemplated by this Agreement except as have previously been obtained, and no bulk sale law applies to such transactions.
(vii) None of the sale of the Mortgage Loans by the Seller, the transfer of the Mortgage Loans to the Trustee, and the execution, delivery or performance of this Agreement by the Seller, results or will result in the creation or imposition of any lien on any of the Seller's assets or property that would have a material adverse effect upon the Seller's ability to perform its duties and obligations under this Agreement or materially impair the ability of the Purchaser to be performed realize on the Mortgage Loans.
(viii) There is no action, suit, proceeding or investigation pending or to the knowledge of the Seller, threatened against the Seller in any court or by or before any other governmental agency or instrumentality which would, in the Seller's good faith and reasonable judgment, prohibit its entering into this Agreement or materially and adversely affect the validity of this Agreement or the performance by the Seller of its obligations under this Agreement.
(ix) Under generally accepted accounting principles ("GAAP") and for federal income tax purposes, the Seller will report the transfer of the Mortgage Loans to the Purchaser as a sale of the Mortgage Loans to the Purchaser in exchange for consideration consisting of a cash amount equal to the Purchase Consideration. The consideration received by the Seller upon the sale of the Mortgage Loans to the Purchaser will constitute at least reasonably equivalent value and fair consideration for the Mortgage Loans. The Seller will be solvent at all relevant times prior to, and will not be rendered insolvent by, the sale of the Mortgage Loans to the Purchaser. The Seller is not selling the Mortgage Loans to the Purchaser with any intent to hinder, delay or defraud any of the creditors of the Seller.
(x) Each Mortgage Loan was either:
1. 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 (any of the foregoing, including the Seller, a "Qualified Originator"); or
2. originated by a person that is not a Qualified Originator (a "Non-Qualified Originator"), in which case,
(A) such Mortgage Loan was underwritten in accordance with standards established by the Qualified Originator (which standards are the same as the Seller's in all material respects), using application forms and related credit documents approved by the Qualified Originator;
(B) the Qualified Originator approved each application and related credit documents before a commitment by the Non-Qualified Originator was issued, and no such commitment was issued until the Qualified Originator agreed to fund such Mortgage Loan;
(C) the Mortgage Loan was originated by the Non-Qualified Originator pursuant to an ongoing, standing relationship with the Qualified Originator; and
(D) the closing documents for the Mortgage Loan were prepared on forms approved by the Qualified Originator, and, pursuant to the Non-Qualified Originator's ongoing, standing relationship with the Qualified Originator, then
(I) such closing documents reflect the Qualified Originator as the original mortgagee, and such Mortgage Loan was actually funded by the Qualified Originator at the closing thereof;
(II) such closing documents reflect the Non-Qualified Originator as the original mortgagee, but include assignment documents executed by the Non- Qualified Originator in favor of the Qualified Originator at the time of the closing of the Mortgage Loan, reflecting the Qualified Originator as the successor and assign to the Non-Qualified Originator, and the Mortgage Loan was funded initially by the Non-Qualified Originator at the closing thereof and then acquired by the Qualified Originator from such Non-Qualified Originator; or
(III) such closing documents reflect the Non-Qualified Originator as the original mortgagee, but include assignment documents executed by the Non- Qualified Originator in favor of the Qualified Originator at the time of the closing of the Mortgage Loan, reflecting the Qualified Originator as the successor and assign to the Non-Qualified Originator, and the Mortgage Loan was funded initially by the Qualified Originator at the closing thereof and then acquired by the Qualified Originator from such Non-Qualified Originator. Each Mortgaged Property consists of one or more separate tax parcels of real property upon which is located one or more commercial structures and otherwise meets the requirements for eligibility under the Secondary Mortgage Market Enhancement Act of 1984 for commercial property.
(b) Except The Seller hereby makes the representations and warranties contained in Schedule I hereto for the benefit of the Purchaser and the Trustee for the benefit of the Certificateholders as of the Closing Date (unless a different date is specified therein), with respect to (and solely with respect to) each Mortgage Loan, subject, however, to the exceptions set forth on Exhibit M attached hereto, Seller has not received from any governmental authority written notice, and Seller has no actual knowledge (without any duty Annex A to Schedule I of inquiry or investigation) of any violation of any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable to the Property, or any part thereof, that will not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change to the zoning classification or any proceedings to widen or realign any streets or highways adjacent to the Property or of any condemnation proceedingsthis Agreement.
(c) To Seller’s actual knowledgeIf the Seller discovers or receives written notice of a Document Defect or a Breach relating to a Mortgage Loan pursuant to Section 2.03(a) of the Pooling and Servicing Agreement, then the Seller shall, not later than 90 days from such discovery or receipt of such notice (or, in the case of a Document Defect or Breach relating to a Mortgage Loan not being a "qualified mortgage" within the meaning of the REMIC Provisions (a "Qualified Mortgage"), not later than 90 days from any party to the Pooling and Servicing Agreement discovering such Document Defect or Breach, provided the Seller receives such notice in a timely manner), if such Document Defect or Breach shall materially and adversely affect the value of the related Mortgage Loan or the interest of the Certificateholders therein, cure such Document Defect or Breach, as the case may be, in all material respects, which shall include payment of losses and any Additional Trust Fund Expenses associated therewith or, if such Document Defect or Breach (other than omissions due solely to a document not having been returned by the related recording office) cannot be cured within such 90-day period, (i) repurchase the operating statementsaffected Mortgage Loan (which, income for the purposes of this clause (i), shall include an REO Loan) at the applicable Purchase Price (as defined in the Pooling and expense reports and all other contracts Servicing Agreement) not later than the end of such 90-day period or documents required to be delivered to Purchaser pursuant to this Agreement are true, correct and complete copies; and (ii) all contracts or documents required substitute a Qualified Substitute Mortgage Loan for such affected Mortgage Loan (which, for purposes of this clause (ii), shall include an REO Loan) not later than the end of such 90-day period (and in no event later than the second anniversary of the Closing Date) and pay the Master Servicer for deposit into the Collection Account, any Substitution Shortfall Amount in connection therewith; provided, however, that, unless the breach would cause the Mortgage Loan not to be a Qualified Mortgage, if such Document Defect or Breach is capable of being cured but not within such 90-day period and the Seller has commenced and is diligently proceeding with the cure of such Document Defect or Breach within such 90-day period, the Seller shall have an additional 90 days to complete such cure (or, failing such cure, to repurchase or substitute the related Mortgage Loan (which, for the purpose of such repurchase or substitution, shall include an REO Loan)); and provided, further, that with respect to such additional 90-day period, the Seller shall have delivered an officer's certificate to Purchaser pursuant the Trustee setting forth the reason such Document Defect or Breach is not capable of being cured within the initial 90-day period and what actions the Seller is pursuing in connection with the cure thereof and stating that the Seller anticipates that such Document Defect or Breach will be cured within the additional 90-day period; and provided, further, that no Document Defect (other than with respect to this Agreement are the Specially Designated Mortgage Loan Documents) shall be considered to materially and adversely affect the interests of the Certificateholders or the value of the related Mortgage Loan unless the document with respect to which the Document Defect exists is required in full force and effectconnection with an imminent enforcement of the mortgagee's rights or remedies under the related Mortgage Loan, without material default defending any claim asserted by any borrower or third party with respect to the Mortgage Loan, establishing the validity or priority of any lien or any collateral securing the Mortgage Loan or for any immediate servicing obligations.
(1) the weighted average debt service coverage ratio for all the remaining Crossed Loans for the four calendar quarters immediately preceding such repurchase or substitution is not less than the weighted average debt service coverage ratio for all such Crossed Loans, including the affected Crossed Loan, for the four calendar quarters immediately preceding such repurchase or substitution, and without any right of set(2) the weighted average loan to-off except as disclosed in writing value ratio for the remaining Crossed Loans determined at the time of such delivery.
(d) There is no master lease repurchase or substitution based upon an appraisal obtained by the Special Servicer at the expense of the Property related Seller shall not be greater than the weighted average loan-to-value ratio for all such Crossed Loans, including the affected Crossed Loan; provided, that if such debt service coverage and loan-to-value criteria are satisfied and any Crossed Loan (that is not the Crossed Loan directly affected by the subject Breach or Document Defect) is not so materially and adversely affected and therefore is not so repurchased or substituted, then such Crossed Loan shall be released from its cross-collateralization and cross-default provision so long as such Crossed Loan (that is not the Crossed Loan directly affected by the subject Breach or Document Defect) is held in the Trust Fund; and provided, further, that the repurchase of less than all such Crossed Loans and the release of any Crossed Loan from a cross-collateralization and cross-default provision shall be subject to any affiliate the delivery by the Seller to the Trustee, at the expense of the Seller, of an Opinion of Counsel to the effect that such release would not cause either of REMIC I or REMIC II to fail to qualify as a REMIC under the Code or result in the imposition of any tax on "prohibited transactions" or "contributions" after the Startup Day under the REMIC Provisions; and provided, further, that the Controlling Class Representative (if such master lease existsone is then acting) shall have consented to the repurchase or substitution of the affected Crossed Loan, which consent shall not be unreasonably withheld. For a period of two years from the Closing Date, so long as there remains any Mortgage File relating to a Mortgage Loan as to which there is any uncured Document Defect or Breach known to the Seller, the Seller shall cause such master lease to be terminated at Closing without Purchaser paying any termination fee. The Rent Roll attached hereto as Exhibit B is trueprovide, correct and complete in all material respects as of the date set forth on the Rent Roll. As of the Closingonce every ninety days, the Rent Roll delivered at the Closing will be true, correct and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default by any party and without any right of setoff, except as expressly provided by the terms of such Leases or as disclosed on the Rent Roll attached hereto. The copies of the Leases and other agreements with the tenants under the Leases (the “Tenants”) delivered to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating officer's certificate to the Real Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real Property.
(e) Exhibit J attached hereto is a true and complete schedule of all of the Contracts (Trustee described above as hereinafter defined in Section 7), true, complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy of the management agreement currently in effect with respect to the Property. To Seller’s actual knowledge, the Contracts are in full force reasons such Document Defect or Breach remains uncured and effect, without material default by any party and without any claims made for the right of setoff, except as expressly provided by the terms of such Contracts or as disclosed to Purchaser in writing at the time of such delivery. The Contracts constitute the entire agreements with such vendors relating to the Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements as have been delivered actions being taken to Purchaser, and there are no other agreements with any third parties (excludingpursue cure; provided, however, that, without limiting the Leases effect of the foregoing provisions of this Section 3(c), if such Document Defect or Breach shall materially and Permitted Encumbrances) affecting adversely affect the Property which will survive value of such Mortgage Loan or the Closing.
interests of the holders of the Certificates therein (f) At the Closing, there will be no outstanding contracts made by Seller for the construction or repair of any improvements subject to the Improvements which have not been fully paid forlast proviso in the second preceding sentence), and the Seller shall cause to be discharged in all mechanics’ cases on or materialmen’s liens arising from any labor or materials furnished to the Improvements prior to the Closingsecond anniversary of the Closing Date either cause such Document Defect or Breach to be cured or repurchase or substitute for the affected Mortgage Loan.
(g) Except as set forth in Exhibit K attached hereto, there are no pending or, to Seller’s actual knowledge (without any duty of inquiry or investigation), threatened legal proceedings or actions of any kind or character affecting the Property or Seller’s interest therein, including, without limitation, condemnation proceedings.
(h) Seller has not received any actual written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or the Property relating in any way to a Release or compliance with Environmental Laws. For purposes of this Agreement, the phrase “Environmental Laws” shall mean any federal, state or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materials, or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 00
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Merrill Lynch Mortgage Trust 2004-Bpc1)
Representations, Warranties and Covenants of Seller. (a) The Seller hereby represents, represents and warrants to and covenants to Purchaser that with the following matters are true and correct Purchaser, as of the execution of this Agreement and will also be true and correct as of the Closingdate hereof, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx Xxxxxxxxxthat:
(ai) The Seller is a statutory trust national banking association duly formed and organized, validly existing and in good standing under the laws of the State United States and the Seller has taken all necessary corporate action to authorize the execution, delivery and performance of Delaware. this Agreement by it, and has the power and authority to execute, deliver and perform this Agreement and all transactions contemplated hereby.
(ii) This Agreement has been, been duly and all the documents executed by Seller which are to be delivered to Purchaser at the Closing will be, duly validly authorized, executed and delivered by Seller the Seller, all requisite action by the Seller's directors and will be legalofficers has been taken in connection therewith, valid and (assuming the due authorization, execution and delivery hereof by the Purchaser) this Agreement constitutes the valid, legal and binding obligations agreement of Seller the Seller, enforceable against the Seller in accordance with their respective terms (its terms, except to the extent that as such enforcement may be limited by applicable (A) laws relating to bankruptcy, insolvency, moratorium and fraudulent transfer, reorganization, receivership or moratorium, (B) other principles laws relating to or limiting affecting the right rights of contracting parties creditors generally, or (C) general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law), will be sufficient to convey title .
(if they purport to do soiii) The execution and delivery of this Agreement by the Seller and the Seller's performance and compliance with the terms of this Agreement will not (A) violate the Seller's charter or bylaws, (B) violate any provisions law or regulation or any administrative decree or order to which it is subject or (C) constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material contract, agreement or other instrument to which the Seller is a party or to by which the Property or Seller is bound, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or materially and adversely affect its performance hereunder.
(iv) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or other governmental agency or body, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or materially and adversely affect its performance hereunder.
(v) The Seller is not a party to or bound by any agreement or instrument or subject to any charter, bylaws or bound. Subject any other corporate restriction or any judgment, order, writ, injunction, decree, law or regulation that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the ability of the Seller to perform its obligations under this Agreement or that requires the consent of any third person to the satisfaction of Section 8(a)(i) below, no consent, waiver or approval by any third party is required in connection with the execution and delivery by Seller of this Agreement or the performance by the Seller of its obligations under this Agreement (except to the extent such consent has been obtained).
(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 or the consummation of the transactions contemplated by this Agreement except as have previously been obtained, and no bulk sale law applies to such transactions.
(vii) None of the sale of the Mortgage Loans by the Seller, the transfer of the Mortgage Loans to the Trustee, and the execution, delivery or performance of this Agreement by the Seller, results or will result in the creation or imposition of any lien on any of the Seller's assets or property that would have a material adverse effect upon the Seller's ability to perform its duties and obligations under this Agreement or materially impair the ability of the Purchaser to be performed realize on the Mortgage Loans.
(viii) There is no action, suit, proceeding or investigation pending or to the knowledge of the Seller, threatened against the Seller in any court or by or before any other governmental agency or instrumentality which would, in the Seller's good faith and reasonable judgment, prohibit its entering into this Agreement or materially and adversely affect the validity of this Agreement or the performance by the Seller of its obligations under this Agreement.
(ix) Under generally accepted accounting principles ("GAAP") and for federal income tax purposes, the Seller will report the transfer of the Mortgage Loans to the Purchaser as a sale of the Mortgage Loans to the Purchaser in exchange for consideration consisting of a cash amount equal to the Purchase Consideration. The consideration received by the Seller upon the sale of the Mortgage Loans to the Purchaser will constitute at least reasonably equivalent value and fair consideration for the Mortgage Loans. The Seller will be solvent at all relevant times prior to, and will not be rendered insolvent by, the sale of the Mortgage Loans to the Purchaser. The Seller is not selling the Mortgage Loans to the Purchaser with any intent to hinder, delay or defraud any of the creditors of the Seller.
(x) Each Mortgage Loan was either:
1. 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 (any of the foregoing, including the Seller, a "Qualified Originator"); or
2. originated by a person that is not a Qualified Originator (a "Non-Qualified Originator"), in which case,
(A) such Mortgage Loan was underwritten in accordance with standards established by the Qualified Originator (which standards are the same as the Seller's in all material respects), using application forms and related credit documents approved by the Qualified Originator;
(B) the Qualified Originator approved each application and related credit documents before a commitment by the Non-Qualified Originator was issued, and no such commitment was issued until the Qualified Originator agreed to fund such Mortgage Loan;
(C) the Mortgage Loan was originated by the Non-Qualified Originator pursuant to an ongoing, standing relationship with the Qualified Originator; and
(D) the closing documents for the Mortgage Loan were prepared on forms approved by the Qualified Originator, and, pursuant to the Non-Qualified Originator's ongoing, standing relationship with the Qualified Originator, then
(I) such closing documents reflect the Qualified Originator as the original mortgagee, and such Mortgage Loan was actually funded by the Qualified Originator at the closing thereof;
(II) such closing documents reflect the Non-Qualified Originator as the original mortgagee, but include assignment documents executed by the Non- Qualified Originator in favor of the Qualified Originator at the time of the closing of the Mortgage Loan, reflecting the Qualified Originator as the successor and assign to the Non-Qualified Originator, and the Mortgage Loan was funded initially by the Non-Qualified Originator at the closing thereof and then acquired by the Qualified Originator from such Non-Qualified Originator; or
(III) such closing documents reflect the Non-Qualified Originator as the original mortgagee, but include assignment documents executed by the Non- Qualified Originator in favor of the Qualified Originator at the time of the closing of the Mortgage Loan, reflecting the Qualified Originator as the successor and assign to the Non-Qualified Originator, and the Mortgage Loan was funded initially by the Qualified Originator at the closing thereof and then acquired by the Qualified Originator from such Non-Qualified Originator. Each Mortgaged Property consists of one or more separate tax parcels of real property upon which is located one or more commercial structures and otherwise meets the requirements for eligibility under the Secondary Mortgage Market Enhancement Act of 1984 for commercial property.
(b) Except The Seller hereby makes the representations and warranties contained in Schedule I hereto for the benefit of the Purchaser and the Trustee for the benefit of the Certificateholders as of the Closing Date (unless a different date is specified therein), with respect to (and solely with respect to) each Mortgage Loan, subject, however, to the exceptions set forth on Exhibit M attached hereto, Seller has not received from any governmental authority written notice, and Seller has no actual knowledge (without any duty Annex A to Schedule I of inquiry or investigation) of any violation of any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable to the Property, or any part thereof, that will not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change to the zoning classification or any proceedings to widen or realign any streets or highways adjacent to the Property or of any condemnation proceedingsthis Agreement.
(c) To Seller’s actual knowledgeIf the Seller discovers or receives written notice of a Document Defect or a Breach relating to a Mortgage Loan pursuant to Section 2.03(a) of the Pooling and Servicing Agreement, then the Seller shall, not later than 90 days from such discovery or receipt of such notice (or, in the case of a Document Defect or Breach relating to a Mortgage Loan not being a "qualified mortgage" within the meaning of the REMIC Provisions (a "Qualified Mortgage"), not later than 90 days from any party to the Pooling and Servicing Agreement discovering such Document Defect or Breach, provided the Seller receives such notice in a timely manner), if such Document Defect or Breach shall materially and adversely affect the value of the related Mortgage Loan or the interest of the Certificateholders therein, cure such Document Defect or Breach, as the case may be, in all material respects, which shall include payment of losses and any Additional Trust Fund Expenses associated therewith or, if such Document Defect or Breach (other than omissions due solely to a document not having been returned by the related recording office) cannot be cured within such 90-day period, (i) repurchase the operating statementsaffected Mortgage Loan (which, income for the purposes of this clause (i), shall include an REO Loan) at the applicable Purchase Price (as defined in the Pooling and expense reports and all other contracts Servicing Agreement) not later than the end of such 90-day period or documents required to be delivered to Purchaser pursuant to this Agreement are true, correct and complete copies; and (ii) all contracts or documents required substitute a Qualified Substitute Mortgage Loan for such affected Mortgage Loan (which, for purposes of this clause (ii), shall include an REO Loan) not later than the end of such 90-day period (and in no event later than the second anniversary of the Closing Date) and pay the Master Servicer for deposit into the Collection Account, any Substitution Shortfall Amount in connection therewith; provided, however, that, unless the breach would cause the Mortgage Loan not to be a Qualified Mortgage, if such Document Defect or Breach is capable of being cured but not within such 90-day period and the Seller has commenced and is diligently proceeding with the cure of such Document Defect or Breach within such 90-day period, the Seller shall have an additional 90 days to complete such cure (or, failing such cure, to repurchase or substitute the related Mortgage Loan (which, for the purpose of such repurchase or substitution, shall include an REO Loan)); and provided, further, that with respect to such additional 90-day period, the Seller shall have delivered an officer's certificate to Purchaser pursuant the Trustee setting forth the reason such Document Defect or Breach is not capable of being cured within the initial 90-day period and what actions the Seller is pursuing in connection with the cure thereof and stating that the Seller anticipates that such Document Defect or Breach will be cured within the additional 90-day period; and provided, further, that no Document Defect (other than with respect to this Agreement are the Specially Designated Mortgage Loan Documents) shall be considered to materially and adversely affect the interests of the Certificateholders or the value of the related Mortgage Loan unless the document with respect to which the Document Defect exists is required in full force and effectconnection with an imminent enforcement of the mortgagee's rights or remedies under the related Mortgage Loan, without material default defending any claim asserted by any borrower or third party with respect to the Mortgage Loan, establishing the validity or priority of any lien or any collateral securing the Mortgage Loan or for any immediate servicing obligations.
(1) the weighted average debt service coverage ratio for all the remaining Crossed Loans for the four calendar quarters immediately preceding such repurchase or substitution is not less than the weighted average debt service coverage ratio for all such Crossed Loans, including the affected Crossed Loan, for the four calendar quarters immediately preceding such repurchase or substitution, and without any right of set(2) the weighted average loan to-off except as disclosed in writing value ratio for the remaining Crossed Loans determined at the time of such delivery.
(d) There is no master lease repurchase or substitution based upon an appraisal obtained by the Special Servicer at the expense of the Property related Seller shall not be greater than the weighted average loan-to-value ratio for all such Crossed Loans, including the affected Crossed Loan; provided, that if such debt service coverage and loan-to-value criteria are satisfied and any Crossed Loan (that is not the Crossed Loan directly affected by the subject Breach or Document Defect) is not so materially and adversely affected and therefore is not so repurchased or substituted, then such Crossed Loan shall be released from its cross-collateralization and cross-default provision so long as such Crossed Loan (that is not the Crossed Loan directly affected by the subject Breach or Document Defect) is held in the Trust Fund; and provided, further, that the repurchase of less than all such Crossed Loans and the release of any Crossed Loan from a cross-collateralization and cross-default provision shall be subject to any affiliate the delivery by the Seller to the Trustee, at the expense of the Seller, of an Opinion of Counsel to the effect that such release would not cause either of REMIC I or REMIC II to fail to qualify as a REMIC under the Code or result in the imposition of any tax on "prohibited transactions" or "contributions" after the Startup Day under the REMIC Provisions; and provided, further, that the Controlling Class Representative (if such master lease existsone is then acting) shall have consented to the repurchase or substitution of the affected Crossed Loan, which consent shall not be unreasonably withheld. For a period of two years from the Closing Date, so long as there remains any Mortgage File relating to a Mortgage Loan as to which there is any uncured Document Defect or Breach known to the Seller, the Seller shall cause such master lease to be terminated at Closing without Purchaser paying any termination fee. The Rent Roll attached hereto as Exhibit B is trueprovide, correct and complete in all material respects as of the date set forth on the Rent Roll. As of the Closingonce every ninety days, the Rent Roll delivered at the Closing will be true, correct and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default by any party and without any right of setoff, except as expressly provided by the terms of such Leases or as disclosed on the Rent Roll attached hereto. The copies of the Leases and other agreements with the tenants under the Leases (the “Tenants”) delivered to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating officer's certificate to the Real Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real Property.
(e) Exhibit J attached hereto is a true and complete schedule of all of the Contracts (Trustee described above as hereinafter defined in Section 7), true, complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy of the management agreement currently in effect with respect to the Property. To Seller’s actual knowledge, the Contracts are in full force reasons such Document Defect or Breach remains uncured and effect, without material default by any party and without any claims made for the right of setoff, except as expressly provided by the terms of such Contracts or as disclosed to Purchaser in writing at the time of such delivery. The Contracts constitute the entire agreements with such vendors relating to the Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements as have been delivered actions being taken to Purchaser, and there are no other agreements with any third parties (excludingpursue cure; provided, however, that, without limiting the Leases effect of the foregoing provisions of this Section 3(c), if such Document Defect or Breach shall materially and Permitted Encumbrances) affecting adversely affect the Property which will survive value of such Mortgage Loan or the Closing.
interests of the holders of the Certificates therein (f) At the Closing, there will be no outstanding contracts made by Seller for the construction or repair of any improvements subject to the Improvements which have not been fully paid forlast proviso in the second preceding sentence), and the Seller shall cause to be discharged in all mechanics’ cases on or materialmen’s liens arising from any labor or materials furnished to the Improvements prior to the Closingsecond anniversary of the Closing Date either cause such Document Defect or Breach to be cured or repurchase or substitute for the affected Mortgage Loan.
(g) Except as set forth in Exhibit K attached hereto, there are no pending or, to Seller’s actual knowledge (without any duty of inquiry or investigation), threatened legal proceedings or actions of any kind or character affecting the Property or Seller’s interest therein, including, without limitation, condemnation proceedings.
(h) Seller has not received any actual written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or the Property relating in any way to a Release or compliance with Environmental Laws. For purposes of this Agreement, the phrase “Environmental Laws” shall mean any federal, state or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materials, or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 00
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Merrill Lynch Mortgage Trust 2004-Bpc1)
Representations, Warranties and Covenants of Seller. (a) The Seller hereby represents, represents and warrants to and covenants to Purchaser that with the following matters are true and correct Purchaser, as of the execution of this Agreement and will also be true and correct as of the Closingdate hereof, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx Xxxxxxxxxthat:
(ai) The Seller is a statutory trust corporation duly formed and organized, validly existing and in good standing under the laws of the State of Delaware. Delaware and Seller has taken all necessary corporate action to authorize the execution, delivery and performance of this Agreement by it, and has the power and authority to execute, deliver and perform this Agreement and all transactions contemplated hereby.
(ii) This Agreement has been, been duly and all the documents executed by Seller which are to be delivered to Purchaser at the Closing will be, duly validly authorized, executed and delivered by the Seller and, assuming due authorization, execution and will be delivery hereof by the Purchaser, constitutes a legal, valid and binding obligations obligation of Seller the Seller, enforceable against the Seller in accordance with their respective terms (its terms, except to the extent that as such enforcement may be limited by applicable bankruptcy, insolvency, reorganization, receivership, moratorium and other laws affecting the enforcement of creditors' rights in general, and by general equity principles relating to (regardless of whether such enforcement is considered in a proceeding in equity or limiting the right of contracting parties generallyat law), will be sufficient and by public policy considerations underlying the securities laws, to convey title (if they the extent that such public policy considerations limit the enforceability of the provisions of this Agreement which purport to do soprovide indemnification from liabilities under applicable securities laws;
(iii) The execution and delivery of this Agreement by the Seller and the Seller's performance and compliance with the terms of this Agreement will not (A) violate the Seller's articles of incorporation or bylaws, (B) violate any provisions law or regulation or any administrative decree or order to which it is subject or (C) constitute a material default (or an event which, with notice or lapse of time, or both, would constitute a material default) under, or result in the breach of, any material contract, agreement or other instrument to which the Seller is a party or to by which the Property or Seller is bound;
(iv) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or other governmental agency or body, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or have consequences that would materially and adversely affect its performance hereunder;
(v) The Seller is not a party to or bound by any agreement or instrument or subject to any articles of association, bylaws or bound. Subject any other corporate restriction or any judgment, order, writ, injunction, decree, law or regulation that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the ability of the Seller to perform its obligations under this Agreement or that requires the consent of any third person to the satisfaction of Section 8(a)(i) below, no consent, waiver or approval by any third party is required in connection with the execution and delivery by Seller of this Agreement or the performance by the Seller of its obligations under this Agreement (except to the extent such consent has been obtained);
(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 or the consummation of the transactions contemplated by this Agreement except as have previously been obtained, and no bulk sale law applies to such transactions;
(vii) No litigation is pending or, to the Seller's knowledge, threatened against the Seller that would, in the Seller's good faith and reasonable judgment, prohibit its entering into this Agreement or materially and adversely affect the performance by the Seller of its obligations to be performed by Seller under this Agreement; and
(viii) Under generally accepted accounting principles ("GAAP") and for federal income tax purposes, the Seller will report the transfer of the Mortgage Loans to the Purchaser as a sale of the Mortgage Loans to the Purchaser in exchange for consideration consisting of a cash amount equal to the Purchase Price. The consideration received by the Seller upon the sale of the Mortgage Loans to the Purchaser will constitute at least reasonably equivalent value and fair consideration for the Mortgage Loans. The Seller will be solvent at all relevant times prior to, and will not be rendered insolvent by, the sale of the Mortgage Loans to the Purchaser. The Seller is not selling the Mortgage Loans to the Purchaser with any intent to hinder, delay or defraud any of the creditors of the Seller.
(b) Except The Seller hereby makes the representations and warranties contained in Schedule I, Schedule II and Schedule III hereto for the benefit of the Purchaser and the Trustee for the benefit of the Certificateholders as set forth on Exhibit M attached heretoof the Closing Date, Seller has not received from any governmental authority written notice, with respect to (and Seller has no actual knowledge (without any duty of inquiry or investigationsolely with respect to) of any violation of any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable to the Property, or any part thereof, that will not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change to the zoning classification or any proceedings to widen or realign any streets or highways adjacent to the Property or of any condemnation proceedingseach Mortgage Loan.
(c) To Seller’s actual knowledgeIf the Seller discovers or receives written notice of a Document Defect or a Breach pursuant to Section 2.03(a) of the Pooling and Servicing Agreement relating to a Mortgage Loan, then the Seller shall not later than 90 days from such discovery or receipt of such notice (or, in the case of a Document Defect or Breach relating to a Mortgage Loan not being a "qualified mortgage" within the meaning of the REMIC Provisions (a "Qualified Mortgage"), not later than 90 days from any party to the Pooling and Servicing Agreement discovering such Document Defect or Breach provided the Seller receives such notice in a timely manner), if such Document Defect or Breach shall materially and adversely affect the value of the related Mortgage Loan or the interest of the Certificateholders therein, cure such Document Defect or Breach, as the case may be, in all material respects, which shall include payment of losses and any Additional Trust Fund Expenses associated therewith or, if such Document Defect or Breach (other than omissions solely due to a document not having been returned by the related recording office) cannot be cured within such 90-day period, (i) repurchase the operating statements, income affected Mortgage Loan at the applicable Purchase Price (as defined in the Pooling and expense reports and all other contracts Servicing Agreement) not later than the end of such 90-day period or documents required to be delivered to Purchaser pursuant to this Agreement are true, correct and complete copies; and (ii) all contracts or documents required substitute a Qualified Substitute Mortgage Loan for such affected Mortgage Loan not later than the end of such 90-day period (and in no event later than the second anniversary of the Closing Date) and pay the Master Servicer for deposit into the Certificate Account, any Substitution Shortfall Amount in connection therewith; provided, however, that unless the breach would cause the Mortgage Loan not to be a Qualified Mortgage, and if such Document Defect or Breach is capable of being cured but not within such 90-day period and the Seller has commenced and is diligently proceeding with the cure of such Document Defect or Breach within such 90-day period, the Seller shall have an additional 90 days to complete such cure (or, failing such cure, to repurchase or substitute the related Mortgage Loan); and provided, further, that with respect to such additional 90-day period the Seller shall have delivered an officer's certificate to the Trustee setting forth the reason such Document Defect or Breach is not capable of being cured within the initial 90-day period and what actions the Seller is pursuing in connection with the cure thereof and stating that the Seller anticipates that such Document Defect or Breach will be cured within the additional 90-day period; and provided; further, that no Document Defect (other than with respect to a Mortgage Note, Mortgage, title insurance policy, Ground Lease or any letter of credit) shall be considered to materially and adversely affect the interests of the Certificateholders or the value of the related Mortgage Loan unless the document with respect to which the Document Defect exists is required in connection with an imminent enforcement of the mortgagee's rights or remedies under the related Mortgage Loan, defending any claim asserted by any borrower or third party with respect to the Mortgage Loan, establishing the validity or priority of any lien or any collateral securing the Mortgage Loan or for any immediate servicing obligations. A Document Defect or Breach as to a Mortgage Loan that is cross-collateralized and cross-defaulted with one or more other Mortgage Loans (each a "Crossed Loan") that materially and adversely affects the value of such other Mortgage Loans, and is not cured as provided for above, shall require the repurchase or substitution of all such cross-collateralized and cross-defaulted Mortgage Loans which are materially and adversely affected by such Document Defect or Breach; provided, that if any Crossed Loan is not so materially and adversely affected and therefore is not so repurchased or substituted, then such Crossed Loan shall be released from its cross-collateralization and cross-default provision so long as such Crossed Loan is held in the Trust Fund; provided, further, that the repurchase of less than all such Crossed Loans and the release from cross-collateralization and cross-default provision shall be subject to the delivery by the Seller to the Trustee, at the expense of the Seller, of an Opinion of Counsel to the effect that such release would not cause REMIC I or REMIC II to fail to qualify as a REMIC under the Code or result in the imposition of any tax on "prohibited transactions" or "contributions" after the Startup Day under the REMIC Provisions. For a period of two years from the Closing Date, so long as there remains any Mortgage File relating to a Mortgage Loan as to which there is any uncured Document Defect or Breach known to the Seller, the Seller shall provide the officer's certificate to the Trustee described above as to the reasons such Document Defect or Breach remains uncured and as to the actions being taken to pursue cure; provided, however, that, without limiting the effect of the foregoing provisions of this Section 3(c), if such Document Defect or Breach shall materially and adversely affect the value of such Mortgage Loan or the interests of the holders of the Certificates therein (subject to the last proviso in the second preceding sentence), the Seller shall in all cases on or prior to the second anniversary of the Closing Date either cause such Document Defect or Breach to be cured or repurchase or substitute for the affected Mortgage Loan. Notwithstanding the foregoing, the delivery of a commitment to issue a policy of lender's title insurance as described in clause 12 of Schedule I hereof in lieu of the delivery of the actual policy of lender's title insurance shall not be considered a Document Defect or Breach with respect to any Mortgage File if such actual policy of insurance is delivered to Purchaser pursuant to this Agreement are in full force and effect, without material default by any party and without any right of set-off except as disclosed in writing at the time of such deliveryTrustee or a Custodian on its behalf not later than the 90th day following the Closing Date.
(d) There is no master lease In connection with any permitted repurchase or substitution of one or more Mortgage Loans contemplated hereby, upon receipt of a certificate from a Servicing Officer certifying as to the receipt of the Property Purchase Price (as defined in the Pooling and Servicing Agreement) or Substitution Shortfall Amount(s), as applicable, in the Certificate Account, and the delivery of the Mortgage File(s) and the Servicing File(s) for the related Qualified Substitute Mortgage Loan(s) to any affiliate of the Custodian and the Master Servicer, respectively, if applicable (i) the Trustee shall execute and deliver such endorsements and assignments as are provided to it by the Master Servicer or the Seller, in each case without recourse, representation or if such master lease existswarranty, Seller as shall cause such master lease be necessary to be terminated at Closing without Purchaser paying any termination fee. The Rent Roll attached hereto vest in the Seller, the legal and beneficial ownership of each repurchased Mortgage Loan or substituted Mortgage Loan, as Exhibit B is trueapplicable, correct and complete in (ii) the Trustee, the Custodian, the Master Servicer and the Special Servicer shall each tender to the Seller, upon delivery to each of them of a receipt executed by the Seller, all material respects as portions of the date set forth on Mortgage File and other documents pertaining to such Mortgage Loan possessed by it and the Rent Roll. As of Master Servicer and the Closing, Special Servicer shall release to the Rent Roll delivered at the Closing will be true, correct Seller any Escrow Payments and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are Reserve Funds held by it in full force and effect, without default by any party and without any right of setoff, except as expressly provided by the terms respect of such Leases repurchased or as disclosed on the Rent Roll attached hereto. The copies of the Leases and other agreements with the tenants under the Leases (the “Tenants”) delivered to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating to the Real Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real Propertydeleted Mortgage Loan.
(e) Exhibit J attached hereto is a true and complete schedule of all Without limiting the remedies of the Contracts (as hereinafter defined in Section 7)Purchaser, true, complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy the Certificateholders or the Trustee on behalf of the management agreement currently in effect with respect Certificateholders pursuant to this Agreement, it is acknowledged that the representations and warranties are being made for risk allocation purposes. This Section 3 provides the sole remedy available to the Property. To Seller’s actual knowledgeCertificateholders, or the Contracts are Trustee on behalf of the Certificateholders, respecting any Document Defect in full force and effect, without material default by a Mortgage File or any party and without any claims made for the right of setoff, except as expressly provided by the terms of such Contracts or as disclosed to Purchaser in writing at the time of such delivery. The Contracts constitute the entire agreements with such vendors relating to the Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excluding, however, the Leases and Permitted Encumbrances) affecting the Property which will survive the Closing.
(f) At the Closing, there will be no outstanding contracts made by Seller for the construction or repair Breach of any improvements to the Improvements which have not been fully paid for, and Seller shall cause to be discharged all mechanics’ representation or materialmen’s liens arising from any labor or materials furnished to the Improvements prior to the Closing.
(g) Except as warranty set forth in Exhibit K attached hereto, there are no pending or, or required to Seller’s actual knowledge (without any duty of inquiry or investigation), threatened legal proceedings or actions of any kind or character affecting the Property or Seller’s interest therein, including, without limitation, condemnation proceedings.
(h) Seller has not received any actual written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or the Property relating in any way be made pursuant to a Release or compliance with Environmental Laws. For purposes Section 3 of this Agreement, the phrase “Environmental Laws” shall mean any federal, state or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materials, or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 00.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (First Union Commercial Mortgage Securities Inc)
Representations, Warranties and Covenants of Seller. (a) The Seller hereby represents, represents and warrants to and covenants to Purchaser that with the following matters are true and correct Purchaser, as of the execution of this Agreement and will also be true and correct as of the Closingdate hereof, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx Xxxxxxxxxthat:
(ai) The Seller is a statutory trust corporation duly formed and organized,validly existing and in good standing under the laws of the State of Delaware. Delaware and possesses all requisite authority, power, licenses, permits and franchises to carry on its business as currently conducted by it and to execute, deliver and comply with its obligations under the terms of this Agreement.
(ii) This Agreement has been, been duly and all the documents executed by Seller which are to be delivered to Purchaser at the Closing will be, duly validly authorized, executed and delivered by the Seller and, assuming due authorization, execution and will be delivery hereof by the Purchaser, constitutes a legal, valid and binding obligations obligation of Seller the Seller, enforceable against the Seller in accordance with their respective terms (its terms, except to the extent that as such enforcement may be limited by applicable (A) bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws affecting the enforcement of creditors' rights in general, and other (B) general equity principles relating to (regardless of whether such enforcement is considered in a proceeding in equity or limiting at law).
(iii) The execution and delivery of this Agreement by the right Seller and the Seller's performance and compliance with the terms of contracting parties generally), will be sufficient to convey title (if they purport to do so) and this Agreement will not (A) violate the Seller's organizational documents, (B) violate any provisions law or regulation or any administrative decree or order to which the Seller is subject, or (C) constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material contract, agreement or other instrument to which the Seller is a party or to by which the Property or Seller is subject bound.
(iv) The Seller is not in default with respect to any order or bound. Subject decree of any court or any order, regulation or demand of any federal, state, municipal or other governmental agency or body, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or have consequences that would materially and adversely affect its performance hereunder.
(v) The Seller is not a party to the satisfaction of Section 8(a)(i) below, no consent, waiver or approval bound by any agreement or instrument or subject to any organizational document or any other corporate restriction or any judgment, order, writ, injunction, decree, law or regulation that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the ability of the Seller to perform its obligations under this Agreement or that requires the consent of any third party is required in connection with person to the execution and delivery by Seller of this Agreement by the Seller or the performance by the Seller of the its obligations to be performed by Seller under this Agreement.
(bvi) Except as set forth on Exhibit M attached hereto, Seller has not received from any governmental authority written notice, and Seller has no actual knowledge (without any duty for the recordation and/or filing of inquiry or investigation) of any violation of any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable to the Property, or any part thereof, that will not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change to the zoning classification or any proceedings to widen or realign any streets or highways adjacent to the Property or of any condemnation proceedings.
(c) To Seller’s actual knowledge, (i) the operating statements, income and expense reports and all other contracts or documents required to be delivered to Purchaser pursuant to this Agreement are true, correct and complete copies; and (ii) all contracts or documents required to be delivered to Purchaser pursuant to this Agreement are in full force and effect, without material default by any party and without any right of set-off except as disclosed in writing at the time of such delivery.
(d) There is no master lease of the Property to any affiliate of Seller, or if such master lease exists, Seller shall cause such master lease to be terminated at Closing without Purchaser paying any termination fee. The Rent Roll attached hereto as Exhibit B is true, correct and complete in all material respects as of the date set forth on the Rent Roll. As of the Closing, the Rent Roll delivered at the Closing will be true, correct and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default by any party and without any right of setoff, except as expressly provided by the terms of such Leases or as disclosed on the Rent Roll attached hereto. The copies of the Leases assignments and other agreements with the tenants under the Leases (the “Tenants”) delivered to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating to the Real Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real Property.
(e) Exhibit J attached hereto is a true and complete schedule of all of the Contracts (as hereinafter defined in Section 7), true, complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy of the management agreement currently in effect transfer documents with respect to the Property. To Seller’s actual knowledgeMortgage Loans, the Contracts are in full force and effectas contemplated by Section 2(d) hereof, without material default by no consent, approval, authorization or order of, registration or filing with, or notice to, any party and without any claims made court or governmental agency or body, is required for the right of setoffexecution, except as expressly provided delivery and performance by the terms Seller of or compliance by the Seller with this Agreement or the consummation of the transactions contemplated by this Agreement; and no bulk sale law applies to such Contracts or as disclosed to Purchaser in writing at the time of such delivery. The Contracts constitute the entire agreements with such vendors relating to the Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excluding, however, the Leases and Permitted Encumbrances) affecting the Property which will survive the Closingtransactions.
(fvii) At the Closing, there will be no outstanding contracts made by Seller for the construction or repair of any improvements to the Improvements which have not been fully paid for, and Seller shall cause to be discharged all mechanics’ or materialmen’s liens arising from any labor or materials furnished to the Improvements prior to the Closing.
(g) Except as set forth in Exhibit K attached hereto, there are no No litigation is pending or, to the best of the Seller’s actual knowledge (without any duty of inquiry or investigation)'s knowledge, threatened legal proceedings against the Seller that would, in the Seller's good faith and reasonable judgment, prohibit its entering into this Agreement or actions materially and adversely affect the performance by the Seller of any kind or character affecting the Property or Seller’s interest therein, including, without limitation, condemnation proceedingsits obligations under this Agreement.
(hviii) Under generally accepted accounting principles("GAAP") and for federal income tax purposes, the Seller has not will report the transfer of the Mortgage Loans to the Purchaser, as provided herein, as a sale of the Mortgage Loans to the Purchaser in exchange for the consideration specified in Section 1 hereof. In connection with the foregoing, the Seller shall cause all of its records to reflect such transfer as a sale (as opposed to a secured loan). The consideration received any actual written noticeby the Seller upon the sale of the Mortgage Loans to the Purchaser will constitute at least reasonably equivalent value and fair consideration for the Mortgage Loans. The Seller will be solvent at all relevant times prior to, and will not be rendered insolvent by, the sale of the Mortgage Loans to the Purchaser. The Seller has no actual knowledge is not selling the Mortgage Loans to the Purchaser with any intent to hinder, delay or defraud any of the creditors of the Seller. After giving effect to its transfer of the Mortgage Loans to the Purchaser, as provided herein, the value of the Seller's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Seller's debts and obligations, including contingent and unliquidated debts and obligations of the Seller, and the Seller will not be left with unreasonably small assets or capital with which to engage in and conduct its business. The Mortgage Loans do not constitute all or substantially all of the assets of the Seller. The Seller does not intend to, and does not believe that it will, incur debts or obligations beyond its ability to pay such debts and obligations as they mature.
(without any duty ix) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of inquiry the Seller are pending or investigationcontemplated.
(b) The Seller hereby makes, for the benefit of the Purchaser, with respect to each Mortgage Loan, as of the Closing Date or as of such other date expressly set forth therein, each of the representations and warranties made by the Purchaser pursuant to Section 2.04(b) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or the Property relating in any way to a Release or compliance with Environmental Laws. For purposes of this Pooling and Servicing Agreement, except that all references therein to the phrase “Environmental Laws” Purchaser shall mean any federal, state or local law, statute, ordinance, order, decree, rule or regulation be deemed to be references to the Seller and any common laws regarding health, safety, radioactive materials, or all references therein to the environment, including, without limitation, Mortgage Pool shall be deemed to be references to all the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 00Securitized Loans.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Lb-Ubs Commercial Mortgage Trust 2006-C4)
Representations, Warranties and Covenants of Seller. (a) The Seller hereby represents, represents and warrants to and covenants to Purchaser that with the following matters are true and correct Purchaser, as of the execution of this Agreement and will also be true and correct as of the Closingdate hereof, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx Xxxxxxxxxthat:
(ai) The Seller is a statutory trust corporation duly formed and organized, validly existing and in good standing under the laws of the State of Delaware. Delaware and the Seller has taken all necessary corporate action to authorize the execution, delivery and performance of this Agreement by it, and has the power and authority to execute, deliver and perform this Agreement and all the transactions contemplated hereby.
(ii) This Agreement has been, been duly and all the documents executed by Seller which are to be delivered to Purchaser at the Closing will be, duly validly authorized, executed and delivered by the Seller and, assuming the due authorization, execution and will be delivery of this Agreement by each other party hereto, this Agreement and all of the obligations of the Seller hereunder are the legal, valid and binding obligations of Seller the Seller, enforceable against the Seller in accordance with their respective the terms (of this Agreement, except to the extent that as such enforcement may be limited by applicable bankruptcy, insolvency, moratorium reorganization or other similar laws affecting the enforcement of creditors' rights generally, and other by general principles relating of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and by public policy considerations underlying the securities laws, to or limiting the right extent that such public policy considerations limit the enforceability of contracting parties generally), will be sufficient to convey title (if they the provisions of this Agreement which purport to do soprovide indemnification from liabilities under applicable securities laws.
(iii) The execution and delivery of this Agreement by the Seller and the Seller's performance and compliance with the terms of this Agreement will not (A) violate the Seller's articles of association or By-Laws, (B) violate any provisions law or regulation or any administrative decree or order to which it is subject or (C) constitute a material default (or an event which, with notice or lapse of time, or both, would constitute a material default) under, or result in the breach of, any material contract, agreement or other instrument to which the Seller is a party or to by which the Property or Seller is bound.
(iv) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or other governmental agency or body, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or have consequences that would materially and adversely affect its performance hereunder.
(v) The Seller is not a party to or bound by any agreement or instrument or subject to any articles of association, bylaws or bound. Subject any other corporate restriction or any judgment, order, writ, injunction, decree, law or regulation that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the ability of the Seller to perform its obligations under this Agreement or that requires the consent of any third person to the satisfaction of Section 8(a)(i) below, no consent, waiver or approval by any third party is required in connection with the execution and delivery by Seller of this Agreement or the performance by the Seller of its obligations under this Agreement (except to the extent such consent has been obtained).
(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 or the consummation of the transactions contemplated by this Agreement except as have previously been obtained, and no bulk sale law applies to such transactions.
(vii) No litigation is pending or, to the Seller's knowledge, threatened against the Seller that would, in the Seller's good faith and reasonable judgment, prohibit its entering into this Agreement or materially and adversely affect the performance by the Seller of its obligations to be performed by Seller under this Agreement.
(viii) Under generally accepted accounting principles ("GAAP") and for federal income tax purposes, the Seller will report the transfer of the MLMCI Mortgage Loans to the Purchaser as a sale of the MLMCI Mortgage Loans to the Purchaser in exchange for consideration consisting of a cash amount equal to the Aggregate Purchase Price. The consideration received by the Seller upon the sale of the MLMCI Mortgage Loans to the Purchaser will constitute reasonably equivalent value at least equal to the fair market value of the MLMCI Mortgage Loans. The Seller will be solvent at all relevant times prior to, and will not be rendered insolvent by, the sale of the MLMCI Mortgage Loans to the Purchaser. The Seller is not selling the MLMCI Mortgage Loans to the Purchaser with any intent to hinder, delay or defraud any of the creditors of the Seller.
(b) Except The Seller hereby makes the representations and warranties contained in Schedule I, Schedule II/Schedule III and Schedule IV hereto for the benefit of the Purchaser and the Trustee for the benefit of the Certificateholders as set forth on Exhibit M attached heretoof the Closing Date, Seller has not received from any governmental authority written notice, with respect to (and Seller has no actual knowledge (without any duty of inquiry or investigationsolely with respect to) of any violation of any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable to the Property, or any part thereof, that will not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change to the zoning classification or any proceedings to widen or realign any streets or highways adjacent to the Property or of any condemnation proceedingseach MLMCI Mortgage Loan.
(c) To Seller’s actual knowledgeIf the Seller receives written notice of a Document Defect or a Breach pursuant to Section 2.03(a) of the Pooling and Servicing Agreement relating to a MLMCI Mortgage Loan, then the Seller shall not later than 90 days from receipt of such notice (or, in the case of a Document Defect or Breach relating to a MLMCI Mortgage Loan not being a "qualified mortgage" within the meaning of the REMIC Provisions (a "Qualified Mortgage"), not later than 90 days of any party to the Pooling and Servicing Agreement discovering such Document Defect or Breach provided the Seller receives such notice in a timely manner), if such Document Defect or Breach shall materially and adversely affect the value of the related MLMCI Mortgage Loan or the interest of the Certificateholders therein, cure such Document Defect or Breach, as the case may be, in all material respects, which shall include payment of losses and any Additional Trust Fund Expenses associated therewith or, if such Document Defect or Breach (other than omissions solely due to a document not having been returned by the related recording office) cannot be cured within such 90-day period, (i) repurchase the operating statements, income and expense reports and all other contracts affected MLMCI Mortgage Loan at the applicable Purchase Price not later than the end of such 90-day period or documents required to be delivered to Purchaser pursuant to this Agreement are true, correct and complete copies; and (ii) substitute a Qualified Substitute Mortgage Loan for such affected MLMCI Mortgage Loan not later than the end of such 90-day period (and in no event later than the second anniversary of the Closing Date) and pay the Master Servicer for deposit into the Certificate Account, any Substitution Shortfall Amount in connection therewith; provided, however, that if such Document Defect or Breach is capable of being cured but not within such 90- day period, such Document Defect or Breach does not relate to the MLMCI Mortgage Loan not being treated as a Qualified Mortgage, and the Seller has commenced and is diligently proceeding with the cure of such Document Defect or Breach within such 90-day period, such Seller shall have an additional 90 days to complete such cure (or, failing such cure, to repurchase or substitute the related MLMCI Mortgage Loan); and provided, further, that with respect to such additional 90-day period the Seller shall have delivered an Officer's Certificate to the Trustee setting forth the reason such Document Defect or Breach is not capable of being cured within the initial 90-day period and what actions the Seller is pursuing in connection with the cure thereof and stating that the Seller anticipates that such Document Defect or Breach will be cured within the additional 90-day period. For a period of two years from the Closing Date, so long as there remains any Mortgage File relating to a MLMCI Mortgage Loan as to which there is any uncured Document Defect or Breach, the Seller shall provide the Officer's Certificate to the Trustee described above as to the reasons such Document Defect or Breach remains uncured and as to the actions being taken to pursue cure; provided, however, that, without limiting the effect of the forgoing provisions of this Section 3(c), if such Document Defect or Breach shall materially and adversely affect the value of such MLMCI Mortgage Loan or the interests of the holders of the Certificates therein, the Seller shall in all contracts cases on or documents required prior to the second anniversary of the Closing Date either cause such Document Defect or Breach to be cured or repurchase the affected MLMCI Mortgage Loan. Notwithstanding the foregoing, the delivery of a commitment to issue a policy of lender's title insurance as described in clause 12 of Schedule I hereof in lieu of the delivery of the actual policy of lender's title insurance shall not be considered a Document Defect or Breach with respect to any Mortgage File if such actual policy of insurance is delivered to Purchaser pursuant to this Agreement are in full force and effect, without material default by any party and without any right of set-off except as disclosed in writing at the time of such deliveryTrustee or a Custodian on its behalf not later than the 90th day following the Closing Date.
(d) There is no master lease In connection with any permitted repurchase or substitution of one or more MLMCI Mortgage Loans contemplated hereby, upon receipt of a certificate from a Servicing Officer certifying as to the receipt of the Property Purchase Price or Substitution Shortfall Amount(s), as applicable, in the Certificate Account, and the delivery of the Mortgage File(s) and the Servicing File(s) for the related Qualified Substitute Mortgage Loan(s) to any affiliate of the Custodian and the Master Servicer, respectively, if applicable (i) the Trustee shall execute and deliver such endorsements and assignments as are provided to it by the Master Servicer, in each case without recourse, representation or warranty, as shall be necessary to vest in the Seller, the legal and beneficial ownership of each repurchased MLMCI Mortgage Loan or if such master lease existssubstituted MLMCI Mortgage Loan, Seller as applicable, and (ii) the Trustee, the Custodian, the Master Servicer and the Special Servicer shall cause such master lease each tender to be terminated at Closing without Purchaser paying any termination fee. The Rent Roll attached hereto as Exhibit B is truethe Seller, correct and complete in upon delivery to each of them of a receipt executed by the Seller, all material respects as portions of the date set forth on the Rent Roll. As of the Closing, the Rent Roll delivered at the Closing will be true, correct and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default by any party and without any right of setoff, except as expressly provided by the terms of such Leases or as disclosed on the Rent Roll attached hereto. The copies of the Leases Mortgage File and other agreements with the tenants under the Leases (the “Tenants”) delivered documents pertaining to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating to the Real Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real PropertyMLMCI Mortgage Loan possessed by it.
(e) Exhibit J attached hereto is a true and complete schedule of all Without limiting the remedies of the Contracts (as hereinafter defined in Section 7)Purchaser, true, complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy the Certificateholders or the Trustee on behalf of the management agreement currently in effect with respect Certificateholders pursuant to this Agreement, it is acknowledged that the Property. To Seller’s actual knowledge, the Contracts representations and warranties are in full force and effect, without material default by any party and without any claims being made for the right of setoff, except as expressly provided by the terms of such Contracts or as disclosed risk allocation purposes. Subject to Purchaser in writing at the time of such delivery. The Contracts constitute the entire agreements with such vendors relating to the Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excluding, however, the Leases and Permitted Encumbrances) affecting the Property which will survive the Closing.
(f) At the Closing, there will be no outstanding contracts made by Seller for the construction or repair of any improvements to the Improvements which have not been fully paid for, and Seller shall cause to be discharged all mechanics’ or materialmen’s liens arising from any labor or materials furnished to the Improvements prior to the Closing.
(g) Except as set forth in Exhibit K attached hereto, there are no pending or, to Seller’s actual knowledge (without any duty of inquiry or investigation), threatened legal proceedings or actions of any kind or character affecting the Property or Seller’s interest therein, including, without limitation, condemnation proceedings.
(h) Seller has not received any actual written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or the Property relating in any way to a Release or compliance with Environmental Laws. For purposes Section 7 of this Agreement, this Section 3 provides the phrase “Environmental Laws” shall mean any federal, state or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materialssole remedy available to the Certificateholders, or the environmentTrustee on behalf of the Certificateholders, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act respecting any Document Defect in a Mortgage File or any Breach of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 00any representation or warranty set forth in or required to be made pursuant to Section 3 of this Agreement.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (First Union Commercial Mortgage Securities Inc)
Representations, Warranties and Covenants of Seller. (a) Seller hereby representsrepresents and warrants to, warrants and covenants to with, Purchaser that the following matters are true and correct as of each Closing Date:
(i) It is duly organized, validly existing and in good standing under the execution laws of the jurisdiction of its organization and has all licenses necessary to carry on its business as now being conducted. It is licensed in, qualified to transact business in and is in good standing under the laws of the state in which any Mortgaged Property (as defined herein) is located except where the failure to be so licensed and qualified would not have a material adverse effect on its business or operations. No licenses or approvals obtained by Seller have been 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;
(ii) It has the full power and authority (corporate and other) to hold each Mortgage Loan, to sell each Mortgage Loan and to execute, deliver and perform, and to enter into and consummate all transactions contemplated by this Agreement and the PPTL. Seller has duly authorized the execution, delivery and performance of this Agreement and will also be true the PPTL, has duly executed and correct as delivered this Agreement and the PPTL, and this Agreement and the PPTL constitute legal, valid and binding obligations of it, enforceable against it in accordance with their terms, subject to bankruptcy laws and other similar laws of general application affecting rights of creditors and subject to the application of the Closingrules of equity, including those respecting the availability of specific performance;
(iii) None of the execution and delivery of this Agreement and the PPTL or the other documents and agreements contemplated hereby, the consummation of the transactions contemplated hereby and thereby, or the fulfillment of or compliance with the terms and conditions of this Agreement and the PPTL and such other documents and agreements will result in the breach of any term or provision of the charter or by-laws of Seller or result in the breach of any material 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 instrument to which Seller or its property is subject, or result in the violation of any law, rule, regulation, order, judgment or decree to which Seller or its property is subject;
(iv) It does not believe that it cannot perform each and every covenant contained in this Agreement and the PPTL;
(v) There are no actions, suits or proceedings pending or, to its knowledge, threatened or likely to be asserted against or affecting it, before or by any court, administrative agency, arbitrator or governmental body with respect to any of the transactions contemplated by this Agreement or the PPTL or any other matter which may materially and adversely affect its ability to perform its obligations under this Agreement or the PPTL or which may materially and adversely affect its business or prospects;
(vi) With respect to Seller, the consummation of the transactions contemplated by this Agreement and the PPTL are in the ordinary course of its business and the transfer, assignment and conveyance of the Mortgage Loans are not subject to the bulk transfer or any similar statutory provisions in effect in any applicable jurisdiction;
(vii) The transfer of the Mortgage Loans shall be treated as a sale on the books and records of Seller, and all references Seller has determined that, and will treat, the disposition of the Mortgage Loans pursuant to “Seller’s actual knowledge” this Agreement for tax and accounting purposes as a sale. Seller shall mean maintain a complete set of books and records for each Mortgage Loan which shall be clearly marked to reflect the actual knowledge ownership of Xxxxxxxxxxx X. Xxxxxx or Xxxx Xxxxxxxxx:each Mortgage Loan by Purchaser;
(aviii) The consideration received by Seller upon the sale of the Mortgage Loans constitutes fair consideration and reasonably equivalent value for such Mortgage Loans;
(ix) Seller is solvent and will not be rendered insolvent by the consummation of the transactions contemplated hereby. Seller is not transferring any Mortgage Loan with any intent to hinder, delay or defraud any of its creditors;
(x) Seller is a statutory trust duly formed HUD approved mortgagee pursuant to Section 203 and validly Section 211 of the National Housing Act. No event has occurred, including but not limited to a change in insurance coverage, which would make the Seller unable to comply with HUD eligibility requirements or which would require notification to HUD. For the purposes hereof, HUD means the United States Department of Housing and Urban Development, or any successor thereto; and
(xi) To the extent that any Mortgage Loans sold by Seller hereunder are MERS Loans, Seller is in good standing, and will comply in all material respects with the rules and procedures of Mortgage Electronic Registration Systems, Inc., ("MERS"), a corporation organized and existing under the laws of the State of Delaware. This Agreement has been, or any successor thereto in connection with the servicing of any Mortgage Loan registered with MERS (a "MERS Loan") on the system of recording transfers of mortgages electronically maintained by MERS (the "MERS System") for as long as such Mortgage Loans are registered with MERS.
(b) Seller represents and warrants to, and all covenants with Purchaser and Litton (in the documents executed by Seller case of Litton submitting breaches of representations xxx xarranties directlx, xxxer than with respect to any representations or warranties, or portions thereof, relating to the servicing of the Mortgage Loans or to information of which are Litton reasonably should have been aware in its capacity as servicer xx xxe Mortgage Loans prior to be the Closing Date, for which Litton shall not have the benefit), with respect to each Mortgage Loxx xx of the Closing Date (or such other date as set forth herein) for such Mortgage Loan:
(i) The information required in Schedule One, Schedule Two and Schedule Three hereto and the Mortgage Loan data delivered to Purchaser at are complete, true and correct and the Closing will servicing information provided to Purchaser with respect to the Mortgage Loans as of the Transfer Date (as defined herein) is true and correct in all material respects;
(ii) The mortgagor's real property securing repayment of the related Mortgage Note (as defined herein), consists of a fee simple interest or a Ground Lease (as defined herein) in a single parcel of real property improved by a (A) detached one-family dwelling, (B) detached two-to four family dwelling, (C) one-family unit in a Fannie Mae ("FNMA") eligible condominium project, (X) xxtxxxed one-family dwelling in a planned unit development which is not a co-operative and which meets the eligibility requirements of FNMA, or (E) mobile home or manufactured dwelling which constitutes real property (the "Mortgaged Property") and is located in one of the fifty states of the United States of America or the District of Columbia. None of the Mortgage Loans is secured by a multifamily, commercial, industrial, agricultural or undeveloped property or by a condominium unit that is part of a condominium development that operates as, or holds itself out to be, duly authorizeda condominium hotel, regardless of whether the unit itself is being used as a condotel unit;
(iii) There are no delinquent real estate taxes, ground rents, water charges, sewer rents, Ground Lease rents, assessments, insurance premiums, leasehold payments, including assessments payable in future installments or other outstanding charges affecting the Mortgaged Property;
(iv) The terms of the note or other evidence of indebtedness of the mortgagor secured by the Mortgaged Property (in each case, the "Mortgage Note") and the mortgage or other instrument creating a first lien on the Mortgaged Property (in each case, a "Mortgage") have not been impaired, waived, altered or modified in any respect, except by written instruments, recorded in the applicable public recording office if necessary to maintain the lien priority of the Mortgage, the substance of which waiver, alteration or modification is reflected on the applicable Mortgage Loan Schedule and has been approved by the primary mortgage guaranty insurer, if any, and the title insurer, to the extent required by the related policy; no instrument of waiver, alteration or modification has been executed, and no mortgagor has been released, in whole or in part, except in connection with an assumption agreement approved by the primary mortgage guaranty insurer, if any, and the title insurer, to the extent required by the related policy and which assumption agreement is part of the Mortgage File or the Servicing File and the terms of which are reflected in the applicable Mortgage Loan Schedule;
(v) The servicing and collection practices with respect to each Mortgage Note and Mortgage have been in all respects legal, proper, prudent and customary in the mortgage servicing business, as conducted by prudent mortgage lending institutions which service mortgage loans of the same type in the jurisdiction in which the Mortgaged Property is located and in accordance with the terms of the Mortgage Note, Mortgage and other loan documents, whether such servicing was done by Seller, its affiliates or any servicing agent of any of the foregoing; the servicer of the Mortgage Loan has not assessed the mortgagor any delinquent payment fees that are not specifically permitted in the Mortgage or Mortgage Note, including but not limited to demand letter charges, or assessed the mortgagor interest on any advances made by the servicer;
(vi) The Mortgage Note, the Mortgage and other agreements executed in connection therewith are genuine and delivered by Seller and will be each is the legal, valid and binding obligations obligation of Seller the maker thereof, enforceable against Seller in accordance with their respective its terms (except to the extent that as such enforcement may be limited by applicable bankruptcy, insolvency, moratorium reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law) and free from any right of offset, counterclaim, rescission, reformation or other claim or defense, including the defense of usury. There is no basis for the Mortgage Loan to be modified or reformed without the consent of the mortgagee under applicable law. All parties to the Mortgage Note and the Mortgage had the legal capacity to enter into the Mortgage Loan and to execute and deliver the Mortgage Note and the Mortgage and the Mortgage Note and the Mortgage have been duly and properly executed by such parties. The obligor under the Mortgage Note is a natural person;
(vii) The 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 satisfaction, cancellation, subordination, rescission or release;
(viii) The proceeds of the Mortgage Loan have been fully disbursed and there is no requirement for future advances thereunder, and any and all requirements as to completion of any improvements and as to disbursements of any escrow funds thereof have been complied with or any incomplete improvements are immaterial in nature or are weather related and do not significantly affect the value of the Mortgaged Property and no repair escrow has been established with respect to such incomplete improvements. All costs, fees and expenses incurred in making or closing the Mortgage Loan and the recording of the Mortgage have been paid, and the mortgagor is not entitled to any refund of any amounts paid or due to the mortgagee pursuant to the Mortgage Note or Mortgage;
(ix) Seller has not advanced funds, or induced, solicited or knowingly received any advance of funds from a party other than the owner of the related Mortgaged Property, directly or indirectly, for the payment of any amount required by the Mortgage Note or Mortgage;
(x) The related Mortgage is a valid and enforceable first lien on the Mortgaged Property, which Mortgaged Property is free and clear of all encumbrances and liens having priority over the lien of the Mortgage except for (A) liens for real estate taxes and special assessments not yet due and payable, (B) covenants, conditions and restrictions, rights of way, easements and other principles relating matters of public record as of the date of recording of the Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or limiting specifically reflected in the right of contracting parties generally), will be sufficient to convey title (if they purport to do so) and will not violate any provisions of any material agreement to which Seller is a party or to which the Property or Seller is subject or bound. Subject to the satisfaction of Section 8(a)(i) below, no consent, waiver or approval by any third party is required appraisal made in connection with the execution origination of the Mortgage Loan and delivery (C) 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 Seller of this Agreement the Mortgage or the performance by Seller use, enjoyment, value or marketability of the obligations related Mortgaged Property. The Mortgage Note and the Mortgage have not been assigned or pledged, other than to lenders whose liens will be performed by released prior to the Closing Date or simultaneously with Purchaser's purchase hereunder, on the Closing Date, pursuant to a duly executed Security Release in the form of Exhibit C (the "Security Release Certification"). Any security agreement, chattel mortgage or equivalent document related to and delivered in connection with the Mortgage Loan establishes and creates a valid, existing and enforceable first lien and first priority security interest on the property described therein. As of the Closing Date, Seller under this Agreement.is the sole owner thereof and has full right to transfer and sell the Mortgage Loans to Purchaser free and clear of any lien or encumbrance equity, charge, claim or other security interest;
(bxi) Except If such Mortgage Loan is indicated on the applicable Mortgage Loan Schedule as set forth on Exhibit M attached heretohaving primary mortgage insurance, Seller has not received from any governmental authority written notice, and Seller has no actual knowledge such Mortgage Loan is covered by a primary mortgage insurance policy as to the principal amount of the Mortgage Loan in excess of the portion required by FNMA of the Appraised Value (without any duty of inquiry or investigationas defined herein) of the Mortgaged Property at the time of origination of the Mortgage. Such primary mortgage insurance policy is in full force and effect and the related Mortgage obligates the mortgagor to maintain such insurance and to pay all premiums and charges in connection therewith. The mortgage interest rate for the Mortgage Loan does not include any violation of such insurance premium. "Appraised Value" means with respect to any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable to the Mortgaged Property, or any part thereof, that will not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change to the zoning classification or any proceedings to widen or realign any streets or highways adjacent to the Property or lesser of any condemnation proceedings.
(c) To Seller’s actual knowledge, (i) the operating statementsvalue thereof as determined by an appraisal made for the originator of the Mortgage Loan at the time of origination of the Mortgage Loan by an appraiser who met the minimum requirements of FNMA and the Federal Home Loan Mortgage Corporation or any successor thereto ("FHLMC"), income and expense reports and all other contracts or documents required to be delivered to Purchaser pursuant to this Agreement are true, correct and complete copies; and (ii) all contracts or documents required to be delivered to Purchaser pursuant to this Agreement are the purchase price paid for the related Mortgaged Property by the mortgagor with the proceeds of the Mortgage Loan, provided, however, in full force and effectthe case of a refinanced Mortgage Loan, without material default such value of the Mortgaged Property is based solely upon the value determined by any party and without any right an appraisal made for the originator of set-off except as disclosed in writing such refinanced Mortgage Loan at the time of such delivery.
(d) There is no master lease of the Property to any affiliate of Seller, or if such master lease exists, Seller shall cause such master lease to be terminated at Closing without Purchaser paying any termination fee. The Rent Roll attached hereto as Exhibit B is true, correct and complete in all material respects as of the date set forth on the Rent Roll. As of the Closing, the Rent Roll delivered at the Closing will be true, correct and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default by any party and without any right of setoff, except as expressly provided by the terms origination of such Leases or as disclosed on refinanced Mortgage Loan by an appraiser who met the Rent Roll attached hereto. The copies minimum requirements of the Leases FNMA and other agreements with the tenants under the Leases (the “Tenants”) delivered to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating to the Real Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real Property.
(e) Exhibit J attached hereto is a true and complete schedule of all of the Contracts (as hereinafter defined in Section 7), true, complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy of the management agreement currently in effect with respect to the Property. To Seller’s actual knowledge, the Contracts are in full force and effect, without material default by any party and without any claims made for the right of setoff, except as expressly provided by the terms of such Contracts or as disclosed to Purchaser in writing at the time of such delivery. The Contracts constitute the entire agreements with such vendors relating to the Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excluding, however, the Leases and Permitted Encumbrances) affecting the Property which will survive the Closing.
(f) At the Closing, there will be no outstanding contracts made by Seller for the construction or repair of any improvements to the Improvements which have not been fully paid for, and Seller shall cause to be discharged all mechanics’ or materialmen’s liens arising from any labor or materials furnished to the Improvements prior to the Closing.
(g) Except as set forth in Exhibit K attached hereto, there are no pending or, to Seller’s actual knowledge (without any duty of inquiry or investigation), threatened legal proceedings or actions of any kind or character affecting the Property or Seller’s interest therein, including, without limitation, condemnation proceedings.
(h) Seller has not received any actual written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or the Property relating in any way to a Release or compliance with Environmental Laws. For purposes of this Agreement, the phrase “Environmental Laws” shall mean any federal, state or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materials, or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 00FHLMC;
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (ABFC 2007-Wmc1 Trust)
Representations, Warranties and Covenants of Seller. (a) The Seller hereby represents, represents and warrants to and covenants to Purchaser that with the following matters are true and correct Purchaser, as of the execution of this Agreement and will also be true and correct as of the Closingdate hereof, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx Xxxxxxxxxthat:
(ai) The Seller is a statutory trust duly formed national banking association organized and validly existing and in good standing under the laws of the State United States of Delaware. America and possesses all requisite authority, power, licenses, permits and franchises to carry on its business as currently conducted by it and to execute, deliver and comply with its obligations under the terms of this Agreement;
(ii) This Agreement has been, been duly and all the documents executed by Seller which are to be delivered to Purchaser at the Closing will be, duly validly authorized, executed and delivered by the Seller and, assuming due authorization, execution and will be delivery hereof by the Purchaser, constitutes a legal, valid and binding obligations obligation of Seller the Seller, enforceable against the Seller in accordance with their respective terms (its terms, except to the extent that as such enforcement may be limited by applicable bankruptcy, insolvency, reorganization, receivership, moratorium and other laws affecting the enforcement of creditors' rights in general, as they may be applied in the context of the insolvency of a national banking association, and by general equity principles relating to (regardless of whether such enforcement is considered in a proceeding in equity or limiting the right of contracting parties generallyat law), will be sufficient and by public policy considerations underlying the securities laws, to convey title (if they the extent that such public policy considerations limit the enforceability of the provisions of this Agreement which purport to do soprovide indemnification from liabilities under applicable securities laws;
(iii) The execution and delivery of this Agreement by the Seller and the Seller's performance and compliance with the terms of this Agreement will not (A) violate the Seller's articles of association or bylaws, (B) violate any provisions law or regulation or any administrative decree or order to which it is subject or (C) constitute a material default (or an event which, with notice or lapse of time, or both, would constitute a material default) under, or result in the breach of, any material contract, agreement or other instrument to which the Seller is a party or to by which the Property or Seller is bound, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or have consequences that would materially and adversely affect its performance hereunder;
(iv) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or other governmental agency or body, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or have consequences that would materially and adversely affect its performance hereunder;
(v) The Seller is not a party to or bound by any agreement or instrument or subject to any articles of association, bylaws or bound. Subject any other corporate restriction or any judgment, order, writ, injunction, decree, law or regulation that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the ability of the Seller to perform its obligations under this Agreement or that requires the consent of any third person to the satisfaction of Section 8(a)(i) below, no consent, waiver or approval by any third party is required in connection with the execution and delivery by Seller of this Agreement or the performance by the Seller of its obligations under this Agreement (except to the extent such consent has been obtained);
(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 or the consummation of the transactions contemplated by this Agreement except as have previously been obtained, and no bulk sale law applies to such transactions;
(vii) No litigation is pending or, to the Seller's knowledge, threatened against the Seller that would, in the Seller's good faith and reasonable judgment, prohibit its entering into this Agreement or materially and adversely affect the performance by the Seller of its obligations to be performed by Seller under this Agreement; and
(viii) Under generally accepted accounting principles ("GAAP") and for federal income tax purposes, the Seller will report the transfer of the Mortgage Loans to the Purchaser as a sale of the Mortgage Loans to the Purchaser in exchange for consideration consisting of the Aggregate Purchase Price. The consideration received by the Seller upon the sale of the Mortgage Loans to the Purchaser will constitute at least reasonably equivalent value and fair consideration for the Mortgage Loans. The Seller will be solvent at all relevant times prior to, and will not be rendered insolvent by, the sale of the Mortgage Loans to the Purchaser. The Seller is not selling the Mortgage Loans to the Purchaser with any intent to hinder, delay or defraud any of the creditors of the Seller.
(b) Except as The Seller hereby makes, on the date hereof and on the Closing Date, the representations and warranties contained in Schedule I and Schedule II hereto with respect to each Mortgage Loan, for the benefit of the Purchaser and the Trustee (for the benefit of the Certificateholders), which representations and warranties are subject to the exceptions set forth on Exhibit M attached hereto, Seller has not received from any governmental authority written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any violation of any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable to the Property, or any part thereof, that will not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change to the zoning classification or any proceedings to widen or realign any streets or highways adjacent to the Property or of any condemnation proceedingsSchedule III.
(c) If the Seller receives written notice of a Document Defect or a Breach pursuant to Section 2.03(a) of the Pooling and Servicing Agreement relating to a Mortgage Loan, then the Seller shall, not later than 90 days from receipt of such notice (or, in the case of a Document Defect or Breach relating to a Mortgage Loan not being a "qualified mortgage" within the meaning of the REMIC Provisions (a "Qualified Mortgage"), not later than 90 days from any party to the Pooling and Servicing Agreement discovering such Document Defect or Breach, provided the Seller receives such notice in a timely manner), if such Document Defect or Breach shall materially and adversely affect the value of the applicable Mortgage Loan or the interests of the Certificateholders therein, cure such Document Defect or Breach, as the case may be, in all material respects, which shall include payment of actual losses and any Additional Trust Fund Expenses directly resulting therefrom or, if such Document Defect or Breach (other than omissions solely due to a document not having been returned by the related recording office) cannot be cured within such 90-day period, (i) repurchase the affected Mortgage Loan at the applicable Purchase Price not later than the end of such 90-day period, or (ii) substitute a Qualified Substitute Mortgage Loan for such affected Mortgage Loan not later than the end of such 90-day period (and in no event later than the second anniversary of the Closing Date) and pay the Master Servicer for deposit into the Certificate Account, any Substitution Shortfall Amount in connection therewith; provided, however, that, if Document Defect or Breach is capable of being cured but not within such 90-day period and the Seller has commenced and is diligently proceeding with the cure of such Document Defect or Breach within such 90-day period, then unless such Document Defect or Breach would cause the Mortgage Loan not to be a Qualified Mortgage, such Seller shall have an additional 90 days to complete such cure (or, failing such cure, to repurchase or substitute for the related Mortgage Loan); and provided, further, that with respect to such additional 90-day period the Seller shall have delivered an officer's certificate to the Trustee setting forth what actions the Seller is pursuing in connection with the cure thereof and stating that the Seller anticipates that such Document Defect or Breach will be cured within the additional 90-day period; and provided, further, that no Document Defect (other than with respect to a Mortgage Note, Mortgage, title insurance policy, Ground Lease or any letter of credit) shall be considered to materially and adversely affect the value of the related Mortgage Loan or the interests of the Certificateholders therein unless the document with respect to which the Document Defect exists is required in connection with an imminent enforcement of the mortgagee's rights or remedies under the related Mortgage Loan, defending any claim asserted by any borrower or third party with respect to the related Mortgage Loan, establishing the validity or priority of any lien on any collateral securing the related Mortgage Loan or for any immediate significant servicing obligations. For a period of two years from the Closing Date, so long as there remains any Mortgage File relating to a Mortgage Loan as to which there is an uncured Document Defect, the Seller shall provide the officer's certificate to the Trustee described above as to the reasons such Document Defect remains uncured and as to the actions being taken to pursue cure. Notwithstanding the foregoing, the delivery of a commitment to issue a policy of lender's title insurance as described in paragraph 12 of Schedule I hereof in lieu of the delivery of the actual policy of lender's title insurance shall not be considered a Document Defect with respect to any Mortgage Loan if such actual policy of insurance is delivered to the Trustee or a Custodian on its behalf not later than the 90th day following the Closing Date.
(d) If (i) any Mortgage Loan is required to be repurchased or substituted for in the manner described above, (ii) such Mortgage Loan is a Crossed Loan, and (iii) the applicable Document Defect or Breach does not constitute a Document Defect or Breach, as the case may be, as to any other Crossed Loan in such Crossed Group (without regard to this paragraph), then the applicable Document Defect or Breach, as the case may be, will be deemed to constitute a Document Defect or Breach, as the case may be, as to each other Crossed Loan in the Crossed Group for purposes of this paragraph, and the Seller will be required to repurchase or substitute for all of the remaining Crossed Loan(s) in the related Crossed Group as provided in the immediately preceding paragraph unless such other Crossed Loans in such Crossed Group satisfy the Crossed Loan Repurchase Criteria and satisfy all other criteria for substitution or repurchase, as applicable, of Mortgage Loans set forth herein or in the Pooling and Servicing Agreement. In the event that the remaining Crossed Loans satisfy the aforementioned criteria, the Seller may elect either to repurchase or substitute for only the affected Crossed Loan as to which the related Breach or Document Defect exists or to repurchase or substitute for all of the Crossed Loans in the related Crossed Group. The Seller shall be responsible for the cost of any Appraisal required to be obtained by the Master Servicer to determine if the Crossed Loan Repurchase Criteria have been satisfied, so long as the scope and cost of such Appraisal has been approved by the Seller (such approval not to be unreasonably withheld). To the extent that the Seller is required to purchase or substitute for a Crossed Loan hereunder in the manner prescribed above while the Purchaser continues to hold any other Crossed Loans in such Crossed Group, neither the Seller nor the Purchaser shall enforce any remedies against the other's Primary Collateral, but each is permitted to exercise remedies against the Primary Collateral securing its respective Crossed Loans, including, with respect to the Purchaser, the Primary Collateral securing the Crossed Loans still held by the Purchaser, so long as such exercise does not materially impair the ability of the other party to exercise its remedies against its Primary Collateral. If the exercise of remedies by one party would materially impair the ability of the other party to exercise its remedies with respect to the Primary Collateral securing the Crossed Loans held by such party, then the Seller and the Purchaser shall forbear from exercising such remedies until the Mortgage Loan documents evidencing and securing the relevant Crossed Loans can be modified in a manner that complies with this Agreement to remove the threat of material impairment as a result of the exercise of remedies or some other accommodation can be reached. Any reserve or other cash collateral or letters of credit securing the Crossed Loans shall be allocated between such Crossed Loans in accordance with the Mortgage Loan documents, or otherwise on a pro rata basis based upon their outstanding Stated Principal Balances. Notwithstanding the foregoing, if a Crossed Loan included in the Trust Fund is modified to terminate the related cross-collateralization and/or cross-default provisions, as a condition to such modification, the Seller shall furnish to the Trustee an Opinion of Counsel that such modification shall not cause an Adverse REMIC Event. Any expenses incurred by the Purchaser in connection with such modification or accommodation (including but not limited to recoverable attorney fees) shall be paid by the Seller’s actual knowledge.
(e) In connection with any permitted repurchase or substitution of one or more Mortgage Loans contemplated hereby, upon receipt of a certificate from a Servicing Officer certifying as to the receipt of the Purchase Price or Substitution Shortfall Amount(s), as applicable, in the Certificate Account, and the delivery of the Mortgage File(s) and the Servicing File(s) for the related Qualified Substitute Mortgage Loan(s) to the Custodian and the Master Servicer, respectively, if applicable, (i) the operating statementsTrustee shall execute and deliver such endorsements and assignments as are provided to it by the Master Servicer, income in each case without recourse, representation or warranty, as shall be necessary to vest in the Seller, the legal and expense reports and all other contracts beneficial ownership of each repurchased Mortgage Loan or documents required to be delivered to Purchaser pursuant to this Agreement are truesubstituted Mortgage Loan, correct and complete copies; and as applicable, (ii) the Trustee, the Custodian, the Master Servicer and the Special Servicer shall each tender to the Seller, upon delivery to each of them of a receipt executed by the Seller, all contracts or portions of the Mortgage File and other documents required pertaining to be delivered such Mortgage Loan possessed by it, and (iii) the Master Servicer and the Special Servicer shall release to Purchaser pursuant to this Agreement are the Seller any Escrow Payments and Reserve Funds held by it in full force and effect, without material default by any party and without any right of set-off except as disclosed in writing at the time respect of such delivery.
(d) There is no master lease of the Property to any affiliate of Seller, repurchased or if such master lease exists, Seller shall cause such master lease to be terminated at Closing without Purchaser paying any termination fee. The Rent Roll attached hereto as Exhibit B is true, correct and complete in all material respects as of the date set forth on the Rent Roll. As of the Closing, the Rent Roll delivered at the Closing will be true, correct and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default by any party and without any right of setoff, except as expressly provided by the terms of such Leases or as disclosed on the Rent Roll attached hereto. The copies of the Leases and other agreements with the tenants under the Leases (the “Tenants”) delivered to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating to the Real Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real Property.
(e) Exhibit J attached hereto is a true and complete schedule of all of the Contracts (as hereinafter defined in Section 7), true, complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy of the management agreement currently in effect with respect to the Property. To Seller’s actual knowledge, the Contracts are in full force and effect, without material default by any party and without any claims made for the right of setoff, except as expressly provided by the terms of such Contracts or as disclosed to Purchaser in writing at the time of such delivery. The Contracts constitute the entire agreements with such vendors relating to the Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excluding, however, the Leases and Permitted Encumbrances) affecting the Property which will survive the Closingdeleted Mortgage Loans.
(f) At Without limiting the Closingremedies of the Purchaser, there will be no outstanding contracts the Certificateholders or the Trustee on behalf of the Certificateholders pursuant to this Agreement, it is acknowledged that the representations and warranties are being made by Seller for risk allocation purposes. This Section 3 provides the construction sole remedy available to the Certificateholders, or repair the Trustee on behalf of the Certificateholders, respecting any Document Defect in a Mortgage File or any Breach of any improvements to the Improvements which have not been fully paid for, and Seller shall cause to be discharged all mechanics’ representation or materialmen’s liens arising from any labor or materials furnished to the Improvements prior to the Closing.
(g) Except as warranty set forth in Exhibit K attached hereto, there are no pending or, or required to Seller’s actual knowledge (without any duty of inquiry or investigation), threatened legal proceedings or actions of any kind or character affecting the Property or Seller’s interest therein, including, without limitation, condemnation proceedingsbe made pursuant to this Section 3.
(h) Seller has not received any actual written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or the Property relating in any way to a Release or compliance with Environmental Laws. For purposes of this Agreement, the phrase “Environmental Laws” shall mean any federal, state or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materials, or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 00
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Citigroup Commercial Mortgage Trust 2004-C2)
Representations, Warranties and Covenants of Seller. (a) The Seller hereby represents, represents and warrants to and covenants to Purchaser that with the following matters are true and correct Purchaser, as of the execution of this Agreement and will also be true and correct as of the Closingdate hereof, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx Xxxxxxxxxthat:
(ai) The Seller is a statutory trust duly formed national banking association organized and validly existing and in good standing under the banking laws of the State United States and possesses all requisite authority, power, licenses, permits and franchises to carry on its business as currently conducted by it and to execute, deliver and comply with its obligations under the terms of Delaware. this Agreement.
(ii) This Agreement has been, been duly and all the documents executed by Seller which are to be delivered to Purchaser at the Closing will be, duly validly authorized, executed and delivered by the Seller and, assuming due authorization, execution and will be delivery hereof by the Purchaser, constitutes a legal, valid and binding obligations obligation of Seller the Seller, enforceable against the Seller in accordance with their respective terms (its terms, except to the extent that as such enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other laws affecting the enforcement of creditors' rights in general, as they may be applied in the context of the insolvency of a national banking association, and by general equity principles relating to (regardless of whether such enforcement is considered in a proceeding in equity or limiting the right of contracting parties generallyat law), will be sufficient and by public policy considerations underlying the securities laws, to convey title (if they the extent that such public policy considerations limit the enforceability of the provisions of this Agreement which purport to do soprovide indemnification from liabilities under applicable securities laws.
(iii) The execution and delivery of this Agreement by the Seller and the Seller's performance and compliance with the terms of this Agreement will not (A) violate the Seller's articles of association or By-Laws, (B) violate any provisions law or regulation or any administrative decree or order to which it is subject or (C) constitute a material default (or an event which, with notice or lapse of time, or both, would constitute a material default) under, or result in the breach of, any material contract, agreement or other instrument to which the Seller is a party or to by which the Property or Seller is bound.
(iv) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or other governmental agency or body, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or have consequences that would materially and adversely affect its performance hereunder.
(v) The Seller is not a party to or bound by any agreement or instrument or subject to any articles of association, bylaws or bound. Subject any other corporate restriction or any judgment, order, writ, injunction, decree, law or regulation that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the ability of the Seller to perform its obligations under this Agreement or that requires the consent of any third person to the satisfaction of Section 8(a)(i) below, no consent, waiver or approval by any third party is required in connection with the execution and delivery by Seller of this Agreement or the performance by the Seller of its obligations under this Agreement (except to the extent such consent has been obtained).
(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 or the consummation of the transactions contemplated by this Agreement except as have previously been obtained, and no bulk sale law applies to such transactions.
(vii) No litigation is pending or, to the Seller's knowledge, threatened against the Seller that would, in the Seller's good faith and reasonable judgment, prohibit its entering into this Agreement or materially and adversely affect the performance by the Seller of its obligations to be performed by Seller under this Agreement.
(viii) Under generally accepted accounting principles ("GAAP") and for federal income tax purposes, the Seller will report the transfer of the Mortgage Loans to the Purchaser as a sale of the Mortgage Loans to the Purchaser in exchange for consideration consisting of a cash amount equal to the Aggregate Purchase Price. The consideration received by the Seller upon the sale of the Mortgage Loans to the Purchaser will constitute reasonably equivalent value at least equal to the fair market value of the Mortgage Loans. The Seller will be solvent at all relevant times prior to, and will not be rendered insolvent by, the sale of the Mortgage Loans to the Purchaser. The Seller is not selling the Mortgage Loans to the Purchaser with any intent to hinder, delay or defraud any of the creditors of the Seller.
(b) Except The Seller hereby makes the representations and warranties contained in Schedule I, Schedule II and Schedule III hereto for the benefit of the Purchaser and the Trustee for the benefit of the Certificateholders as set forth on Exhibit M attached heretoof the Closing Date, Seller has not received from any governmental authority written notice, with respect to (and Seller has no actual knowledge (without any duty of inquiry or investigationsolely with respect to) of any violation of any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable to the Property, or any part thereof, that will not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change to the zoning classification or any proceedings to widen or realign any streets or highways adjacent to the Property or of any condemnation proceedingseach FUNB Mortgage Loan.
(c) To Seller’s actual knowledgeIf the Seller receives written notice of a Document Defect or a Breach pursuant to Section 2.03(a) of the Pooling and Servicing Agreement relating to a FUNB Mortgage Loan, then the Seller shall not later than 90 days from receipt of such notice (or, in the case of a Document Defect or Breach relating to a FUNB Mortgage Loan not being a "qualified mortgage" within the meaning of the REMIC Provisions (a "Qualified Mortgage"), not later than 90 days of any party to the Pooling and Servicing Agreement discovering such Document Defect or Breach provided the Seller receives such notice in a timely manner), if such Document Defect or Breach shall materially and adversely affect the value of the related FUNB Mortgage Loan or the interest of the Certificateholders therein, cure such Document Defect or Breach, as the case may be, in all material respects, which shall include payment of losses and any Additional Trust Fund Expenses associated therewith or, if such Document Defect or Breach (other than omissions solely due to a document not having been returned by the related recording office) cannot be cured within such 90-day period, (i) repurchase the operating statements, income and expense reports and all other contracts affected FUNB Mortgage Loan at the applicable Purchase Price not later than the end of such 90-day period or documents required to be delivered to Purchaser pursuant to this Agreement are true, correct and complete copies; and (ii) substitute a Qualified Substitute Mortgage Loan for such affected FUNB Mortgage Loan not later than the end of such 90-day period (and in no event later than the second anniversary of the Closing Date) and pay the Master Servicer for deposit into the Certificate Account, any Substitution Shortfall Amount in connection therewith; provided, however, that if such Document Defect or Breach is capable of being cured but not within such 90-day period, such Document Defect or Breach does not relate to the FUNB Mortgage Loan not being treated as a Qualified Mortgage, and the Seller has commenced and is diligently proceeding with the cure of such Document Defect or Breach within such 90-day period, such Seller shall have an additional 90 days to complete such cure (or, failing such cure, to repurchase or substitute the related FUNB Mortgage Loan); and provided, further, that with respect to such additional 90-day period the Seller shall have delivered an Officer's Certificate to the Trustee setting forth the reason such Document Defect or Breach is not capable of being cured within the initial 90-day period and what actions the Seller is pursuing in connection with the cure thereof and stating that the Seller anticipates that such Document Defect or Breach will be cured within the additional 90-day period; and provided; further, that no Document Defect (other than with respect to a Mortgage Note, Mortgage, title insurance policy, Ground Lease or any letter of credit) shall be considered to materially and adversely affect the interests of the Certificateholders or the value of the related FUNB Mortgage Loan unless the document with respect to which the Document Defect exists is required in connection with an imminent enforcement of the Mortgagee's rights or remedies under the related FUNB Mortgage Loan, defending any claim asserted by any borrower or third party with respect to the FUNB Mortgage Loan, establishing the validity or priority of any lien or any collateral securing the FUNB Mortgage Loan or for any immediate servicing obligations. For a period of two years from the Closing Date, so long as there remains any Mortgage File relating to a FUNB Mortgage Loan as to which there is any uncured Document Defect or Breach, the Seller shall provide the Officer's Certificate to the Trustee described above as to the reasons such Document Defect or Breach remains uncured and as to the actions being taken to pursue cure; provided, however, that, without limiting the effect of the forgoing provisions of this Section 3(c), if such Document Defect or Breach shall materially and adversely affect the value of such FUNB Mortgage Loan or the interests of the holders of the Certificates therein (subject to the last proviso in the immediately preceding sentence), the Seller shall in all contracts cases on or documents required prior to the second anniversary of the Closing Date either cause such Document Defect or Breach to be cured or repurchase the affected FUNB Mortgage Loan. Notwithstanding the foregoing, the delivery of a commitment to issue a policy of lender's title insurance as described in clause 12 of Schedule I hereof in lieu of the delivery of the actual policy of lender's title insurance shall not be considered a Document Defect or Breach with respect to any Mortgage File if such actual policy of insurance is delivered to Purchaser pursuant to this Agreement are in full force and effect, without material default by any party and without any right of set-off except as disclosed in writing at the time of such deliveryTrustee or a Custodian on its behalf not later than the 90th day following the Closing Date.
(d) There is no master lease In connection with any permitted repurchase or substitution of one or more FUNB Mortgage Loans contemplated hereby, upon receipt of a certificate from a Servicing Officer certifying as to the receipt of the Property Purchase Price or Substitution Shortfall Amount(s), as applicable, in the Certificate Account, and the delivery of the Mortgage File(s) and the Servicing File(s) for the related Qualified Substitute Mortgage Loan(s) to any affiliate of the Custodian and the Master Servicer, respectively, if applicable (i) the Trustee shall execute and deliver such endorsements and assignments as are provided to it by the Master Servicer, in each case without recourse, representation or warranty, as shall be necessary to vest in the Seller, the legal and beneficial ownership of each repurchased FUNB Mortgage Loan or if such master lease existssubstituted FUNB Mortgage Loan, Seller as applicable, and (ii) the Trustee, the Custodian, the Master Servicer and the Special Servicer shall cause such master lease each tender to be terminated at Closing without Purchaser paying any termination fee. The Rent Roll attached hereto as Exhibit B is truethe Seller, correct and complete in upon delivery to each of them of a receipt executed by the Seller, all material respects as portions of the date set forth on the Rent Roll. As of the Closing, the Rent Roll delivered at the Closing will be true, correct and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default by any party and without any right of setoff, except as expressly provided by the terms of such Leases or as disclosed on the Rent Roll attached hereto. The copies of the Leases Mortgage File and other agreements with the tenants under the Leases (the “Tenants”) delivered documents pertaining to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating to the Real Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real PropertyFUNB Mortgage Loan possessed by it.
(e) Exhibit J attached hereto is a true and complete schedule of all Without limiting the remedies of the Contracts (as hereinafter defined in Section 7)Purchaser, true, complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy the Certificateholders or the Trustee on behalf of the management agreement currently in effect with respect Certificateholders pursuant to this Agreement, it is acknowledged that the representations and warranties are being made for risk allocation purposes. Subject to Section 7 of this Agreement and Section 8 of the Xxxxxxx MLPA, this Section 3 and Section 3 of the Xxxxxxx MLPA provide the sole remedy available to the Property. To Seller’s actual knowledgeCertificateholders, or the Contracts are Trustee on behalf of the Certificateholders, respecting any Document Defect in full force and effect, without material default by a Mortgage File or any party and without any claims made for the right of setoff, except as expressly provided by the terms of such Contracts or as disclosed to Purchaser in writing at the time of such delivery. The Contracts constitute the entire agreements with such vendors relating to the Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excluding, however, the Leases and Permitted Encumbrances) affecting the Property which will survive the Closing.
(f) At the Closing, there will be no outstanding contracts made by Seller for the construction or repair Breach of any improvements to the Improvements which have not been fully paid for, and Seller shall cause to be discharged all mechanics’ representation or materialmen’s liens arising from any labor or materials furnished to the Improvements prior to the Closing.
(g) Except as warranty set forth in Exhibit K attached hereto, there are no pending or, or required to Seller’s actual knowledge (without any duty be made pursuant to Section 3 of inquiry or investigation), threatened legal proceedings or actions of any kind or character affecting the Property or Seller’s interest therein, including, without limitation, condemnation proceedings.
(h) Seller has not received any actual written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller this Agreement or the Property relating in any way to a Release or compliance with Environmental Laws. For purposes of this Agreement, the phrase “Environmental Laws” shall mean any federal, state or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materials, or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 00Xxxxxxx MLPA.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (First Union Commercial Mortgage Securities Inc)
Representations, Warranties and Covenants of Seller. Seller hereby represents, warrants and covenants to Purchaser that makes the following matters are true representations and correct warranties to Buyer as of the execution of this Agreement and will also be true and correct as of the Closing, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx XxxxxxxxxEffective Date:
(a) The Seller is a statutory trust duly formed County Sanitation District organized and validly existing under the laws of County Sanitation District Act, Health and Safety Code Section 4700 et. Seq., is qualified to do business in the State of Delaware. This Agreement has beenCalifornia, and has the legal power and authority to own and lease its properties, to carry on its business as now being conducted and (in the case of Seller) to enter into this Agreement and (in the case of each Seller Party) each Seller Ancillary Document to which it may be party and, carry out the transactions contemplated hereby and thereby and perform and carry out all the documents executed by Seller which are covenants and obligations on its part to be delivered performed under and pursuant to Purchaser at this Agreement and all Seller Ancillary Documents.
(b) The execution, delivery and performance by the Closing Seller and the Seller Parties of this Agreement and all Seller Ancillary Documents, as applicable, have been duly authorized by all necessary action, and do not and will not require any consent or approval other than those which have already been obtained.
(c) The execution and delivery of this Agreement and all Seller Ancillary Documents, the consummation of the transactions contemplated hereby and thereby and the fulfillment of and compliance with the provisions of this Agreement and the Seller Ancillary Documents, do not and will not conflict with or constitute a breach of or a default under, any of the terms, conditions or provisions of any Requirement of Law, or any organizational documents, deed of trust, mortgage, loan agreement, other evidence of indebtedness or any other material agreement or instrument to which any Seller Party is a party or by which it or any of its property is bound, or result in a breach of or a default under any of the foregoing or result in or require the creation or imposition of any Lien upon any of the properties or assets of any Seller Party (except as contemplated or permitted hereby), and each Seller Party has obtained or shall timely obtain all Permits required for the performance of its obligations hereunder and thereunder, as the case may be, duly authorizedand Seller will timely obtain all Permits required for the operation of the Facility in accordance with Prudent Utility Practices, executed the requirements of this Agreement, the Seller Ancillary Documents and delivered by all applicable Requirements of Law.
(d) Each of this Agreement and the Seller and will be Ancillary Documents constitutes the legal, valid and binding obligations obligation of each Seller Party which is party thereto enforceable against Seller in accordance with their respective terms (its terms, except to the extent that as such enforcement enforceability may be limited by applicable bankruptcy, insolvency, moratorium and other principles reorganization or similar laws relating to or limiting affecting the right enforcement of contracting parties generally)creditors’ rights generally or by general equitable principles, will regardless of whether such enforceability is considered in a proceeding in equity or at law.
(e) There is no pending, or to the knowledge of the Seller, threatened action or proceeding affecting any Seller Party before any Governmental Authority, which purports to affect the legality, validity or enforceability of this Agreement or any of the Seller Ancillary Documents.
(f) None of the Seller Parties is in violation of any Requirement of Law, which violations, individually or in the aggregate, would reasonably be sufficient expected to convey title result in a material adverse effect on the business, assets, operations, condition (if they purport financial or otherwise) or prospects of any Seller Party, or the ability of any Seller Party to do soperform any of its obligations under this Agreement or any Seller Ancillary Document.
(g) The Seller Parties have (i) not entered into this Agreement or any Seller Ancillary Document with the actual intent to hinder, delay or defraud any creditor, and (ii) received reasonably equivalent value in exchange for their respective obligations under this Agreement and the Seller Ancillary Documents. No petition in bankruptcy has been filed against any of the Seller Parties, and none of the Seller Parties nor any of their respective constituent Persons have ever made an assignment for the benefit of creditors or taken advantage of any insolvency act for its benefit as a debtor.
(h) None of the Seller Parties has any reason to believe that any of the Permits required to maintain or operate the Facility in accordance with the Requirements will not violate any provisions be timely obtained in the ordinary course of business.
(i) All Tax returns and reports of each Seller Party required to be filed by it have been timely filed, and all Taxes shown on such Tax returns to be due and payable and all assessments, fees and other governmental charges upon the Seller Parties and upon its properties, assets, income, business and franchises that are due and payable have been paid when due and payable. None of the Seller Parties knows of any material agreement proposed Tax assessment against any of the Seller Parties that is not being actively contested by it in good faith and by appropriate proceeding.
(j) Seller owns or possesses, or will own or possess in a timely manner, all patents, rights to which Seller is a party or to which patents, trademarks, copyrights, and licenses necessary for the Property or Seller is subject or bound. Subject to performance by the satisfaction of Section 8(a)(i) below, no consent, waiver or approval by any third party is required in connection with the execution and delivery by Seller of this Agreement or and the performance by Seller Ancillary Documents and the transactions contemplated thereby, without any conflict with the rights of the obligations to be performed by Seller under this Agreementothers.
(bk) Except as set forth on Exhibit M attached hereto, Seller has not received from assigned, transferred, conveyed, encumbered, sold, or otherwise disposed of any governmental authority written noticeFacility Output except as permitted herein.
(l) The Site is within the legal jurisdiction of the State of California under the California Regulation for Mandatory Reporting of Greenhouse Gas Emissions, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any violation of any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable to the PropertySite, or any part thereof, that will is not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change to the zoning classification or any proceedings to widen or realign any streets or highways adjacent to the Property or located on lands of any condemnation proceedings.
(c) To Seller’s actual knowledge, (i) the operating statements, income and expense reports and all other contracts Indian Reservation or documents required to be delivered to Purchaser pursuant to this Agreement that are true, correct and complete copies; and (ii) all contracts or documents required to be delivered to Purchaser pursuant to this Agreement are in full force and effect, without material default by any party and without any right of set-off except as disclosed in writing at the time of such delivery.
(d) There is no master lease of the Property to any affiliate of Seller, or if such master lease exists, Seller shall cause such master lease to be terminated at Closing without Purchaser paying any termination fee. The Rent Roll attached hereto as Exhibit B is true, correct and complete in all material respects as of the date set forth on the Rent Roll. As of the Closing, the Rent Roll delivered at the Closing will be true, correct and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default by any party and without any right of setoff, except as expressly provided by the terms of such Leases or as disclosed on the Rent Roll attached hereto. The copies of the Leases and other agreements with the tenants under the Leases (the “Tenants”) delivered to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating to the Real Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real Property.
(e) Exhibit J attached hereto is a true and complete schedule of all of the Contracts (as hereinafter defined in Section 7), true, complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy of the management agreement currently in effect with respect to the Property. To Seller’s actual knowledge, the Contracts are in full force and effect, without material default by any party and without any claims made for the right of setoff, except as expressly provided by the terms of such Contracts or as disclosed to Purchaser in writing at the time of such delivery. The Contracts constitute the entire agreements with such vendors relating to the Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excluding, however, the Leases and Permitted Encumbrances) affecting the Property which will survive the Closing.
(f) At the Closing, there will be no outstanding contracts made by Seller for the construction or repair control of any improvements to the Improvements which have not been fully paid for, and Seller shall cause to be discharged all mechanics’ or materialmen’s liens arising from any labor or materials furnished to the Improvements prior to the ClosingIndian Tribe.
(g) Except as set forth in Exhibit K attached hereto, there are no pending or, to Seller’s actual knowledge (without any duty of inquiry or investigation), threatened legal proceedings or actions of any kind or character affecting the Property or Seller’s interest therein, including, without limitation, condemnation proceedings.
(h) Seller has not received any actual written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or the Property relating in any way to a Release or compliance with Environmental Laws. For purposes of this Agreement, the phrase “Environmental Laws” shall mean any federal, state or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materials, or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 00
Appears in 1 contract
Samples: Power Sales Agreement
Representations, Warranties and Covenants of Seller. (a) The Seller hereby represents, represents and warrants to and covenants to Purchaser that with the following matters are true and correct Purchaser, as of the execution of this Agreement and will also be true and correct as of the Closingdate hereof, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx Xxxxxxxxxthat:
(ai) The Seller is a statutory trust national banking association duly formed and organized, validly existing and in good standing under the laws of the State United States and the Seller has taken all necessary corporate action to authorize the execution, delivery and performance of Delaware. this Agreement by it, and has the power and authority to execute, deliver and perform this Agreement and all transactions contemplated hereby.
(ii) This Agreement has been, been duly and all the documents executed by Seller which are to be delivered to Purchaser at the Closing will be, duly validly authorized, executed and delivered by Seller the Seller, all requisite action by the Seller's directors and will be legalofficers has been taken in connection therewith, valid and (assuming the due authorization, execution and delivery hereof by the Purchaser) this Agreement constitutes the valid, legal and binding obligations agreement of Seller the Seller, enforceable against the Seller in accordance with their respective terms (its terms, except to the extent that as such enforcement may be limited by applicable (A) laws relating to bankruptcy, insolvency, moratorium and fraudulent transfer, reorganization, receivership, conservatorship or moratorium, (B) other principles laws relating to or limiting affecting the right rights of contracting parties creditors generally, or (C) general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law), will be sufficient to convey title .
(if they purport to do soiii) The execution and delivery of this Agreement by the Seller and the Seller's performance and compliance with the terms of this Agreement will not (A) violate the Seller's articles of association or bylaws, (B) violate any provisions law or regulation or any administrative decree or order to which it is subject if compliance therewith is necessary (1) to ensure the enforceability of this Agreement or (2) for the Seller to perform its duties and obligations under this Agreement, or (C) constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material contract, agreement or other instrument to which the Seller is a party or to by which the Property or Seller is bound, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or materially and adversely affect its performance hereunder.
(iv) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or other governmental agency or body, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or materially and adversely affect its performance hereunder.
(v) The Seller is not a party to or bound by any agreement or instrument or subject to any articles of association, bylaws or bound. Subject any other corporate restriction or any judgment, order, writ, injunction, decree, law or regulation that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the ability of the Seller to perform its obligations under this Agreement or that requires the consent of any third person to the satisfaction of Section 8(a)(i) below, no consent, waiver or approval by any third party is required in connection with the execution and delivery by Seller of this Agreement or the performance by the Seller of its obligations under this Agreement (except to the extent such consent has been obtained).
(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 or the consummation of the transactions contemplated by this Agreement except as have previously been obtained, and no bulk sale law applies to such transactions.
(vii) None of the sale of the Mortgage Loans by the Seller, the transfer of the Mortgage Loans to the Trustee, and the execution, delivery or performance of this Agreement by the Seller, results or will result in the creation or imposition of any lien on any of the Seller's assets or property that would have a material adverse effect upon the Seller's ability to perform its duties and obligations under this Agreement or materially impair the ability of the Purchaser to be performed realize on the Mortgage Loans.
(viii) There is no action, suit, proceeding or investigation pending or to the knowledge of the Seller, threatened against the Seller in any court or by or before any other governmental agency or instrumentality which would, in the Seller's good faith and reasonable judgment, prohibit its entering into this Agreement or materially and adversely affect the validity of this Agreement or the performance by the Seller of its obligations under this Agreement.
(ix) Under generally accepted accounting principles ("GAAP") and for federal income tax purposes, the Seller will report the transfer of the Mortgage Loans to the Purchaser as a sale of the Mortgage Loans to the Purchaser in exchange for consideration consisting of a cash amount equal to the Purchase Consideration. The consideration received by the Seller upon the sale of the Mortgage Loans to the Purchaser will constitute at least reasonably equivalent value and fair consideration for the Mortgage Loans. The Seller will be solvent at all relevant times prior to, and will not be rendered insolvent by, the sale of the Mortgage Loans to the Purchaser. The Seller is not selling the Mortgage Loans to the Purchaser with any intent to hinder, delay or defraud any of the creditors of the Seller.
(x) The Prospectus Supplement contains all the information that is required to be provided in respect of the Seller (that arise from its role as "sponsor" (within the meaning of Regulation AB)), the Mortgage Loans, the related Mortgagors and the related Mortgaged Properties pursuant to Regulation AB.
(b) Except The Seller hereby makes the representations and warranties contained in Schedule I hereto for the benefit of the Purchaser and the Trustee for the benefit of the Certificateholders as of the Closing Date (unless a different date is specified therein), with respect to (and solely with respect to) each Mortgage Loan, subject, however, to the exceptions set forth on Exhibit M attached hereto, Seller has not received from any governmental authority written notice, and Seller has no actual knowledge (without any duty Annex A to Schedule I of inquiry or investigation) of any violation of any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable to the Property, or any part thereof, that will not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change to the zoning classification or any proceedings to widen or realign any streets or highways adjacent to the Property or of any condemnation proceedingsthis Agreement.
(c) To Seller’s actual knowledgeIf the Seller discovers or receives written notice of a Document Defect or a Breach relating to a Mortgage Loan pursuant to Section 2.03(a) of the Pooling and Servicing Agreement, then the Seller shall, not later than 90 days from such discovery or receipt of such notice (or, in the case of a Document Defect or Breach relating to a Mortgage Loan not being a "qualified mortgage" within the meaning of the REMIC Provisions (a "Qualified Mortgage"), not later than 90 days from any party to the Pooling and Servicing Agreement discovering such Document Defect or Breach, provided the Seller receives such notice in a timely manner), if such Document Defect or Breach materially and adversely affects the value of the related Mortgage Loan or the interests of the Certificateholders therein, cure such Document Defect or Breach, as the case may be, in all material respects, which shall include payment of losses and any Additional Trust Fund Expenses associated therewith or, if such Document Defect or Breach (other than omissions due solely to a document not having been returned by the related recording office) cannot be cured within such 90-day period, (i) repurchase the operating statementsaffected Mortgage Loan (which, income for the purposes of this clause (i), shall include an REO Loan) at the applicable Purchase Price (as defined in the Pooling and expense reports Servicing Agreement) not later than the end of such 90-day period or (ii) substitute a Qualified Substitute Mortgage Loan for such affected Mortgage Loan (which, for purposes of this clause (ii), shall include an REO Loan) not later than the end of such 90-day period (and all other contracts in no event later than the second anniversary of the Closing Date) and pay the applicable Master Servicer for deposit into its Collection Account any Substitution Shortfall Amount in connection therewith; provided, however, that, unless the Document Defect or documents required Breach would cause the Mortgage Loan not to be a Qualified Mortgage, if such Document Defect or Breach is capable of being cured but not within such 90-day period and the Seller has commenced and is diligently proceeding with the cure of such Document Defect or Breach within such 90-day period, the Seller shall have an additional 90 days to complete such cure (or, failing such cure, to repurchase or substitute the related Mortgage Loan (which, for purposes of such repurchase or substitution, shall include an REO Loan)); and provided, further, that with respect to such additional 90-day period, the Seller shall have delivered an officer's certificate to Purchaser pursuant the Certificate Administrator setting forth the reason(s) such Document Defect or Breach is not capable of being cured within the initial 90-day period and what actions the Seller is pursuing in connection with the cure thereof and stating that the Seller anticipates that such Document Defect or Breach will be cured within the additional 90-day period; and provided, further, that no Document Defect (other than with respect to this Agreement the Specially Designated Mortgage Loan Documents) shall be considered to materially and adversely affect the interests of the Certificateholders or the value of the related Mortgage Loan unless the document with respect to which the Document Defect exists is required in connection with an imminent enforcement of the mortgagee's rights or remedies under the related Mortgage Loan, defending any claim asserted by any Mortgagor or third party with respect to the Mortgage Loan, establishing the validity or priority of any lien or any collateral securing the Mortgage Loan or for any immediate servicing obligations.
(1) the weighted average debt service coverage ratio for all the remaining Crossed Loans for the four calendar quarters immediately preceding such repurchase or substitution is not less than the weighted average debt service coverage ratio for all such Crossed Loans, including the affected Crossed Loan, for the four calendar quarters immediately preceding such repurchase or substitution, and (2) the weighted average loan to-value ratio for the remaining Crossed Loans, determined at the time of repurchase or substitution, based upon an appraisal obtained by the Special Servicer at the expense of the Seller shall not be greater than the weighted average loan-to-value ratio for all such Crossed Loans, including the affected Crossed Loan determined at the time of repurchase or substitution, based upon an appraisal obtained by the Special Servicer at the expense of the Seller; provided, that if such debt service coverage and loan-to-value criteria are truesatisfied, correct any other Crossed Loan (that is not the Crossed Loan directly affected by the subject Document Defect or Breach), shall be released from its cross-collateralization and complete copiescross-default provision so long as such Crossed Loan (that is not the Crossed Loan directly affected by the subject Document Defect or Breach) is held in the Trust Fund; and provided, further, that the repurchase or replacement of less than all such Crossed Loans and the release of any Crossed Loan from a cross-collateralization and cross-default provision shall be further subject to (i) the delivery by the Seller to the Certificate Administrator, at the expense of the Seller, of an Opinion of Counsel to the effect that such release would not cause either of REMIC I or REMIC II to fail to qualify as a REMIC under the Code or result in the imposition of any tax on "prohibited transactions" or "contributions" after the Startup Day under the REMIC Provisions and (ii) the consent of the Controlling Class Representative (if one is then acting), which consent shall not be unreasonably withheld or delayed. In the event that one or more of such other Crossed Loans satisfy the aforementioned criteria, the Seller may elect either to repurchase or substitute for only the affected Crossed Loan as to which the related Document Defect or Breach exists or to repurchase or substitute for all contracts of the Crossed Loans in the related Crossed Loan Group. All documentation relating to the termination of the cross-collateralization provisions of a Crossed Loan being repurchased shall be prepared at the expense of the Seller and, where required, with the consent of the related Mortgagor. For a period of two years from the Closing Date, so long as there remains any Mortgage File relating to a Mortgage Loan as to which there is any uncured Document Defect or documents required Breach known to the Seller, the Seller shall provide, once every ninety days, the officer's certificate to the Certificate Administrator described above as to the reason(s) such Document Defect or Breach remains uncured and as to the actions being taken to pursue cure; provided, however, that, without limiting the effect of the foregoing provisions of this Section 3(c), if such Document Defect or Breach shall materially and adversely affect the value of such Mortgage Loan or the interests of the holders of the Certificates therein (subject to the second and third provisos in the sole sentence of the preceding paragraph), the Seller shall in all cases on or prior to the second anniversary of the Closing Date either cause such Document Defect or Breach to be delivered to Purchaser pursuant to this Agreement are in full force and effect, without material default by any party and without any right of set-off except as disclosed in writing at cured or repurchase or substitute for the time of such delivery.
(d) There is no master lease of the Property to any affiliate of Seller, or if such master lease exists, Seller shall cause such master lease to be terminated at Closing without Purchaser paying any termination feeaffected Mortgage Loan. The Rent Roll attached hereto delivery of a commitment to issue a policy of lender's title insurance as Exhibit B is true, correct and complete described in all material respects as of the date representation 8 set forth on the Rent Roll. As Schedule I hereto in lieu of the Closing, the Rent Roll delivered at the Closing will be true, correct and complete. The copies delivery of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default by any party and without any right policy of setoff, except as expressly provided by the terms of such Leases lender's title insurance shall not be considered a Document Defect or as disclosed on the Rent Roll attached hereto. The copies of the Leases and other agreements with the tenants under the Leases (the “Tenants”) delivered to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating to the Real Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real Property.
(e) Exhibit J attached hereto is a true and complete schedule of all of the Contracts (as hereinafter defined in Section 7), true, complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy of the management agreement currently in effect Breach with respect to the Property. To Seller’s any Mortgage File if such actual knowledge, the Contracts are in full force and effect, without material default by any party and without any claims made for the right policy of setoff, except as expressly provided by the terms of such Contracts or as disclosed to Purchaser in writing at the time of such delivery. The Contracts constitute the entire agreements with such vendors relating insurance is delivered to the Property, have Custodian on its behalf not been materially amended, modified or supplemented, except for such amendments, modifications and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excluding, however, later than the Leases and Permitted Encumbrances) affecting 180th day following the Property which will survive the ClosingClosing Date.
(f) At the Closing, there will be no outstanding contracts made by Seller for the construction or repair of any improvements to the Improvements which have not been fully paid for, and Seller shall cause to be discharged all mechanics’ or materialmen’s liens arising from any labor or materials furnished to the Improvements prior to the Closing.
(g) Except as set forth in Exhibit K attached hereto, there are no pending or, to Seller’s actual knowledge (without any duty of inquiry or investigation), threatened legal proceedings or actions of any kind or character affecting the Property or Seller’s interest therein, including, without limitation, condemnation proceedings.
(h) Seller has not received any actual written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or the Property relating in any way to a Release or compliance with Environmental Laws. For purposes of this Agreement, the phrase “Environmental Laws” shall mean any federal, state or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materials, or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 00
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (ML-CFC Commercial Mortgage Trust 2007-5)
Representations, Warranties and Covenants of Seller. (a) The Seller hereby represents, represents and warrants to and covenants to Purchaser that with the following matters are true and correct Purchaser, as of the execution of this Agreement and will also be true and correct as of the Closingdate hereof, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx Xxxxxxxxxthat:
(ai) The Seller is a statutory trust duly formed and organized or formed, as the case may be, validly existing and in good standing as a legal entity under the laws of the State of Delaware. Delaware and possesses all requisite authority, power, licenses, permits and franchises to carry on its business as currently conducted by it and to execute, deliver and comply with its obligations under the terms of this Agreement.
(ii) This Agreement has been, been duly and all the documents executed by Seller which are to be delivered to Purchaser at the Closing will be, duly validly authorized, executed and delivered by the Seller and, assuming due authorization, execution and will be delivery hereof by the Purchaser, constitutes a legal, valid and binding obligations obligation of Seller the Seller, enforceable against the Seller in accordance with their respective terms (its terms, except to the extent that as such enforcement may be limited by applicable (A) bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws affecting the enforcement of creditors' rights in general, and other (B) general equity principles relating to (regardless of whether such enforcement is considered in a proceeding in equity or limiting at law).
(iii) The execution and delivery of this Agreement by the right Seller and the Seller's performance and compliance with the terms of contracting parties generally), will be sufficient to convey title (if they purport to do so) and this Agreement will not (A) violate the Seller's organizational documents, (B) violate any provisions law or regulation or any administrative decree or order to which the Seller is subject or (C) constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material contract, agreement or other instrument to which the Seller is a party or to by which the Property or Seller is subject bound.
(iv) The Seller is not in default with respect to any order or bound. Subject decree of any court or any order, regulation or demand of any federal, state, municipal or other governmental agency or body, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or have consequences that would materially and adversely affect its performance hereunder.
(v) The Seller is not a party to the satisfaction of Section 8(a)(i) below, no consent, waiver or approval bound by any agreement or instrument or subject to any organizational document or any other corporate or limited liability company (as applicable) restriction or any judgment, order, writ, injunction, decree, law or regulation that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the ability of the Seller to perform its obligations under this Agreement or that requires the consent of any third party is required in connection with person to the execution and delivery by Seller of this Agreement by the Seller or the performance by the Seller of the its obligations to be performed by Seller under this Agreement.
(vi) Except for the recordation and/or filing of assignments and other transfer documents with respect to the Mortgage Loans, as contemplated by Section 2(d) hereof, no consent, approval, authorization or order of, registration or filing with, or notice to, 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; and no bulk sale law applies to such transactions.
(vii) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller that would, in the Seller's good faith and reasonable judgment, prohibit its entering into this Agreement or materially and adversely affect the performance by the Seller of its obligations under this Agreement.
(viii) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Seller are pending or contemplated. In addition, the Seller hereby further represents and warrants to, and covenants with, the Purchaser, as of the date hereof, that:
(i) Under generally accepted accounting principles ("GAAP") and for federal income tax purposes, the Seller will report the transfer of the Mortgage Loans to the Purchaser, as provided herein, as a sale of the Mortgage Loans to the Purchaser in exchange for the consideration specified in Section 1 hereof. In connection with the foregoing, the Seller shall cause all of its records to reflect such transfer as a sale (as opposed to a secured loan). The consideration received by the Seller upon the sale of the Mortgage Loans to the Purchaser will constitute at least reasonably equivalent value and fair consideration for the Mortgage Loans. The Seller will be solvent at all relevant times prior to, and will not be rendered insolvent by, the sale of the Mortgage Loans to the Purchaser. The Seller is not selling the Mortgage Loans to the Purchaser with any intent to hinder, delay or defraud any of the creditors of the Seller. After giving effect to its transfer of the Mortgage Loans to the Purchaser, as provided herein, the value of the Seller's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Seller's debts and obligations, including contingent and unliquidated debts and obligations of the Seller, and the Seller will not be left with unreasonably small assets or capital with which to engage in and conduct its business. The Mortgage Loans do not constitute all or substantially all of the assets of the Seller. The Seller does not intend to, and does not believe that it will, incur debts or obligations beyond its ability to pay such debts and obligations as they mature.
(ii) The Seller will acquire the Seller's Residual Interest Certificates for its own account and not with a view to, or sale or transfer in connection with, any distribution thereof, in whole or in part, in any manner that would violate the Securities Act or any applicable state securities laws.
(iii) The Seller understands that (A) the Seller's Residual Interest Certificates have not been and will not be registered under the Securities Act or registered or qualified under any applicable state securities laws, (B) neither the Purchaser nor any other party is obligated so to register or qualify the Seller's Residual Interest Certificates and (C) neither the Seller's Residual Interest Certificates nor any security issued in exchange therefor or in lieu thereof may be resold or transferred unless it is (1) registered pursuant to the Securities Act and registered or qualified pursuant to any applicable state securities laws or (2) sold or transferred in a transaction which is exempt from such registration and qualification and the Certificate Registrar has received the certifications and/or opinions of counsel required by the Pooling and Servicing Agreement.
(iv) The Seller understands that it may not sell or otherwise transfer the Seller's Residual Interest Certificates, any security issued in exchange therefor or in lieu thereof or any interest in the foregoing except in compliance with the provisions of Section 5.02 of the Pooling and Servicing Agreement, which provisions it has or, as of the Closing Date, will have carefully reviewed, and that the Seller's Residual Interest Certificates will bear legends that identify the transfer restrictions to which such Certificates are subject.
(v) Neither the Seller nor anyone acting on its behalf has (A) offered, transferred, pledged, sold or otherwise disposed of any Seller's Residual Interest Certificate, any interest in a Seller's Residual Interest Certificate or any other similar security to any person in any manner, (B) solicited any offer to buy or accept a transfer, pledge or other disposition of any Seller's Residual Interest Certificate, any interest in a Seller's Residual Interest Certificate or any other similar security from any person in any manner, (C) otherwise approached or negotiated with respect to any Seller's Residual Interest Certificate, any interest in a Seller's Residual Interest Certificate or any other similar security with any person in any manner, (D) made any general solicitation by means of general advertising or in any other manner, or (E) taken any other action, that (in the case of any of the acts described in clauses (A) through (E) above) would constitute a distribution of the Seller's Residual Interest Certificates under the Securities Act, would render the disposition of the Seller's Residual Interest Certificates a violation of Section 5 of the Securities Act or any state securities law or would require registration or qualification of the Seller's Residual Interest Certificates pursuant thereto. The Seller will not act, nor has it authorized nor will it authorize any person to act, in any manner set forth in the foregoing sentence with respect to the Seller's Residual Interest Certificates, any interest in the Seller's Residual Interest Certificates or any other similar security.
(vi) The Seller has been furnished with all information regarding (A) the Purchaser, (B) the Seller's Residual Interest Certificates and distributions thereon, (C) the nature, performance and servicing of the Other Loans, (D) the Pooling and Servicing Agreement and the Trust Fund, and (E) all related matters, that it has requested.
(vii) The Seller is either (a) a "qualified institutional buyer" within the meaning of Rule 144A under the Securities Act or (b) Except an "accredited investor" as defined in any of paragraphs (1), (2), (3) and (7) of Rule 501(a) under the Securities Act or an entity in which all its equity owners are "accredited investors" as defined in such paragraphs and has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Seller's Residual Interest Certificates. The Seller has sought such accounting, legal and tax advice as it has considered necessary to make an informed investment decision; and the Seller is able to bear the economic risks of such an investment and can afford a complete loss of such investment.
(viii) The Seller is not a Plan and is not directly or indirectly acquiring the Seller's Residual Interest Certificates on behalf of, as named fiduciary of, as trustee of or with assets of a Plan.
(ix) The Seller is a United States Tax Person and is not a Disqualified Organization.
(b) The Seller hereby makes, for the benefit of the Purchaser, with respect to each Mortgage Loan, as of the Closing Date or as of such other date expressly set forth therein, each of the representations and warranties set forth on Exhibit M attached B hereto, Seller has not received from any governmental authority written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any violation of any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable to the Property, or any part thereof, that will not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change to the zoning classification or any proceedings to widen or realign any streets or highways adjacent to the Property or of any condemnation proceedings.
(c) To The Seller intends to transfer the Seller’s actual knowledge's Residual Interest Certificates to Xxxxxxx Lynch, (i) Pierce, Xxxxxx & Xxxxx Incorporated on or about the operating statementsClosing Date; and, income and expense reports and all other contracts or documents required to be delivered to Purchaser pursuant to this Agreement are true, correct and complete copies; and (ii) all contracts or documents required to be delivered to Purchaser pursuant to this Agreement are in full force and effect, without material default by any party and without any right of set-off except as disclosed in writing at the time of such delivery.
(d) There is no master lease of the Property to any affiliate of Seller, or if such master lease exists, Seller shall cause such master lease to be terminated at Closing without Purchaser paying any termination fee. The Rent Roll attached hereto as Exhibit B is true, correct and complete in all material respects as of the date set forth on the Rent Roll. As of the Closingconnection therewith, the Rent Roll delivered at the Closing Seller will be true, correct and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default by any party and without any right of setoff, except as expressly provided by the terms of such Leases or as disclosed on the Rent Roll attached hereto. The copies of the Leases and other agreements comply with the tenants under the Leases (the “Tenants”) delivered to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating to the Real Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real Property.
(e) Exhibit J attached hereto is a true and complete schedule of all of the Contracts (as hereinafter defined in requirements of Section 7), true, complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy 5.02 of the management agreement currently Pooling and Servicing Agreement, as in effect with respect to on the Property. To Seller’s actual knowledgeClosing Date, the Contracts are in full force and effect, without material default by any party and without any claims made for the right of setoff, except as expressly provided by the terms of such Contracts or as disclosed to Purchaser in writing at the time of such deliveryapplicable law. The Contracts constitute Seller hereby directs the entire agreements with such vendors relating Purchaser to cause the Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excluding, however, the Leases and Permitted Encumbrances) affecting the Property which will survive the Closing.
(f) At the Closing, there will be no outstanding contracts made by Seller for the construction or repair of any improvements to the Improvements which have not been fully paid for, and Seller shall cause Seller's Residual Interest Certificates to be discharged all mechanics’ or materialmen’s liens arising from any labor or materials furnished to registered in the Improvements prior to the Closingname of Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated upon initial issuance.
(g) Except as set forth in Exhibit K attached hereto, there are no pending or, to Seller’s actual knowledge (without any duty of inquiry or investigation), threatened legal proceedings or actions of any kind or character affecting the Property or Seller’s interest therein, including, without limitation, condemnation proceedings.
(h) Seller has not received any actual written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or the Property relating in any way to a Release or compliance with Environmental Laws. For purposes of this Agreement, the phrase “Environmental Laws” shall mean any federal, state or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materials, or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 00
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Lb-Ubs Commercial Mortgage Trust 2006-C4)
Representations, Warranties and Covenants of Seller. (a) The Seller hereby represents, represents and warrants to and covenants to Purchaser that with the following matters are true and correct Purchaser, as of the execution of this Agreement and will also be true and correct as of the Closingdate hereof, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx Xxxxxxxxxthat:
(ai) The Seller is a statutory trust duly formed corporation organized and validly existing and in good standing under the laws of the State of Delaware. New York and possesses all requisite authority, power, licenses, permits and franchises to carry on its business as currently conducted by it and to execute, deliver and comply with its obligations under the terms of this Agreement;
(ii) This Agreement has been, been duly and all the documents executed by Seller which are to be delivered to Purchaser at the Closing will be, duly validly authorized, executed and delivered by the Seller and, assuming due authorization, execution and will be delivery hereof by the Purchaser, constitutes a legal, valid and binding obligations obligation of Seller the Seller, enforceable against the Seller in accordance with their respective terms (its terms, except to the extent that as such enforcement may be limited by applicable bankruptcy, insolvency, reorganization, receivership, moratorium and other laws affecting the enforcement of creditors' rights in general and by general equity principles relating to (regardless of whether such enforcement is considered in a proceeding in equity or limiting the right of contracting parties generallyat law), will be sufficient and by public policy considerations underlying the securities laws, to convey title (if they the extent that such public policy considerations limit the enforceability of the provisions of this Agreement which purport to do soprovide indemnification from liabilities under applicable securities laws;
(iii) The execution and delivery of this Agreement by the Seller and the Seller's performance and compliance with the terms of this Agreement will not (A) violate the Seller's certificate of incorporation or bylaws, (B) violate any provisions law or regulation or any administrative decree or order to which it is subject or (C) constitute a material default (or an event which, with notice or lapse of time, or both, would constitute a material default) under, or result in the breach of, any material contract, agreement or other instrument to which the Seller is a party or to by which the Property or Seller is bound, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or have consequences that would materially and adversely affect its performance hereunder;
(iv) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or other governmental agency or body, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or have consequences that would materially and adversely affect its performance hereunder;
(v) The Seller is not a party to or bound by any agreement or instrument or subject to any certificate of incorporation, bylaws or bound. Subject any other corporate restriction or any judgment, order, writ, injunction, decree, law or regulation that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the ability of the Seller to perform its obligations under this Agreement or that requires the consent of any third person to the satisfaction of Section 8(a)(i) below, no consent, waiver or approval by any third party is required in connection with the execution and delivery by Seller of this Agreement or the performance by the Seller of its obligations under this Agreement (except to the extent such consent has been obtained);
(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 or the consummation of the transactions contemplated by this Agreement except as have previously been obtained, and no bulk sale law applies to such transactions;
(vii) No litigation is pending or, to the Seller's knowledge, threatened against the Seller that would, in the Seller's good faith and reasonable judgment, prohibit its entering into this Agreement or materially and adversely affect the performance by the Seller of its obligations to be performed by Seller under this Agreement; and
(viii) Under generally accepted accounting principles ("GAAP") and for federal income tax purposes, the Seller will report the transfer of the Mortgage Loans to the Purchaser as a sale of the Mortgage Loans to the Purchaser in exchange for consideration consisting of the Aggregate Purchase Price. The consideration received by the Seller upon the sale of the Mortgage Loans to the Purchaser will constitute at least reasonably equivalent value and fair consideration for the Mortgage Loans. The Seller will be solvent at all relevant times prior to, and will not be rendered insolvent by, the sale of the Mortgage Loans to the Purchaser. The Seller is not selling the Mortgage Loans to the Purchaser with any intent to hinder, delay or defraud any of the creditors of the Seller.
(b) Except as The Seller hereby makes, on the date hereof and on the Closing Date, the representations and warranties contained in Schedule I and Schedule II hereto with respect to each Mortgage Loan, for the benefit of the Purchaser, which representations and warranties are subject to the exceptions set forth on Exhibit M attached hereto, Seller has not received from any governmental authority written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any violation of any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable to the Property, or any part thereof, that will not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change to the zoning classification or any proceedings to widen or realign any streets or highways adjacent to the Property or of any condemnation proceedingsSchedule III.
(c) If the Seller receives written notice of a Document Defect or a Breach pursuant to Section 2.03(a) of the Pooling and Servicing Agreement relating to a Mortgage Loan, then the Seller shall, not later than 90 days from receipt of such notice (or, in the case of a Document Defect or Breach relating to a Mortgage Loan not being a "qualified mortgage" within the meaning of the REMIC Provisions (a "Qualified Mortgage"), not later than 90 days from any party to the Pooling and Servicing Agreement discovering such Document Defect or Breach, provided the Seller receives such notice in a timely manner), if such Document Defect or Breach shall materially and adversely affect the value of the applicable Mortgage Loan or the interests of the Certificateholders therein, cure such Document Defect or Breach, as the case may be, in all material respects, which shall include payment of actual losses and any Additional Trust Fund Expenses directly resulting therefrom or, if such Document Defect or Breach (other than omissions solely due to a document not having been returned by the related recording office) cannot be cured within such 90-day period, (i) repurchase the affected Mortgage Loan at the applicable Purchase Price not later than the end of such 90-day period, or (ii) substitute a Qualified Substitute Mortgage Loan for such affected Mortgage Loan not later than the end of such 90-day period (and in no event later than the second anniversary of the Closing Date) and pay the Master Servicer for deposit into the Certificate Account, any Substitution Shortfall Amount in connection therewith; provided, however, that, if a Document Defect or Breach is capable of being cured but not within such 90-day period and the Seller has commenced and is diligently proceeding with the cure of such Document Defect or Breach within such 90-day period, then unless such Document Defect or Breach would cause the Mortgage Loan not to be a Qualified Mortgage, such Seller shall have an additional 90 days to complete such cure (or, failing such cure, to repurchase or substitute for the related Mortgage Loan); and provided, further, that with respect to such additional 90-day period the Seller shall have delivered an officer's certificate to the Trustee setting forth what actions the Seller is pursuing in connection with the cure thereof and stating that the Seller anticipates that such Document Defect or Breach will be cured within the additional 90-day period. For a period of two years from the Closing Date, so long as there remains any Mortgage File relating to a Mortgage Loan as to which there is an uncured Document Defect, the Seller shall provide the officer's certificate to the Trustee described above as to the reasons such Document Defect remains uncured and as to the actions being taken to pursue cure. No substitution of a Qualified Substitute Mortgage Loan or Qualified Substitute Mortgage Loans may be made in any calendar month after the Determination Date for such month. Periodic Payments due with respect to any Qualified Substitute Mortgage Loan after the related date of substitution shall be part of the Trust Fund. Periodic Payments due with respect to any Qualified Substitute Mortgage Loan on or prior to the related date of substitution shall not be part of the Trust Fund and shall be remitted to the Seller promptly following receipt.
(d) If (i) any Mortgage Loan is required to be repurchased or substituted for in the manner described above, (ii) such Mortgage Loan is a Crossed Loan, and (iii) the applicable Document Defect or Breach does not constitute a Document Defect or Breach, as the case may be, as to any other Crossed Loan in such Crossed Group (without regard to this paragraph), then the applicable Document Defect or Breach, as the case may be, will be deemed to constitute a Document Defect or Breach, as the case may be, as to each other Crossed Loan in the Crossed Group for purposes of this paragraph, and the Seller will be required to repurchase or substitute for the remaining Crossed Loan(s) in the related Crossed Group as provided in the immediately preceding paragraph unless such other Crossed Loans in such Crossed Group satisfy the Crossed Loan Repurchase Criteria and satisfy all other criteria for substitution or repurchase, as applicable, of Mortgage Loans set forth herein or in the Pooling and Servicing Agreement. In the event that the remaining Crossed Loans satisfy the aforementioned criteria, the Seller may elect either to repurchase or substitute for only the affected Crossed Loan as to which the related Document Defect or Breach exists or to repurchase or substitute for all of the Crossed Loans in the related Crossed Group. The Seller shall be responsible for the cost of any Appraisal required to be obtained by the Master Servicer to determine if the Crossed Loan Repurchase Criteria have been satisfied, so long as the scope and cost of such Appraisal has been approved by the Seller (such approval not to be unreasonably withheld). To the extent that the Seller is required to purchase or substitute for a Crossed Loan hereunder in the manner prescribed above while the Purchaser continues to hold any other Crossed Loans in such Crossed Group, neither the Seller nor the Purchaser shall enforce any remedies against the other's Primary Collateral, but each is permitted to exercise remedies against the Primary Collateral securing its respective Crossed Loans, including, with respect to the Purchaser, the Primary Collateral securing the Crossed Loans still held by the Purchaser, so long as such exercise does not materially impair the ability of the other party to exercise its remedies against its Primary Collateral. If the exercise of remedies by one party would materially impair the ability of the other party to exercise its remedies with respect to the Primary Collateral securing the Crossed Loans held by such party, then the Seller and the Purchaser shall forbear from exercising such remedies until the Mortgage Loan documents evidencing and securing the relevant Crossed Loans can be modified in a manner that complies with this Agreement to remove the threat of material impairment as a result of the exercise of remedies or some other accommodation can be reached. Any reserve or other cash collateral or letters of credit securing the Crossed Loans shall be allocated between such Crossed Loans in accordance with the Mortgage Loan documents or, if not specified in the related Mortgage Loan documents, on a pro rata basis based upon their outstanding Stated Principal Balances. Notwithstanding the foregoing, if a Crossed Loan included in the Trust Fund is modified to terminate the related cross-collateralization and/or cross-default provisions, as a condition to such modification, the Seller shall furnish to the Trustee an Opinion of Counsel that such modification shall not cause an Adverse REMIC Event. Any expenses incurred by the Purchaser in connection with such modification or accommodation (including but not limited to recoverable attorney fees) shall be paid by the Seller’s actual knowledge. Notwithstanding any of the foregoing provisions of this Section 3(d), if there is a Document Defect or Breach (which Document Defect or Breach shall materially and adversely affect the value of the related Mortgage Loan or the interests of the Certificateholders therein) with respect to one or more Mortgaged Properties with respect to a Mortgage Loan, the Seller shall not be obligated to repurchase or substitute the Mortgage Loan if (i) the affected Mortgaged Property(ies) may be released or substituted pursuant to the terms of any partial release or substitution provisions in the related Mortgage Loan documents (and such Mortgaged Property(ies) are, in fact, released or substituted) and, to the extent not covered by the applicable release price (if any) required under the related Mortgage Loan documents, the Seller pays (or causes to be paid) any additional amounts necessary to cover all reasonable out-of-pocket expenses reasonably incurred by the Master Servicer, the Special Servicer, the Trustee or the Trust Fund in connection with such release or substitution, (ii) the remaining Mortgaged Property(ies) satisfy the requirements, if any, set forth in the related Mortgage Loan documents and the Seller provides an opinion of counsel to the effect that such release would not cause either of REMIC I or REMIC II to fail to qualify as a REMIC under the Code or result in the imposition of any tax on "prohibited transactions" or "contributions" after the Startup Day under the REMIC Provisions and (iii) each Rating Agency then rating the Certificates shall have provided written confirmation that such release would not cause the then-current ratings of the Certificates rated by it to be qualified, downgraded or withdrawn.
(e) In connection with any permitted repurchase or substitution of one or more Mortgage Loans contemplated hereby, upon receipt of a certificate from a Servicing Officer certifying as to the receipt of the Purchase Price or Substitution Shortfall Amount(s), as applicable, in the Certificate Account, and the delivery of the Mortgage File(s) and the Servicing File(s) for the related Qualified Substitute Mortgage Loan(s) to the Custodian and the Master Servicer, respectively, if applicable, (i) the operating statementsTrustee shall execute and deliver such endorsements and assignments as are provided to it by the Master Servicer, income in each case without recourse, representation or warranty, as shall be necessary to vest in the Seller, the legal and expense reports and all other contracts beneficial ownership of each repurchased Mortgage Loan or documents required to be delivered to Purchaser pursuant to this Agreement are truesubstituted Mortgage Loan, correct and complete copies; and as applicable, (ii) the Trustee, the Custodian, the Master Servicer and the Special Servicer shall each tender to the Seller, upon delivery to each of them of a receipt executed by the Seller, all contracts or portions of the Mortgage File and other documents required pertaining to be delivered such Mortgage Loan possessed by it, and (iii) the Master Servicer and the Special Servicer shall release to Purchaser pursuant to this Agreement are the Seller any Escrow Payments and Reserve Funds held by it in full force and effect, without material default by any party and without any right of set-off except as disclosed in writing at the time respect of such delivery.
(d) There is no master lease of the Property to any affiliate of Seller, repurchased or if such master lease exists, Seller shall cause such master lease to be terminated at Closing without Purchaser paying any termination fee. The Rent Roll attached hereto as Exhibit B is true, correct and complete in all material respects as of the date set forth on the Rent Roll. As of the Closing, the Rent Roll delivered at the Closing will be true, correct and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default by any party and without any right of setoff, except as expressly provided by the terms of such Leases or as disclosed on the Rent Roll attached hereto. The copies of the Leases and other agreements with the tenants under the Leases (the “Tenants”) delivered to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating to the Real Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real Property.
(e) Exhibit J attached hereto is a true and complete schedule of all of the Contracts (as hereinafter defined in Section 7), true, complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy of the management agreement currently in effect with respect to the Property. To Seller’s actual knowledge, the Contracts are in full force and effect, without material default by any party and without any claims made for the right of setoff, except as expressly provided by the terms of such Contracts or as disclosed to Purchaser in writing at the time of such delivery. The Contracts constitute the entire agreements with such vendors relating to the Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excluding, however, the Leases and Permitted Encumbrances) affecting the Property which will survive the Closingdeleted Mortgage Loans.
(f) At Without limiting the Closingremedies of the Purchaser, there will be no outstanding contracts the Certificateholders or the Trustee on behalf of the Certificateholders pursuant to this Agreement, it is acknowledged that the representations and warranties are being made by Seller for risk allocation purposes. This Section 3 provides the construction sole remedy available to the Certificateholders, or repair the Trustee on behalf of the Certificateholders, respecting any Document Defect in a Mortgage File or any Breach of any improvements to the Improvements which have not been fully paid for, and Seller shall cause to be discharged all mechanics’ representation or materialmen’s liens arising from any labor or materials furnished to the Improvements prior to the Closing.
(g) Except as warranty set forth in Exhibit K attached hereto, there are no pending or, or required to Seller’s actual knowledge (without any duty of inquiry or investigation), threatened legal proceedings or actions of any kind or character affecting the Property or Seller’s interest therein, including, without limitation, condemnation proceedingsbe made pursuant to this Section 3.
(h) Seller has not received any actual written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or the Property relating in any way to a Release or compliance with Environmental Laws. For purposes of this Agreement, the phrase “Environmental Laws” shall mean any federal, state or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materials, or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 00
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (CD 2005-Cd1 Commercial Mortgage Trust)
Representations, Warranties and Covenants of Seller. Seller hereby representsrepresents and warrants to, warrants and covenants to with, Purchaser that the following matters are true and correct as of the execution of this Agreement and will also be true and correct as of the Closing, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx Xxxxxxxxxrelated Closing Date:
(a) Seller It is a statutory trust corporation duly formed and organized, validly existing and in good standing under the laws of the State state of Delaware. This Agreement its incorporation;
(b) It has beenthe full power and authority to hold each Mortgage Loan, to sell each Mortgage Loan and to execute, deliver and perform, and to enter into and consummate all transactions contemplated by this Agreement. Seller has duly authorized the documents executed by Seller which are to be delivered to Purchaser at the Closing will beexecution, delivery and performance of this Agreement, has duly authorized, executed and delivered by Seller this Agreement, and will be this Agreement constitutes the legal, valid and binding obligations of Seller it, enforceable against Seller it in accordance with their respective terms (except terms, subject to bankruptcy laws and other similar laws of general application affecting rights of creditors and subject to the extent that application of the rules of equity, including those respecting the availability of specific performance;
(c) Neither the execution and delivery of this Agreement and the other documents and agreements contemplated hereby, the consummation of the transactions contemplated hereby and thereby, nor the fulfillment of or compliance with the terms and conditions of this Agreement and such enforcement may be limited by applicable bankruptcy, insolvency, moratorium other documents and other principles relating to agreements will result in the breach of any term or limiting provision of the right charter or by-laws of contracting parties generally), will be sufficient to convey title (if they purport to do so) and will not violate any provisions Seller or result in the breach of any material term or provision of, or conflict with or result in the acceleration of any obligation under, any material agreement, indenture or loan or credit agreement or other instrument to which Seller or its property is subject, or result in the violation of any law, rule, regulation, order, judgment or decree to which Seller or its property is subject, which breach, conflict, acceleration or violation would have a party material adverse effect on the ability of Seller to perform its obligations under this Agreement; and
(d) To the Seller’s knowledge, there is no action, suit, proceeding or investigation active or pending against Seller which, either in any one instance or in the aggregate, would draw into question the validity of this Agreement or of any action taken or to which the Property or Seller is subject or bound. Subject to the satisfaction of Section 8(a)(i) below, no consent, waiver or approval by any third party is required be taken in connection with the execution and delivery by obligations of Seller contemplated herein. To the Seller’s knowledge, there is no action, suit, proceeding or investigation threatened against such Seller which, either in any one instance or in the aggregate, would draw into question the validity of this Agreement or the performance by Seller of any action taken or to be taken in connection with the obligations to be performed by of Seller under this Agreementcontemplated herein.
(b) Except as set forth on Exhibit M attached hereto, Seller has not received from any governmental authority written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any violation of any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable to the Property, or any part thereof, that will not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change to the zoning classification or any proceedings to widen or realign any streets or highways adjacent to the Property or of any condemnation proceedings.
(c) To Seller’s actual knowledge, (i) the operating statements, income and expense reports and all other contracts or documents required to be delivered to Purchaser pursuant to this Agreement are true, correct and complete copies; and (ii) all contracts or documents required to be delivered to Purchaser pursuant to this Agreement are in full force and effect, without material default by any party and without any right of set-off except as disclosed in writing at the time of such delivery.
(d) There is no master lease of the Property to any affiliate of Seller, or if such master lease exists, Seller shall cause such master lease to be terminated at Closing without Purchaser paying any termination fee. The Rent Roll attached hereto as Exhibit B is true, correct and complete in all material respects as of the date set forth on the Rent Roll. As of the Closing, the Rent Roll delivered at the Closing will be true, correct and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default by any party and without any right of setoff, except as expressly provided by the terms of such Leases or as disclosed on the Rent Roll attached hereto. The copies of the Leases and other agreements with the tenants under the Leases (the “Tenants”) delivered to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating to the Real Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real Property.
(e) Exhibit J attached hereto is a true and complete schedule of all of the Contracts (as hereinafter defined in Section 7), true, complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy of the management agreement currently in effect with respect to the Property. To Seller’s actual knowledge, the Contracts are in full force and effect, without material default by any party and without any claims made for the right of setoff, except as expressly provided by the terms of such Contracts or as disclosed to Purchaser in writing at the time of such delivery. The Contracts constitute the entire agreements with such vendors relating to the Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excluding, however, the Leases and Permitted Encumbrances) affecting the Property which will survive the Closing.
(f) At the Closing, there will be no outstanding contracts made by Seller for the construction or repair of any improvements to the Improvements which have not been fully paid for, and Seller shall cause to be discharged all mechanics’ or materialmen’s liens arising from any labor or materials furnished to the Improvements prior to the Closing.
(g) Except as set forth in Exhibit K attached hereto, there are no pending or, to Seller’s actual knowledge (without any duty of inquiry or investigation), threatened legal proceedings or actions of any kind or character affecting the Property or Seller’s interest therein, including, without limitation, condemnation proceedings.
(h) Seller has not received any actual written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or the Property relating in any way to a Release or compliance with Environmental Laws. For purposes of this Agreement, the phrase “Environmental Laws” shall mean any federal, state or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materials, or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 00
Appears in 1 contract
Samples: Master Mortgage Loan Sale Agreement (ZAIS Financial Corp.)
Representations, Warranties and Covenants of Seller. Seller hereby representsmakes the representations, warrants warranties and covenants to Purchaser that set forth below. All of the following matters are true representations and correct warranties shall be deemed to have been made again at and as of the execution of this Agreement and will also be true and correct as time of the Closing. The representations, warranties and all references to “Seller’s actual knowledge” shall mean the actual knowledge covenants of Xxxxxxxxxxx X. Xxxxxx or Xxxx XxxxxxxxxSeller are as follows:
(a) Seller is a statutory trust duly formed has the right, power and validly existing under the laws of the State of Delaware. This Agreement has been, and all the documents executed by Seller which are authority to be delivered to Purchaser at the Closing will be, duly authorized, executed and delivered by Seller and will be legal, valid and binding obligations of Seller enforceable against Seller in accordance with their respective terms (except to the extent that such enforcement may be limited by applicable bankruptcy, insolvency, moratorium and other principles relating to or limiting the right of contracting parties generally), will be sufficient to convey title (if they purport to do so) and will not violate any provisions of any material agreement to which Seller is a party or to which the Property or Seller is subject or bound. Subject to the satisfaction of Section 8(a)(i) below, no consent, waiver or approval by any third party is required in connection with the execution and delivery by Seller of enter into this Agreement or and to consummate the performance by Seller of the obligations to be performed by Seller under this Agreementtransactions contemplated herein.
(b) Except as set forth on Exhibit M attached hereto, Seller has not received from any governmental authority written noticeThe execution and delivery of this Agreement by Seller, and the performance and observance by Seller has no actual knowledge of Seller’s duties and obligations under this Agreement and of all other acts by Seller necessary and appropriate for the consummation of the transactions contemplated herein, are consistent with and not in violation of, and will not create any material default under (i) any instrument (including, without limitation, any duty of inquiry contract, agreement, lease, license, covenant, commitment or investigationunderstanding) of any violation of any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable to affecting the Real Property, or (ii) any part thereoflaw, that will not have been corrected prior to Closing norrule, to Seller’s actual knowledgeregulation, has it received any written notice from any governmental authority regarding any change to the zoning classification notice, order decree or any proceedings to widen or realign any streets or highways adjacent to the Property or judgment of any condemnation proceedingsnature to which the Real Property is bound.
(c) To Seller’s actual knowledgeSeller is the sole owner of good, (i) fee simple, unencumbered, marketable title to all of the operating statementsOwned Land, income subject only to the Permitted Exceptions and expense reports and all other contracts those liens or documents required to encumbrances that will be delivered to Purchaser pursuant to this Agreement are true, correct and complete copiessatisfied at Closing; and (ii) all contracts or documents required to be delivered to Purchaser pursuant to this Agreement are Seller holds a valid and enforceable first-priority leasehold interest in full force and effect, without material default by any party and without any right of set-off except the Ground Leased Land as disclosed in writing at lessee under the time of such deliveryGround Leases.
(d) No prior options, rights of first refusal or other rights have been granted by Seller to any third parties to purchase all or any portion of the Real Property or any interest therein that are currently in effect or outstanding.
(e) There is no master lease action, suit or proceeding pending or, to the best knowledge of Seller, threatened, against or by Seller and affecting Seller’s right to transfer any of the Property to any affiliate or the title of Seller, or if such master lease exists, Seller shall cause such master lease to be terminated at Closing without Purchaser paying any termination fee. The Rent Roll attached hereto as Exhibit B is true, correct and complete in all material respects as of the date set forth on the Rent Roll. As of the Closing, the Rent Roll delivered at the Closing will be true, correct and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default by any party and without any right of setoff, except as expressly provided by the terms of such Leases or as disclosed on the Rent Roll attached hereto. The copies of the Leases and other agreements with the tenants under the Leases (the “Tenants”) delivered to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating to the Real Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real Property.
(e) Exhibit J attached hereto is a true and complete schedule of all of the Contracts (as hereinafter defined in Section 7), true, complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy of the management agreement currently in effect with respect to the Property. To Seller’s actual knowledge, the Contracts are in full force and effect, without material default by any party and without any claims made for the right of setoff, except as expressly provided by the terms of such Contracts or as disclosed to Purchaser in writing at the time of such delivery. The Contracts constitute the entire agreements with such vendors relating to the Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excluding, however, the Leases and Permitted Encumbrances) affecting the Property which will survive the Closing.
(f) At the ClosingSeller is not involved in any bankruptcy, there will be no outstanding contracts made by Seller for the construction reorganization or repair of any improvements to the Improvements which have not been fully paid for, and Seller shall cause to be discharged all mechanics’ or materialmen’s liens arising from any labor or materials furnished to the Improvements prior to the Closinginsolvency proceeding as a debtor.
(g) Except as set forth in Exhibit K attached heretoNo litigation, there are administrative, or other proceeding, order or judgment is pending or outstanding, or threatened against or relating to any portion of the Real Property or Personal Property.
(h) There is no pending or, to the best of Seller’s actual knowledge (without knowledge, threatened, action by any duty governmental authority or agency having the power of inquiry condemnation or investigation), threatened legal proceedings eminent domain that would reasonably be expected to result in all or actions any portion of any kind or character affecting the Real Property or Seller’s any interest therein, including, without limitationtherein being taken by eminent domain, condemnation proceedingsor conveyed in lieu thereof.
(hi) Seller has received no notice of any pending proceedings for the imposition of any special assessment, or the formation of a special assessment district, which would affect in any manner the Real Property or any portion thereof.
(j) At Closing, Seller shall have paid all taxes, permits, fees and licenses due which relate to the Real Property and the Personal Property for periods prior to Closing and shall have received no notice of increase, assessment, levy or penalty with respect to any of the foregoing, other than those notices of which Seller has provided a copy to Buyer during the Initial Due Diligence Period.
(k) Seller has received no notice that there are any proposed or pending changes in zoning or roadway, water, or sewer construction affecting the Real Property or any portion thereof.
(l) Seller has not received any actual written notice, and notices that Seller has no actual knowledge (without failed to comply in any duty of inquiry material respect with any law, regulation or investigation) ordinance affecting the Real Property and has not received any notice indicating any material violation of any civil, criminal regulation or administrative suit, claim, hearing, violation, investigation, proceeding ordinance which would adversely affect the use of the Real Property for the purposes for which it is currently being used.
(m) Seller has received no notice that there is any material defect in or demand pending about the Real Property or threatened against Seller or the Property relating in any way to a Release or compliance with Environmental Lawsportion thereof. For purposes of this AgreementSection, “material defect” means any defect the phrase “Environmental Laws” shall mean cost to repair or restore of which exceeds Twenty Five Thousand and No/100 Dollars ($25,000.00).
(n) Seller has no knowledge of any federalfact or condition which would result in the termination or reduction of the current access from the Real Property to existing roads, state or local to sewer or other utility services presently serving the Real Property.
(o) To Seller's knowledge, except as disclosed in any environmental report obtained by Buyer prior to the expiration of the Initial Due Diligence Period, and except for cleaning and landscaping products ordinarily used in the operation and maintenance of similar properties in quantities that do not violate applicable law, statute, ordinance, order, decree, rule (i) no Hazardous Material (as defined below) is or regulation and any common laws regarding health, safety, radioactive materialshas been transported to or from, or generated, placed, held, released, located, stored, or disposed of on, under, or at the environmentReal Property; (ii) neither the Real Property nor any part of any improvements and equipment thereon contains any asbestos or polychlorinated biphenyls; (iii) Seller has not received any notice of any action or proceeding relating to any Hazardous Material or notice of any release or threatened release thereof on, including, without limitation, under or at the Comprehensive Environmental Response, Compensation Real Property or any notice contrary to (i) and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”)ii) above; and (iv) no underground or above-ground storage tanks are or have been located on the Resource Conservation and Recovery Act, 00Real Property.
Appears in 1 contract
Samples: Real Estate Sales Agreement (National Commerce Corp)
Representations, Warranties and Covenants of Seller. (a) The Seller hereby represents, represents and warrants to and covenants to Purchaser that with the following matters are true and correct Purchaser, as of the execution of this Agreement and will also be true and correct as of the Closingdate hereof, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx Xxxxxxxxxthat:
(ai) The Seller is a statutory trust duly formed corporation organized and validly existing and in good standing under the laws of the State of Delaware. Delaware and possesses all requisite authority, power, licenses, permits and franchises to carry on its business as currently conducted by it and to execute, deliver and comply with its obligations under the terms of this Agreement;
(ii) This Agreement has been, been duly and all the documents executed by Seller which are to be delivered to Purchaser at the Closing will be, duly validly authorized, executed and delivered by the Seller and, assuming due authorization, execution and will be delivery hereof by the Purchaser, constitutes a legal, valid and binding obligations obligation of Seller the Seller, enforceable against the Seller in accordance with their respective terms (its terms, except to the extent that as such enforcement may be limited by applicable bankruptcy, insolvency, reorganization, receivership, moratorium and other laws affecting the enforcement of creditors' rights in general and by general equity principles relating to (regardless of whether such enforcement is considered in a proceeding in equity or limiting the right of contracting parties generallyat law), will be sufficient and by public policy considerations underlying the securities laws, to convey title (if they the extent that such public policy considerations limit the enforceability of the provisions of this Agreement which purport to do soprovide indemnification from liabilities under applicable securities laws;
(iii) The execution and delivery of this Agreement by the Seller and the Seller's performance and compliance with the terms of this Agreement will not (A) violate the Seller's certificate of incorporation, or bylaws, (B) violate any provisions law or regulation or any administrative decree or order to which it is subject or (C) constitute a material default (or an event which, with notice or lapse of time, or both, would constitute a material default) under, or result in the breach of, any material contract, agreement or other instrument to which the Seller is a party or to by which the Property or Seller is bound;
(iv) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or other governmental agency or body, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or have consequences that would materially and adversely affect its performance hereunder;
(v) The Seller is not a party to or bound by any agreement or instrument or subject to any certificate of incorporation, bylaws or bound. Subject any other corporate restriction or any judgment, order, writ, injunction, decree, law or regulation that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the ability of the Seller to perform its obligations under this Agreement or that requires the consent of any third person to the satisfaction of Section 8(a)(i) below, no consent, waiver or approval by any third party is required in connection with the execution and delivery by Seller of this Agreement or the performance by the Seller of its obligations under this Agreement (except to the extent such consent has been obtained);
(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 or the consummation of the transactions contemplated by this Agreement except as have previously been obtained, and no bulk sale law applies to such transactions;
(vii) No litigation is pending or, to the Seller's knowledge, threatened against the Seller that would, in the Seller's good faith and reasonable judgment, prohibit its entering into this Agreement or materially and adversely affect the performance by the Seller of its obligations to be performed by Seller under this Agreement; and
(viii) Under generally accepted accounting principles ("GAAP") and for federal income tax purposes, the Seller will report the transfer of the Mortgage Loans to the Purchaser as a sale of the Mortgage Loans to the Purchaser in exchange for consideration consisting of a cash amount equal to the Aggregate Purchase Price. The consideration received by the Seller upon the sale of the Mortgage Loans to the Purchaser will constitute at least reasonably equivalent value and fair consideration for the Mortgage Loans. The Seller will be solvent at all relevant times prior to, and will not be rendered insolvent by, the sale of the Mortgage Loans to the Purchaser. The Seller is not selling the Mortgage Loans to the Purchaser with any intent to hinder, delay or defraud any of the creditors of the Seller.
(b) Except The Seller hereby makes the representations and warranties contained in Schedule I and Schedule II hereto for the benefit of the Purchaser and the Trustee for the benefit of the Certificateholders as of the Closing Date, with respect to (and solely with respect to) each Mortgage Loan, which representations and warranties are subject to the exceptions set forth on Exhibit M attached hereto, Seller has not received from any governmental authority written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any violation of any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable to the Property, or any part thereof, that will not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change to the zoning classification or any proceedings to widen or realign any streets or highways adjacent to the Property or of any condemnation proceedingsSchedule III.
(c) To Seller’s If the Seller receives written notice of a Document Defect or a Breach pursuant to Section 2.03(a) of the Pooling and Servicing Agreement relating to a Mortgage Loan, then the Seller shall not later than 90 days from receipt of such notice (or, in the case of a Document Defect or Breach relating to a Mortgage Loan not being a "qualified mortgage" within the meaning of the REMIC Provisions (a "Qualified Mortgage"), not later than 90 days from any party to the Pooling and Servicing Agreement discovering such Document Defect or Breach provided the Seller receives such notice in a timely manner), if such Document Defect or Breach shall materially and adversely affect the value of the applicable Mortgage Loan or the interests of the Certificateholders therein, cure such Document Defect or Breach, as the case may be, in all material respects, which shall include payment of actual knowledgelosses and any Additional Trust Fund Expenses directly resulting therefrom or, if such Document Defect or Breach (other than omissions solely due to a document not having been returned by the related recording office) cannot be cured within such 90-day period, (i) repurchase the operating statements, income and expense reports and all other contracts affected Mortgage Loan at the applicable Purchase Price not later than the end of such 90-day period or documents required to be delivered to Purchaser pursuant to this Agreement are true, correct and complete copies; and (ii) all contracts or documents required substitute a Qualified Substitute Mortgage Loan for such affected Mortgage Loan not later than the end of such 90-day period (and in no event later than the second anniversary of the Closing Date) and pay the Master Servicer for deposit into the Certificate Account, any Substitution Shortfall Amount in connection therewith; provided, however, that unless the Breach would cause the Mortgage Loan not to be a Qualified Mortgage, and if such Document Defect or Breach is capable of being cured but not within such 90-day period and the Seller has commenced and is diligently proceeding with the cure of such Document Defect or Breach within such 90-day period, such Seller shall have an additional 90 days to complete such cure (or, failing such cure, to repurchase or substitute the related Mortgage Loan); and provided, further, that with respect to such additional 90-day period the Seller shall have delivered an officer's certificate to the Trustee setting forth what actions the Seller is pursuing in connection with the cure thereof and stating that the Seller anticipates that such Document Defect or Breach will be cured within the additional 90-day period; and provided; further, that no Document Defect (other than with respect to a Mortgage Note, Mortgage, title insurance policy, Ground Lease or any letter of credit) shall be considered to materially and adversely affect the value of the related Mortgage Loan or the interests of the Certificateholders therein unless the document with respect to which the Document Defect exists is required in connection with an imminent enforcement of the mortgagee's rights or remedies under the related Mortgage Loan, defending any claim asserted by any borrower or third party with respect to the Mortgage Loan, establishing the validity or priority of any lien or any collateral securing the Mortgage Loan or for any immediate significant servicing obligations. For a period of two years from the Closing Date, so long as there remains any Mortgage File relating to a Mortgage Loan as to which there is any uncured Document Defect or Breach, the Seller shall provide the officer's certificate to the Trustee described above as to the reasons such Document Defect or Breach remains uncured and as to the actions being taken to pursue cure. Notwithstanding the foregoing, the delivery of a commitment to issue a policy of lender's title insurance as described in paragraph 12 of Schedule I hereof in lieu of the delivery of the actual policy of lender's title insurance shall not be considered a Document Defect or Breach with respect to any Mortgage File if such actual policy of insurance is delivered to Purchaser pursuant to this Agreement are in full force and effect, without material default by any party and without any right of set-off except as disclosed in writing at the time of such deliveryTrustee or a Custodian on its behalf not later than the 90th day following the Closing Date.
(d) There If (i) any Mortgage Loan is no master lease required to be repurchased or substituted for in the manner described above, (ii) such Mortgage Loan is a Crossed Loan, and (iii) the applicable Document Defect or Breach does not constitute a Document Defect or Breach, as the case may be, as to any other Crossed Loan in such Crossed Group (without regard to this paragraph), then the applicable Document Defect or Breach, as the case may be, will be deemed to constitute a Document Defect or Breach, as the case may be, as to each other Crossed Loan in the Crossed Group for purposes of this paragraph, and the Seller will be required to repurchase or substitute for all of the Property remaining Crossed Loan(s) in the related Crossed Group as provided in the immediately preceding paragraph unless such other Crossed Loans in such Crossed Group satisfy the Crossed Loan Repurchase Criteria and satisfy all other criteria for substitution or repurchase, as applicable, of Mortgage Loans set forth herein. In the event that the remaining Crossed Loans satisfy the aforementioned criteria, the Seller may elect either to repurchase or substitute for only the affected Crossed Loan as to which the related Breach or Document Defect exists or to repurchase or substitute for all of the Crossed Loans in the related Crossed Group. The Seller shall be responsible for the cost of any affiliate Appraisal required to be obtained by the Master Servicer to determine if the Crossed Loan Repurchase Criteria have been satisfied, so long as the scope and cost of Sellersuch Appraisal has been approved by the Seller (such approval not to be unreasonably withheld). To the extent that the Seller is required to purchase or substitute for a Crossed Loan hereunder in the manner prescribed above while the Purchaser continues to hold any other Crossed Loans in such Crossed Group, neither the Seller nor the Purchaser shall enforce any remedies against the other's Primary Collateral, but each is permitted to exercise remedies against the Primary Collateral securing its respective Crossed Loans, including, with respect to the Purchaser, the Primary Collateral securing the Crossed Loans still held by the Purchaser, so long as such exercise does not materially impair the ability of the other party to exercise its remedies against its Primary Collateral. If the exercise of remedies by one party would materially impair the ability of the other party to exercise its remedies with respect to the Primary Collateral securing the Crossed Loans held by such party, then the Seller and the Purchaser shall forbear from exercising such remedies until the Mortgage Loan documents evidencing and securing the relevant Crossed Loans can be modified in a manner that complies with this Agreement to remove the threat of material impairment as a result of the exercise of remedies or some other accommodation can be reached. Any reserve or other cash collateral or letters of credit securing the Crossed Loans shall be allocated between such Crossed Loans in accordance with the Mortgage Loan documents, or otherwise on a pro rata basis based upon their outstanding Stated Principal Balances. Notwithstanding the foregoing, if a Crossed Loan included in the Trust Fund is modified to terminate the related cross-collateralization and/or cross-default provisions, as a condition to such master lease existsmodification, the Seller shall furnish to the Trustee an Opinion of Counsel that such modification shall not cause such master lease to be terminated at Closing without Purchaser paying any termination feean Adverse REMIC Event. The Rent Roll attached hereto as Exhibit B is true, correct and complete in all material respects as of the date set forth on the Rent Roll. As of the Closing, the Rent Roll delivered at the Closing will be true, correct and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default by any party and without any right of setoff, except as expressly provided Any expenses incurred by the terms of such Leases or as disclosed on the Rent Roll attached hereto. The copies of the Leases and other agreements with the tenants under the Leases (the “Tenants”) delivered to Purchaser pursuant to this Agreement constitute the entire agreements in connection with such Tenants relating modification or accommodation (including but not limited to recoverable attorney fees) shall be paid by the Real Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real PropertySeller.
(e) Exhibit J attached hereto is In connection with any permitted repurchase or substitution of one or more Mortgage Loans contemplated hereby, upon receipt of a true and complete schedule of all certificate from a Servicing Officer certifying as to the receipt of the Contracts (as hereinafter defined in Section 7Purchase Price or Substitution Shortfall Amount(s), trueas applicable, complete in the Certificate Account, and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy the delivery of the management agreement currently in effect with respect Mortgage File(s) and the Servicing File(s) for the related Qualified Substitute Mortgage Loan(s) to the Property. To Custodian and the Master Servicer, respectively, if applicable (i) the Trustee shall execute and deliver such endorsements and assignments as are provided to it by the Master Servicer, in each case without recourse, representation or warranty, as shall be necessary to vest in the Seller’s actual knowledge, the Contracts are in full force legal and effectbeneficial ownership of each repurchased Mortgage Loan or substituted Mortgage Loan, without material default by any party as applicable, (ii) the Trustee, the Custodian, the Master Servicer and without any claims made for the right Special Servicer shall each tender to the Seller, upon delivery to each of setoff, except as expressly provided them of a receipt executed by the terms Seller, all portions of the Mortgage File and other documents pertaining to such Mortgage Loan possessed by it, and (iii) the Master Servicer and the Special Servicer shall release to the Seller any Escrow Payments and Reserve Funds held by it in respect of such Contracts repurchased or as disclosed to Purchaser in writing at the time of such delivery. The Contracts constitute the entire agreements with such vendors relating to the Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excluding, however, the Leases and Permitted Encumbrances) affecting the Property which will survive the Closingdeleted Mortgage Loans.
(f) At Without limiting the Closingremedies of the Purchaser, there will be no outstanding contracts the Certificateholders or the Trustee on behalf of the Certificateholders pursuant to this Agreement, it is acknowledged that the representations and warranties are being made by Seller for risk allocation purposes. This Section 3 provides the construction sole remedy available to the Certificateholders, or repair the Trustee on behalf of the Certificateholders, respecting any Document Defect in a Mortgage File or any Breach of any improvements to the Improvements which have not been fully paid for, and Seller shall cause to be discharged all mechanics’ representation or materialmen’s liens arising from any labor or materials furnished to the Improvements prior to the Closing.
(g) Except as warranty set forth in Exhibit K attached hereto, there are no pending or, or required to Seller’s actual knowledge (without any duty of inquiry or investigation), threatened legal proceedings or actions of any kind or character affecting the Property or Seller’s interest therein, including, without limitation, condemnation proceedingsbe made pursuant to this Section 3.
(h) Seller has not received any actual written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or the Property relating in any way to a Release or compliance with Environmental Laws. For purposes of this Agreement, the phrase “Environmental Laws” shall mean any federal, state or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materials, or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 00
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Wachovia Commercial Mort Pass THR Certs Ser 2004-C10)
Representations, Warranties and Covenants of Seller. (a) The Seller hereby represents, represents and warrants to and covenants to Purchaser that with the following matters are true and correct Purchaser, as of the execution of this Agreement and will also be true and correct as of the Closingdate hereof, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx Xxxxxxxxxthat:
(ai) The Seller is a statutory trust duly formed national banking association organized and validly existing and in good standing under the laws of the State United States of Delaware. America and possesses all requisite authority, power, licenses, permits and franchises to carry on its business as currently conducted by it and to execute, deliver and comply with its obligations under the terms of this Agreement;
(ii) This Agreement has been, been duly and all the documents executed by Seller which are to be delivered to Purchaser at the Closing will be, duly validly authorized, executed and delivered by the Seller and, assuming due authorization, execution and will be delivery hereof by the Purchaser, constitutes a legal, valid and binding obligations obligation of Seller the Seller, enforceable against the Seller in accordance with their respective terms (its terms, except to the extent that as such enforcement may be limited by applicable bankruptcy, insolvency, reorganization, receivership, moratorium and other laws affecting the enforcement of creditors’ rights in general, as they may be applied in the context of the insolvency of a national banking association, and by general equity principles relating to (regardless of whether such enforcement is considered in a proceeding in equity or limiting the right of contracting parties generallyat law), will be sufficient and by public policy considerations underlying the securities laws, to convey title (if they the extent that such public policy considerations limit the enforceability of the provisions of this Agreement which purport to do soprovide indemnification from liabilities under applicable securities laws;
(iii) The execution and delivery of this Agreement by the Seller and the Seller’s performance and compliance with the terms of this Agreement will not (A) violate the Seller’s articles of association or bylaws, (B) violate any provisions law or regulation or any administrative decree or order to which it is subject or (C) constitute a material default (or an event which, with notice or lapse of time, or both, would constitute a material default) under, or result in the breach of, any material contract, agreement or other instrument to which the Seller is a party or to by which the Property or Seller is bound;
(iv) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or other governmental agency or body, which default might have consequences that would, in the Seller’s reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or have consequences that would materially and adversely affect its performance hereunder;
(v) The Seller is not a party to or bound by any agreement or instrument or subject to any articles of association, bylaws or bound. Subject any other corporate restriction or any judgment, order, writ, injunction, decree, law or regulation that would, in the Seller’s reasonable and good faith judgment, materially and adversely affect the ability of the Seller to perform its obligations under this Agreement or that requires the consent of any third person to the satisfaction of Section 8(a)(i) below, no consent, waiver or approval by any third party is required in connection with the execution and delivery by Seller of this Agreement or the performance by the Seller of its obligations under this Agreement (except to the extent such consent has been obtained);
(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 or the consummation of the transactions contemplated by this Agreement except as have previously been obtained, and no bulk sale law applies to such transactions;
(vii) No litigation is pending or, to the Seller’s knowledge, threatened against the Seller that would, in the Seller’s good faith and reasonable judgment, prohibit its entering into this Agreement or materially and adversely affect the performance by the Seller of its obligations to be performed by Seller under this Agreement; and
(viii) Under generally accepted accounting principles (“GAAP”) and for federal income tax purposes, the Seller will report the transfer of the Mortgage Loans to the Purchaser as a sale of the Mortgage Loans to the Purchaser in exchange for consideration consisting of a cash amount equal to the Aggregate Purchase Price. The consideration received by the Seller upon the sale of the Mortgage Loans to the Purchaser will constitute at least reasonably equivalent value and fair consideration for the Mortgage Loans. The Seller will be solvent at all relevant times prior to, and will not be rendered insolvent by, the sale of the Mortgage Loans to the Purchaser. The Seller is not selling the Mortgage Loans to the Purchaser with any intent to hinder, delay or defraud any of the creditors of the Seller.
(b) Except The Seller hereby makes the representations and warranties contained in Schedule I and Schedule II hereto for the benefit of the Purchaser and the Trustee for the benefit of the Certificateholders as of the Closing Date, with respect to (and solely with respect to) each Mortgage Loan, which representations and warranties are subject to the exceptions set forth on Exhibit M attached hereto, Seller has not received from any governmental authority written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any violation of any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable to the Property, or any part thereof, that will not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change to the zoning classification or any proceedings to widen or realign any streets or highways adjacent to the Property or of any condemnation proceedingsSchedule III.
(c) To Seller’s If the Seller receives written notice of a Document Defect or a Breach pursuant to Section 2.03(a) of the Pooling and Servicing Agreement relating to a Mortgage Loan, then the Seller shall not later than 90 days from receipt of such notice (or, in the case of a Document Defect or Breach relating to a Mortgage Loan not being a “qualified mortgage” within the meaning of the REMIC Provisions (a “Qualified Mortgage”), not later than 90 days from the date that any party to the Pooling and Servicing Agreement discovers such Document Defect or Breach provided the Seller receives such notice in a timely manner), if such Document Defect or Breach shall materially and adversely affect the value of the applicable Mortgage Loan or the interests of the Certificateholders therein, cure such Document Defect or Breach, as the case may be, in all material respects, which shall include payment of actual knowledgelosses and any Additional Trust Fund Expenses directly resulting therefrom or, if such Document Defect or Breach (other than omissions solely due to a document not having been returned by the related recording office) cannot be cured within such 90-day period, (i) repurchase the operating statements, income and expense reports and all other contracts affected Mortgage Loan at the applicable Purchase Price not later than the end of such 90-day period or documents required to be delivered to Purchaser pursuant to this Agreement are true, correct and complete copies; and (ii) all contracts or documents required substitute a Qualified Substitute Mortgage Loan for such affected Mortgage Loan not later than the end of such 90-day period (and in no event later than the second anniversary of the Closing Date) and pay the Master Servicer for deposit into the Certificate Account, any Substitution Shortfall Amount in connection therewith; provided, however, that unless the Breach would cause the Mortgage Loan not to be a Qualified Mortgage, and if such Document Defect or Breach is capable of being cured but not within such 90-day period and the Seller has commenced and is diligently proceeding with the cure of such Document Defect or Breach within such 90-day period, such Seller shall have an additional 90 days to complete such cure (or, failing such cure, to repurchase or substitute the related Mortgage Loan); and provided, further, that with respect to such additional 90-day period the Seller shall have delivered an officer’s certificate to the Trustee setting forth what actions the Seller is pursuing in connection with the cure thereof and stating that the Seller anticipates that such Document Defect or Breach will be cured within the additional 90-day period; and provided; further, that no Document Defect (other than with respect to a Mortgage Note, Mortgage, title insurance policy, Ground Lease or any letter of credit) shall be considered to materially and adversely affect the value of the related Mortgage Loan or the interests of the Certificateholders therein unless the document with respect to which the Document Defect exists is required in connection with an imminent enforcement of the mortgagee’s rights or remedies under the related Mortgage Loan, defending any claim asserted by any borrower or third party with respect to the Mortgage Loan, establishing the validity or priority of any lien or any collateral securing the Mortgage Loan or for any immediate significant servicing obligations. For a period of two years from the Closing Date, so long as there remains any Mortgage File relating to a Mortgage Loan as to which there is any uncured Document Defect or Breach, the Seller shall provide the officer’s certificate to the Trustee described above as to the reasons such Document Defect or Breach remains uncured and as to the actions being taken to pursue cure. Notwithstanding the foregoing, the delivery of a commitment to issue a policy of lender’s title insurance as described in Representation 12 of Schedule I hereof in lieu of the delivery of the actual policy of lender’s title insurance shall not be considered a Document Defect or Breach with respect to any Mortgage File if such actual policy of insurance is delivered to Purchaser pursuant to this Agreement are in full force and effect, without material default by any party and without any right of set-off except as disclosed in writing at the time of such deliveryTrustee or a Custodian on its behalf not later than the 90th day following the Closing Date.
(d) There If (i) any Mortgage Loan is no master lease required to be repurchased or substituted for in the manner described above, (ii) such Mortgage Loan is cross-collateralized and cross-defaulted with one or more other Mortgage Loans (each a “Crossed Loan”), and (iii) the applicable Document Defect or Breach does not constitute a Document Defect or Breach, as the case may be, as to any other Crossed Loan in such Crossed Group (without regard to this paragraph), then the applicable Document Defect or Breach, as the case may be, will be deemed to constitute a Document Defect or Breach, as the case may be, as to any other Crossed Loan in the Crossed Group for purposes of this paragraph, and the Seller will be required to repurchase or substitute for all of the Property remaining Crossed Loan(s) in the related Crossed Group as provided in the immediately preceding paragraph unless such other Crossed Loans in such Crossed Group satisfy the Crossed Loan Repurchase Criteria and satisfy all other criteria for substitution or repurchase, as applicable, of Mortgage Loans set forth herein. In the event that the remaining Crossed Loans satisfy the aforementioned criteria, the Seller may elect either to repurchase or substitute for only the affected Crossed Loan as to which the related Breach or Document Defect exists or to repurchase or substitute for all of the Crossed Loans in the related Crossed Group. The Seller shall be responsible for the cost of any affiliate Appraisal required to be obtained by the Master Servicer to determine if the Crossed Loan Repurchase Criteria have been satisfied, so long as the scope and cost of Sellersuch Appraisal has been approved by the Seller (such approval not to be unreasonably withheld). To the extent that the Seller is required to repurchase or substitute for a Crossed Loan hereunder in the manner prescribed above while the Trustee continues to hold any other Crossed Loans in such Crossed Group, neither the Seller nor the Purchaser shall enforce any remedies against the other’s Primary Collateral, but each is permitted to exercise remedies against the Primary Collateral securing its respective Crossed Loans, including, with respect to the Trustee, the Primary Collateral securing the Crossed Loans still held by the Trustee. If the exercise of remedies by one party would materially impair the ability of the other party to exercise its remedies with respect to the Primary Collateral securing the Crossed Loans held by such party, then the Seller and the Purchaser shall forbear from exercising such remedies until the Mortgage Loan documents evidencing and securing the relevant Crossed Loans can be modified in a manner that complies with this Agreement to remove the threat of material impairment as a result of the exercise of remedies or some other accommodation can be reached. Any reserve or other cash collateral or letters of credit securing the Crossed Loans shall be allocated between such Crossed Loans in accordance with the Mortgage Loan documents, or otherwise on a pro rata basis based upon their outstanding Stated Principal Balances. Notwithstanding the foregoing, if a Crossed Loan included in the Trust Fund is modified to terminate the related cross-collateralization and/or cross-default provisions, as a condition to such master lease existsmodification, the Seller shall furnish to the Trustee an Opinion of Counsel that such modification shall not cause such master lease to be terminated at Closing without Purchaser paying any termination feean Adverse REMIC Event. The Rent Roll attached hereto as Exhibit B is true, correct and complete in all material respects as of the date set forth on the Rent Roll. As of the Closing, the Rent Roll delivered at the Closing will be true, correct and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default by any party and without any right of setoff, except as expressly provided Any expenses incurred by the terms of such Leases Purchaser in connection with any modification or as disclosed on accommodation (including but not limited to recoverable attorney fees) shall be paid by the Rent Roll attached hereto. The copies of the Leases and other agreements with the tenants under the Leases (the “Tenants”) delivered to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating to the Real Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real PropertySeller.
(e) Exhibit J attached hereto is In connection with any permitted repurchase or substitution of one or more Mortgage Loans contemplated hereby, upon receipt of a true and complete schedule of all certificate from a Servicing Officer certifying as to the receipt of the Contracts (as hereinafter defined in Section 7Purchase Price or Substitution Shortfall Amount(s), trueas applicable, complete in the Certificate Account, and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy the delivery of the management agreement currently in effect with respect Mortgage File(s) and the Servicing File(s) for the related Qualified Substitute Mortgage Loan(s) to the Property. To Custodian and the Master Servicer, respectively, if applicable (i) the Trustee shall execute and deliver such endorsements and assignments as are provided to it by the Master Servicer, in each case without recourse, representation or warranty, as shall be necessary to vest in the Seller’s actual knowledge, the Contracts are in full force legal and effectbeneficial ownership of each repurchased Mortgage Loan or substituted Mortgage Loan, without material default by any party as applicable, (ii) the Trustee, the Custodian, the Master Servicer and without any claims made for the right Special Servicer shall each tender to the Seller, upon delivery to each of setoff, except as expressly provided them of a receipt executed by the terms Seller, all portions of the Mortgage File and other documents pertaining to such Mortgage Loan possessed by it, and (iii) the Master Servicer and the Special Servicer shall release to the Seller any Escrow Payments and Reserve Funds held by it in respect of such Contracts repurchased or as disclosed to Purchaser in writing at the time of such delivery. The Contracts constitute the entire agreements with such vendors relating to the Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excluding, however, the Leases and Permitted Encumbrances) affecting the Property which will survive the Closingdeleted Mortgage Loans.
(f) At Without limiting the Closingremedies of the Purchaser, there will be no outstanding contracts the Certificateholders or the Trustee on behalf of the Certificateholders pursuant to this Agreement, it is acknowledged that the representations and warranties are being made by Seller for risk allocation purposes. This Section 3 provides the construction sole remedy available to the Certificateholders, or repair the Trustee on behalf of the Certificateholders, respecting any Document Defect in a Mortgage File or any Breach of any improvements to the Improvements which have not been fully paid for, and Seller shall cause to be discharged all mechanics’ representation or materialmen’s liens arising from any labor or materials furnished to the Improvements prior to the Closing.
(g) Except as warranty set forth in Exhibit K attached hereto, there are no pending or, or required to Seller’s actual knowledge (without any duty of inquiry or investigation), threatened legal proceedings or actions of any kind or character affecting the Property or Seller’s interest therein, including, without limitation, condemnation proceedingsbe made pursuant to this Section 3.
(h) Seller has not received any actual written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or the Property relating in any way to a Release or compliance with Environmental Laws. For purposes of this Agreement, the phrase “Environmental Laws” shall mean any federal, state or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materials, or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 00
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Wachovia Bank Commercial Mortgage Trust Series 2005-C21)
Representations, Warranties and Covenants of Seller. (a) The Seller hereby represents, represents and warrants to and covenants to Purchaser that with the following matters are true and correct Purchaser, as of the execution of this Agreement and will also be true and correct as of the Closingdate hereof, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx Xxxxxxxxxthat:
(ai) The Seller is a statutory trust duly formed corporation organized and validly existing and in good standing under the laws of Delaware and possesses all requisite authority, power, licenses, permits and franchises to carry on its business as currently conducted by it and to execute, deliver and comply with its obligations under the State terms of Delaware. this Agreement;
(ii) This Agreement has been, been duly and all the documents executed by Seller which are to be delivered to Purchaser at the Closing will be, duly validly authorized, executed and delivered by the Seller and, assuming due authorization, execution and will be delivery hereof by the Purchaser, constitutes a legal, valid and binding obligations obligation of Seller the Seller, enforceable against the Seller in accordance with their respective terms (its terms, except to the extent that as such enforcement may be limited by applicable bankruptcy, insolvency, reorganization, receivership, moratorium and other laws affecting the enforcement of creditors’ rights in general, and by general equity principles relating to (regardless of whether such enforcement is considered in a proceeding in equity or limiting the right of contracting parties generallyat law), will be sufficient and by public policy considerations underlying the securities laws, to convey title (if they the extent that such public policy considerations limit the enforceability of the provisions of this Agreement which purport to do soprovide indemnification from liabilities under applicable securities laws;
(iii) The execution and delivery of this Agreement by the Seller and the Seller’s performance and compliance with the terms of this Agreement will not (A) violate the Seller’s certificate of incorporation or bylaws, (B) violate any provisions law or regulation or any administrative decree or order to which it is subject or (C) constitute a material default (or an event which, with notice or lapse of time, or both, would constitute a material default) under, or result in the breach of, any material contract, agreement or other instrument to which the Seller is a party or to by which the Property or Seller is bound;
(iv) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or other governmental agency or body, which default might have consequences that would, in the Seller’s reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or have consequences that would materially and adversely affect its performance hereunder;
(v) The Seller is not a party to or bound by any agreement or instrument or subject to any certificate of incorporation, bylaws or bound. Subject any other corporate restriction or any judgment, order, writ, injunction, decree, law or regulation that would, in the Seller’s reasonable and good faith judgment, materially and adversely affect the ability of the Seller to perform its obligations under this Agreement or that requires the consent of any third person to the satisfaction of Section 8(a)(i) below, no consent, waiver or approval by any third party is required in connection with the execution and delivery by Seller of this Agreement or the performance by the Seller of its obligations under this Agreement (except to the extent such consent has been obtained);
(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 or the consummation of the transactions contemplated by this Agreement except as have previously been obtained, and no bulk sale law applies to such transactions;
(vii) No litigation is pending or, to the Seller’s knowledge, threatened against the Seller that would, in the Seller’s good faith and reasonable judgment, prohibit its entering into this Agreement or materially and adversely affect the performance by the Seller of its obligations to be performed by Seller under this Agreement; and
(viii) Under generally accepted accounting principles (“GAAP”) and for federal income tax purposes, the Seller will report the transfer of the Mortgage Loans to the Purchaser as a sale of the Mortgage Loans to the Purchaser in exchange for consideration consisting of a cash amount equal to the Aggregate Purchase Price. The consideration received by the Seller upon the sale of the Mortgage Loans to the Purchaser will constitute at least reasonably equivalent value and fair consideration for the Mortgage Loans. The Seller will be solvent at all relevant times prior to, and will not be rendered insolvent by, the sale of the Mortgage Loans to the Purchaser. The Seller is not selling the Mortgage Loans to the Purchaser with any intent to hinder, delay or defraud any of the creditors of the Seller.
(b) Except The Seller hereby makes the representations and warranties contained in Schedule I and Schedule II hereto for the benefit of the Purchaser and the Trustee for the benefit of the Certificateholders as of the Closing Date, with respect to (and solely with respect to) each Mortgage Loan, which representations and warranties are subject to the exceptions set forth on Exhibit M attached hereto, Seller has not received from any governmental authority written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any violation of any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable to the Property, or any part thereof, that will not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change to the zoning classification or any proceedings to widen or realign any streets or highways adjacent to the Property or of any condemnation proceedingsSchedule III.
(c) To Seller’s If the Seller receives written notice of a Document Defect or a Breach pursuant to Section 2.03(a) of the Pooling and Servicing Agreement relating to a Mortgage Loan, then the Seller shall not later than 90 days from receipt of such notice (or, in the case of a Document Defect or Breach relating to a Mortgage Loan not being a “qualified mortgage” within the meaning of the REMIC Provisions (a “Qualified Mortgage”), not later than 90 days from the date that any party to the Pooling and Servicing Agreement discovers such Document Defect or Breach provided the Seller receives such notice in a timely manner), if such Document Defect or Breach shall materially and adversely affect the value of the applicable Mortgage Loan or the interests of the Certificateholders therein, cure such Document Defect or Breach, as the case may be, in all material respects, which shall include payment of actual knowledgelosses and any Additional Trust Fund Expenses directly resulting therefrom or, if such Document Defect or Breach (other than omissions solely due to a document not having been returned by the related recording office) cannot be cured within such 90-day period, (i) repurchase the operating statements, income and expense reports and all other contracts affected Mortgage Loan at the applicable Purchase Price not later than the end of such 90-day period or documents required to be delivered to Purchaser pursuant to this Agreement are true, correct and complete copies; and (ii) all contracts or documents required substitute a Qualified Substitute Mortgage Loan for such affected Mortgage Loan not later than the end of such 90-day period (and in no event later than the second anniversary of the Closing Date) and pay the Master Servicer for deposit into the Certificate Account, any Substitution Shortfall Amount in connection therewith; provided, however, that unless the Breach would cause the Mortgage Loan not to be a Qualified Mortgage, and if such Document Defect or Breach is capable of being cured but not within such 90-day period and the Seller has commenced and is diligently proceeding with the cure of such Document Defect or Breach within such 90-day period, such Seller shall have an additional 90 days to complete such cure (or, failing such cure, to repurchase or substitute the related Mortgage Loan); and provided, further, that with respect to such additional 90-day period the Seller shall have delivered an officer’s certificate to the Trustee setting forth what actions the Seller is pursuing in connection with the cure thereof and stating that the Seller anticipates that such Document Defect or Breach will be cured within the additional 90-day period; and provided; further, that no Document Defect (other than with respect to a Mortgage Note, Mortgage, title insurance policy, Ground Lease or any letter of credit) shall be considered to materially and adversely affect the value of the related Mortgage Loan or the interests of the Certificateholders therein unless the document with respect to which the Document Defect exists is required in connection with an imminent enforcement of the mortgagee’s rights or remedies under the related Mortgage Loan, defending any claim asserted by any borrower or third party with respect to the Mortgage Loan, establishing the validity or priority of any lien or any collateral securing the Mortgage Loan or for any immediate significant servicing obligations. For a period of two years from the Closing Date, so long as there remains any Mortgage File relating to a Mortgage Loan as to which there is any uncured Document Defect or Breach, the Seller shall provide the officer’s certificate to the Trustee described above as to the reasons such Document Defect or Breach remains uncured and as to the actions being taken to pursue cure. Notwithstanding the foregoing, the delivery of a commitment to issue a policy of lender’s title insurance as described in Representation 12 of Schedule I hereof in lieu of the delivery of the actual policy of lender’s title insurance shall not be considered a Document Defect or Breach with respect to any Mortgage File if such actual policy of insurance is delivered to Purchaser pursuant to this Agreement are in full force and effect, without material default by any party and without any right of set-off except as disclosed in writing at the time of such deliveryTrustee or a Custodian on its behalf not later than the 90th day following the Closing Date.
(d) There If (i) any Mortgage Loan is no master lease required to be repurchased or substituted for in the manner described above, (ii) such Mortgage Loan is cross-collateralized and cross-defaulted with one or more other Mortgage Loans (each a “Crossed Loan”), and (iii) the applicable Document Defect or Breach does not constitute a Document Defect or Breach, as the case may be, as to any other Crossed Loan in such Crossed Group (without regard to this paragraph), then the applicable Document Defect or Breach, as the case may be, will be deemed to constitute a Document Defect or Breach, as the case may be, as to any other Crossed Loan in the Crossed Group for purposes of this paragraph, and the Seller will be required to repurchase or substitute for all of the Property remaining Crossed Loan(s) in the related Crossed Group as provided in the immediately preceding paragraph unless such other Crossed Loans in such Crossed Group satisfy the Crossed Loan Repurchase Criteria and satisfy all other criteria for substitution or repurchase, as applicable, of Mortgage Loans set forth herein. In the event that the remaining Crossed Loans satisfy the aforementioned criteria, the Seller may elect either to repurchase or substitute for only the affected Crossed Loan as to which the related Breach or Document Defect exists or to repurchase or substitute for all of the Crossed Loans in the related Crossed Group. The Seller shall be responsible for the cost of any affiliate Appraisal required to be obtained by the Master Servicer to determine if the Crossed Loan Repurchase Criteria have been satisfied, so long as the scope and cost of Sellersuch Appraisal has been approved by the Seller (such approval not to be unreasonably withheld). To the extent that the Seller is required to repurchase or substitute for a Crossed Loan hereunder in the manner prescribed above while the Trustee continues to hold any other Crossed Loans in such Crossed Group, neither the Seller nor the Purchaser shall enforce any remedies against the other’s Primary Collateral, but each is permitted to exercise remedies against the Primary Collateral securing its respective Crossed Loans, including, with respect to the Trustee, the Primary Collateral securing the Crossed Loans still held by the Trustee. If the exercise of remedies by one party would materially impair the ability of the other party to exercise its remedies with respect to the Primary Collateral securing the Crossed Loans held by such party, then the Seller and the Purchaser shall forbear from exercising such remedies until the Mortgage Loan documents evidencing and securing the relevant Crossed Loans can be modified in a manner that complies with this Agreement to remove the threat of material impairment as a result of the exercise of remedies or some other accommodation can be reached. Any reserve or other cash collateral or letters of credit securing the Crossed Loans shall be allocated between such Crossed Loans in accordance with the Mortgage Loan documents, or otherwise on a pro rata basis based upon their outstanding Stated Principal Balances. Notwithstanding the foregoing, if a Crossed Loan included in the Trust Fund is modified to terminate the related cross-collateralization and/or cross-default provisions, as a condition to such master lease existsmodification, the Seller shall furnish to the Trustee an Opinion of Counsel that such modification shall not cause such master lease to be terminated at Closing without Purchaser paying any termination feean Adverse REMIC Event. The Rent Roll attached hereto as Exhibit B is true, correct and complete in all material respects as of the date set forth on the Rent Roll. As of the Closing, the Rent Roll delivered at the Closing will be true, correct and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default by any party and without any right of setoff, except as expressly provided Any expenses incurred by the terms of such Leases Purchaser in connection with any modification or as disclosed on accommodation (including but not limited to recoverable attorney fees) shall be paid by the Rent Roll attached hereto. The copies of the Leases and other agreements with the tenants under the Leases (the “Tenants”) delivered to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating to the Real Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real PropertySeller.
(e) Exhibit J attached hereto is In connection with any permitted repurchase or substitution of one or more Mortgage Loans contemplated hereby, upon receipt of a true and complete schedule of all certificate from a Servicing Officer certifying as to the receipt of the Contracts (as hereinafter defined in Section 7Purchase Price or Substitution Shortfall Amount(s), trueas applicable, complete in the Certificate Account, and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy the delivery of the management agreement currently in effect with respect Mortgage File(s) and the Servicing File(s) for the related Qualified Substitute Mortgage Loan(s) to the Property. To Custodian and the Master Servicer, respectively, if applicable (i) the Trustee shall execute and deliver such endorsements and assignments as are provided to it by the Master Servicer, in each case without recourse, representation or warranty, as shall be necessary to vest in the Seller’s actual knowledge, the Contracts are in full force legal and effectbeneficial ownership of each repurchased Mortgage Loan or substituted Mortgage Loan, without material default by any party as applicable, (ii) the Trustee, the Custodian, the Master Servicer and without any claims made for the right Special Servicer shall each tender to the Seller, upon delivery to each of setoff, except as expressly provided them of a receipt executed by the terms Seller, all portions of the Mortgage File and other documents pertaining to such Mortgage Loan possessed by it, and (iii) the Master Servicer and the Special Servicer shall release to the Seller any Escrow Payments and Reserve Funds held by it in respect of such Contracts repurchased or as disclosed to Purchaser in writing at the time of such delivery. The Contracts constitute the entire agreements with such vendors relating to the Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excluding, however, the Leases and Permitted Encumbrances) affecting the Property which will survive the Closingdeleted Mortgage Loans.
(f) At Without limiting the Closingremedies of the Purchaser, there will be no outstanding contracts the Certificateholders or the Trustee on behalf of the Certificateholders pursuant to this Agreement, it is acknowledged that the representations and warranties are being made by Seller for risk allocation purposes. This Section 3 provides the construction sole remedy available to the Certificateholders, or repair the Trustee on behalf of the Certificateholders, respecting any Document Defect in a Mortgage File or any Breach of any improvements to the Improvements which have not been fully paid for, and Seller shall cause to be discharged all mechanics’ representation or materialmen’s liens arising from any labor or materials furnished to the Improvements prior to the Closing.
(g) Except as warranty set forth in Exhibit K attached hereto, there are no pending or, or required to Seller’s actual knowledge (without any duty of inquiry or investigation), threatened legal proceedings or actions of any kind or character affecting the Property or Seller’s interest therein, including, without limitation, condemnation proceedingsbe made pursuant to this Section 3.
(h) Seller has not received any actual written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or the Property relating in any way to a Release or compliance with Environmental Laws. For purposes of this Agreement, the phrase “Environmental Laws” shall mean any federal, state or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materials, or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 00
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Wachovia Bank Commercial Mortgage Trust Series 2005-C21)
Representations, Warranties and Covenants of Seller. (a) The Seller hereby represents, represents and warrants to and covenants to Purchaser that with the following matters are true and correct Purchaser, as of the execution of this Agreement and will also be true and correct as of the Closingdate hereof, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx Xxxxxxxxxthat:
(ai) The Seller is a statutory trust duly formed and banking corporation validly existing under the laws of the State of Delaware. New York and possesses all requisite authority, power, licenses, permits and franchises to carry on its business as currently conducted by it and to execute, deliver and comply with its obligations under the terms of this Agreement.
(ii) This Agreement has been, been duly and all the documents executed by Seller which are to be delivered to Purchaser at the Closing will be, duly validly authorized, executed and delivered by the Seller and, assuming due authorization, execution and will be delivery hereof by the Purchaser, constitutes a legal, valid and binding obligations obligation of Seller the Seller, enforceable against the Seller in accordance with their respective terms (its terms, except to the extent that as such enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other laws affecting the enforcement of creditors' rights in general, as they may be applied in the context of the insolvency of a national banking association, and by general equity principles relating to (regardless of whether such enforcement is considered in a proceeding in equity or limiting the right of contracting parties generallyat law), will be sufficient and by public policy considerations underlying the securities laws, to convey title (if they the extent that such public policy considerations limit the enforceability of the provisions of this Agreement which purport to do soprovide indemnification from liabilities under applicable securities laws.
(iii) The execution and delivery of this Agreement by the Seller and the Seller's performance and compliance with the terms of this Agreement will not (A) violate the Seller's certificate of incorporation or By-Laws, (B) violate any provisions law or regulation or any administrative decree or order to which it is subject or (C) constitute a material default (or an event which, with notice or lapse of time, or both, would constitute a material default) under, or result in the breach of, any material contract, agreement or other instrument to which the Seller is a party or to by which the Property or Seller is bound.
(iv) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or other governmental agency or body, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or have consequences that would materially and adversely affect its performance hereunder.
(v) The Seller is not a party to or bound by any agreement or instrument or subject to any certificate of incorporation, bylaws or bound. Subject any other corporate restriction or any judgment, order, writ, injunction, decree, law or regulation that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the ability of the Seller to perform its obligations under this Agreement or that requires the consent of any third person to the satisfaction of Section 8(a)(i) below, no consent, waiver or approval by any third party is required in connection with the execution and delivery by Seller of this Agreement or the performance by the Seller of its obligations under this Agreement (except to the extent such consent has been obtained).
(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 or the consummation of the transactions contemplated by this Agreement except as have previously been obtained, and no bulk sale law applies to such transactions.
(vii) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller that would, in the Seller's good faith and reasonable judgment, prohibit its entering into this Agreement or materially and adversely affect the performance by the Seller of its obligations to be performed by Seller under this Agreement.
(viii) Under generally accepted accounting principles ("GAAP") and for federal income tax purposes, the Seller will report the transfer of the CMB Mortgage Loans to the Purchaser as a sale of the CMB Mortgage Loans to the Purchaser in exchange for consideration consisting of a cash amount equal to the Aggregate Purchase Price. The consideration received by the Seller upon the sale of the CMB Mortgage Loans to the Purchaser will constitute reasonably equivalent value at least equal to the fair market value of the CMB Mortgage Loans. The Seller will be solvent at all relevant times prior to, and will not be rendered insolvent by, the sale of the CMB Mortgage Loans to the Purchaser. The Seller is not selling the CMB Mortgage Loans to the Purchaser with any intent to hinder, delay or defraud any of the creditors of the Seller.
(b) Except The Seller hereby makes the representations and warranties contained in Schedule I and Schedule II hereto for the benefit of the Purchaser and the Trustee for the benefit of the Certificateholders as set forth on Exhibit M attached heretoof the Closing Date, Seller has not received from any governmental authority written notice, with respect to (and Seller has no actual knowledge (without any duty of inquiry or investigationsolely with respect to) of any violation of any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable to the Property, or any part thereof, that will not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change to the zoning classification or any proceedings to widen or realign any streets or highways adjacent to the Property or of any condemnation proceedingseach CMB Mortgage Loan.
(c) To Seller’s actual knowledgeIf the Seller receives written notice of a Document Defect or a Breach pursuant to Section 2.03(a) of the Pooling and Servicing Agreement relating to a CMB Mortgage Loan, then the Seller shall not later than 90 days from receipt of such notice (or, in the case of a Document Defect or Breach relating to a CMB Mortgage Loan not being a "qualified mortgage" within the meaning of the REMIC Provisions (a "Qualified Mortgage"), not later than 90 days of any party to the Pooling and Servicing Agreement discovering such Document Defect or Breach), if such Document Defect or Breach shall materially and adversely affect the value of the related CMB Mortgage Loan or the interest of the Certificateholders therein, cure such Document Defect or Breach, as the case may be, in all material respects, which shall include payment of losses and any Additional Trust Fund Expenses associated therewith or, if such Document Defect or Breach (other than omissions solely due to a document not having been returned by the related recording office) cannot be cured within such 90-day period, (i) repurchase the operating statements, income and expense reports and all other contracts affected CMB Mortgage Loan at the applicable Purchase Price not later than the end of such 90-day period or documents required to be delivered to Purchaser pursuant to this Agreement are true, correct and complete copies; and (ii) substitute a Qualified Substitute Mortgage Loan for such affected CMB Mortgage Loan not later than the end of such 90-day period (and in no event later than the second anniversary of the Closing Date) and pay the Master Servicer for deposit into the Certificate Account, any Substitution Shortfall Amount in connection therewith; provided, however, that if such Document Defect or Breach is capable of being cured but not within such 90-day period, such Document Defect or Breach does not relate to the CMB Mortgage Loan not being treated as a Qualified Mortgage, and the Seller has commenced and is diligently proceeding with the cure of such Document Defect or Breach within such 90-day period, such Seller shall have an additional 90 days to complete such cure (or, failing such cure, to repurchase the related CMB Mortgage Loan); and provided, further, that with respect to such additional 90-day period the Seller shall have delivered an Officer's Certificate to the Trustee setting forth the reason such Document Defect or Breach is not capable of being cured within the initial 90-day period and what actions the Seller is pursuing in connection with the cure thereof and stating that the Seller anticipates that such Document Defect or Breach will be cured within the additional 90-day period. For a period of two years from the Closing Date, so long as there remains any Mortgage File relating to a CMB Mortgage Loan as to which there is any uncured Document Defect or Breach, the Seller shall provide the Officer's Certificate to the Trustee described above as to the reasons such Document Defect or Breach remains uncured and as to the actions being taken to pursue cure; provided, however, that, without limiting the effect of the forgoing provisions of this Section 3(c), if such Document Defect or Breach shall materially and adversely affect the value of such CMB Mortgage Loan or the interests of the holders of the Certificates therein, the Seller shall in all contracts cases on or documents required prior to the second anniversary of the Closing Date either cause such Document Defect or Breach to be cured or repurchase the affected CMB Mortgage Loan. Notwithstanding the foregoing, the delivery of a commitment to issue a policy of lender's title insurance as described in clause (xii) of Schedule I hereof in lieu of the delivery of the actual policy of lender's title insurance shall not be considered a Document Defect or Breach with respect to any Mortgage File if such actual policy of insurance is delivered to Purchaser pursuant to this Agreement are in full force and effect, without material default by any party and without any right of set-off except as disclosed in writing at the time of such deliveryTrustee or a Custodian on its behalf not later than the 90th day following the Closing Date.
(d) There is no master lease In connection with any repurchase or substitution of one or more CMB Mortgage Loans contemplated hereby, upon receipt of a certificate from a Servicing Officer certifying as to the receipt of the Property Purchase Price or Substitution Shortfall Amount(s), as applicable, in the Certificate Account, and the delivery of the Mortgage File(s) and the Servicing File(s) for the related Qualified Substitute Mortgage Loan(s) to any affiliate of the Custodian and the Master Servicer, respectively, if applicable (i) the Trustee shall execute and deliver such endorsements and assignments as are provided to it by the Master Servicer, in each case without recourse, representation or warranty, as shall be necessary to vest in the Seller, the legal and beneficial ownership of each repurchased CMB Mortgage Loan or if such master lease existssubstituted CMB Mortgage Loan, Seller as applicable, and (ii) the Trustee, the Custodian, the Master Servicer and the Special Servicer shall cause such master lease each tender to be terminated at Closing without Purchaser paying any termination fee. The Rent Roll attached hereto as Exhibit B is truethe Seller, correct and complete in upon delivery to each of them of a receipt executed by the Seller, all material respects as portions of the date set forth on the Rent Roll. As of the Closing, the Rent Roll delivered at the Closing will be true, correct and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default by any party and without any right of setoff, except as expressly provided by the terms of such Leases or as disclosed on the Rent Roll attached hereto. The copies of the Leases Mortgage File and other agreements with the tenants under the Leases (the “Tenants”) delivered documents pertaining to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating to the Real Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real PropertyCMB Mortgage Loan possessed by it.
(e) Exhibit J attached hereto is a true and complete schedule of all Without limiting the remedies of the Contracts (as hereinafter defined in Section 7)Purchaser, true, complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy the Certificateholders or the Trustee on behalf of the management agreement currently in effect with respect Certificateholders pursuant to this Agreement, it is acknowledged that the Property. To Seller’s actual knowledge, the Contracts representations and warranties are in full force and effect, without material default by any party and without any claims being made for the right of setoff, except as expressly provided by the terms of such Contracts or as disclosed risk allocation purposes. Subject to Purchaser in writing at the time of such delivery. The Contracts constitute the entire agreements with such vendors relating to the Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excluding, however, the Leases and Permitted Encumbrances) affecting the Property which will survive the Closing.
(f) At the Closing, there will be no outstanding contracts made by Seller for the construction or repair of any improvements to the Improvements which have not been fully paid for, and Seller shall cause to be discharged all mechanics’ or materialmen’s liens arising from any labor or materials furnished to the Improvements prior to the Closing.
(g) Except as set forth in Exhibit K attached hereto, there are no pending or, to Seller’s actual knowledge (without any duty of inquiry or investigation), threatened legal proceedings or actions of any kind or character affecting the Property or Seller’s interest therein, including, without limitation, condemnation proceedings.
(h) Seller has not received any actual written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or the Property relating in any way to a Release or compliance with Environmental Laws. For purposes Section 7 of this Agreement, this Section 3 provides the phrase “Environmental Laws” shall mean any federal, state or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materialssole remedy available to the Certificateholders, or the environmentTrustee on behalf of the Certificateholders, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act respecting any Document Defect in a Mortgage File or any Breach of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 00any representation or warranty set forth in or required to be made pursuant to Section 2 of this Agreement.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Commercial Mortgage Pass Through Certiticates Series 1999 C2)
Representations, Warranties and Covenants of Seller. (a) The Seller hereby represents, represents and warrants to and covenants to Purchaser that with the following matters are true and correct Purchaser, as of the execution of this Agreement and will also be true and correct as of the Closingdate hereof, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx Xxxxxxxxxthat:
(ai) The Seller is a statutory trust duly formed national banking association organized and validly existing and in good standing under the laws of the State United States and possesses all requisite authority, power, licenses, permits and franchises to carry on its business as currently conducted by it and to execute, deliver and comply with its obligations under the terms of Delaware. this Agreement;
(ii) This Agreement has been, been duly and all the documents executed by Seller which are to be delivered to Purchaser at the Closing will be, duly validly authorized, executed and delivered by the Seller and, assuming due authorization, execution and will be delivery hereof by the Purchaser, constitutes a legal, valid and binding obligations obligation of Seller the Seller, enforceable against the Seller in accordance with their respective terms (its terms, except to the extent that as such enforcement may be limited by applicable bankruptcy, insolvency, reorganization, receivership, moratorium and other laws affecting the enforcement of creditors' rights in general, as they may be applied in the context of the insolvency of a national banking association, and by general equity principles relating to (regardless of whether such enforcement is considered in a proceeding in equity or limiting the right of contracting parties generallyat law), will be sufficient and by public policy considerations underlying the securities laws, to convey title (if they the extent that such public policy considerations limit the enforceability of the provisions of this Agreement which purport to do soprovide indemnification from liabilities under applicable securities laws;
(iii) The execution and delivery of this Agreement by the Seller and the Seller's performance and compliance with the terms of this Agreement will not (A) violate the Seller's articles of association or bylaws, (B) violate any provisions law or regulation or any administrative decree or order to which it is subject or (C) constitute a material default (or an event which, with notice or lapse of time, or both, would constitute a material default) under, or result in the breach of, any material contract, agreement or other instrument to which the Seller is a party or to by which the Property or Seller is bound;
(iv) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or other governmental agency or body, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or have consequences that would materially and adversely affect its performance hereunder;
(v) The Seller is not a party to or bound by any agreement or instrument or subject to any articles of association, bylaws or bound. Subject any other corporate restriction or any judgment, order, writ, injunction, decree, law or regulation that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the ability of the Seller to perform its obligations under this Agreement or that requires the consent of any third person to the satisfaction of Section 8(a)(i) below, no consent, waiver or approval by any third party is required in connection with the execution and delivery by Seller of this Agreement or the performance by the Seller of its obligations under this Agreement (except to the extent such consent has been obtained);
(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 or the consummation of the transactions contemplated by this Agreement except as have previously been obtained, and no bulk sale law applies to such transactions; (vii) No litigation is pending or, to the Seller's knowledge, threatened against the Seller that would, in the Seller's good faith and reasonable judgment, prohibit its entering into this Agreement or materially and adversely affect the performance by the Seller of its obligations to be performed by Seller under this Agreement; and
(viii) Under generally accepted accounting principles ("GAAP") and for federal income tax purposes, the Seller will report the transfer of the Mortgage Loans to the Purchaser as a sale of the Mortgage Loans to the Purchaser in exchange for consideration consisting of a cash amount equal to the Aggregate Purchase Price. The consideration received by the Seller upon the sale of the Mortgage Loans to the Purchaser will constitute at least reasonably equivalent value and fair consideration for the Mortgage Loans. The Seller will be solvent at all relevant times prior to, and will not be rendered insolvent by, the sale of the Mortgage Loans to the Purchaser. The Seller is not selling the Mortgage Loans to the Purchaser with any intent to hinder, delay or defraud any of the creditors of the Seller.
(b) Except The Seller hereby makes the representations and warranties contained in Schedule I and Schedule II hereto for the benefit of the Purchaser and the Trustee for the benefit of the Certificateholders as of the Closing Date, with respect to (and solely with respect to) each Mortgage Loan, which representations and warranties are subject to the exceptions set forth on Exhibit M attached hereto, Seller has not received from any governmental authority written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any violation of any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable to the Property, or any part thereof, that will not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change to the zoning classification or any proceedings to widen or realign any streets or highways adjacent to the Property or of any condemnation proceedingsin Schedule III.
(c) To Seller’s If the Seller receives written notice of a Document Defect or a Breach pursuant to Section 2.03(a) of the Pooling and Servicing Agreement relating to a Mortgage Loan, then the Seller shall not later than 90 days from receipt of such notice (or, in the case of a Document Defect or Breach relating to a Mortgage Loan not being a "qualified mortgage" within the meaning of the REMIC Provisions (a "Qualified Mortgage"), not later than 90 days from any party to the Pooling and Servicing Agreement discovering such Document Defect or Breach provided the Seller receives such notice in a timely manner), if such Document Defect or Breach shall materially and adversely affect the value of the applicable Mortgage Loan or the interests of the Certificateholders therein, cure such Document Defect or Breach, as the case may be, in all material respects, which shall include payment of actual knowledgeor provable losses and any Additional Trust Fund Expenses directly resulting therefrom or, if such Document Defect or Breach (other than omissions solely due to a document not having been returned by the related recording office) cannot be cured within such 90-day period, (i) repurchase the operating statementsaffected Mortgage Loan at the applicable Purchase Price not later than the end of such 90-day period or (ii) substitute a Qualified Substitute Mortgage Loan for such affected Mortgage Loan not later than the end of such 90-day period (and in no event later than the second anniversary of the Closing Date) and pay the Master Servicer for deposit into the Certificate Account, income any Substitution Shortfall Amount in connection therewith; provided, however, that unless the Breach would cause the Mortgage Loan not to be a Qualified Mortgage, and expense reports if such Document Defect or Breach is capable of being cured but not within such 90-day period and all the Seller has commenced and is diligently proceeding with the cure of such Document Defect or Breach within such 90-day period, such Seller shall have an additional 90 days to complete such cure (or, failing such cure, to repurchase or substitute the related Mortgage Loan); and provided, further, that with respect to such additional 90-day period the Seller shall have delivered an officer's certificate to the Trustee setting forth the reasons such Document Defect or Breach is not capable of being cured within the initial ninety (90) day period and what actions the Seller is pursuing in connection with the cure thereof and stating that the Seller anticipates that such Document Defect or Breach will be cured within the additional 90-day period; and provided; further, that no Document Defect (other contracts than with respect to a Mortgage Note, Mortgage, title insurance policy, Ground Lease or documents any letter of credit) shall be considered to materially and adversely affect the value of the related Mortgage Loan or the interests of the Certificateholders therein unless the document with respect to which the Document Defect exists is required in connection with an imminent enforcement of the mortgagee's rights or remedies under the related Mortgage Loan, defending any claim asserted by any borrower or third party with respect to the Mortgage Loan, establishing the validity or priority of any lien or any collateral securing the Mortgage Loan or for any immediate significant servicing obligations. For a period of two years from the Closing Date, so long as there remains any Mortgage File relating to a Mortgage Loan as to which there is any uncured Document Defect or Breach, the Seller shall provide the officer's certificate to the Trustee described above as to the reasons such Document Defect or Breach remains uncured and as to the actions being taken to pursue cure. Notwithstanding the foregoing, the delivery of a commitment to issue a policy of lender's title insurance as described in clause 12 of Schedule I hereof in lieu of the delivery of the actual policy of lender's title insurance shall not be considered a Document Defect or Breach with respect to any Mortgage File if such actual policy of insurance is delivered to the Trustee or a Custodian on its behalf not later than the 90th day following the Closing Date. If (i) any Mortgage Loan is required to be delivered to Purchaser pursuant to this Agreement are truerepurchased or substituted for in the manner described in the immediately preceding paragraph, correct and complete copies; and (ii) such Mortgage Loan is a Crossed Loan, and (iii) the applicable Document Defect or Breach does not constitute a Document Defect or Breach, as the case may be, as to any other Crossed Loan in such Crossed Group (without regard to this paragraph), then the applicable Document Defect or Breach, as the case may be, will be deemed to constitute a Document Defect or Breach, as the case may be, as to any other Crossed Loan in the Crossed Group for purposes of this paragraph, and the Seller will be required to repurchase or substitute for all contracts of the remaining Crossed Loan(s) in the related Crossed Group as provided in the immediately preceding paragraph unless such other Crossed Loans in such Crossed Group satisfy the Crossed Loan Repurchase Criteria and satisfy all other criteria for substitution and repurchase of Mortgage Loans set forth herein. In the event that the remaining Crossed Loans satisfy the aforementioned criteria, the Seller may elect either to repurchase or documents substitute for only the affected Crossed Loan as to which the related Breach or Document Defect exists or to repurchase or substitute for all of the Crossed Loans in the related Crossed Group. The Seller shall be responsible for the cost of any Appraisal required to be delivered obtained by the Master Servicer to determine if the Crossed Loan Repurchase Criteria have been satisfied, so long as the scope and cost of such Appraisal has been approved by the Seller (such approval not to be unreasonably withheld). To the extent that the Seller is required to repurchase or substitute for a Crossed Loan hereunder in the manner prescribed above while the Trustee continues to hold any other Crossed Loans in such Crossed Group, the Seller and the Purchaser pursuant shall not enforce any remedies against the other's Primary Collateral, but each is permitted to exercise remedies against the Primary Collateral securing its respective Crossed Loans, including with respect to the Trustee, the Primary Collateral securing Crossed Loans still held by the Trustee, so long as such exercise does not impair the ability of the other party to exercise its remedies against its Primary Collateral. If the exercise of remedies by one party would impair the ability of the other party to exercise its remedies with respect to the Primary Collateral securing the Crossed Loans held by such party, then the Seller and the Purchaser shall forbear from exercising such remedies until the Mortgage Loan documents evidencing and securing the relevant Crossed Loans can be modified in a manner that complies with this Agreement are to remove the threat of impairment as a result of the exercise of remedies. Any reserve or other cash collateral or letters of credit securing the Crossed Loans shall be allocated between such Crossed Loans in full force and effectaccordance with the Mortgage Loan documents, without material or otherwise on a pro rata basis based upon their outstanding Stated Principal Balances. Notwithstanding the foregoing, if a Crossed Loan included in the Trust Fund is modified to terminate the related cross-collateralization and/or cross-default by provisions, the Seller shall furnish to the Trustee an Opinion of Counsel that any party and without any right of set-off except as disclosed in writing at the time of such deliverymodification shall not cause an Adverse REMIC Event.
(d) There is no master lease In connection with any permitted repurchase or substitution of one or more Mortgage Loans contemplated hereby, upon receipt of a certificate from a Servicing Officer certifying as to the receipt of the Property Purchase Price or Substitution Shortfall Amount(s), as applicable, in the Certificate Account, and the delivery of the Mortgage File(s) and the Servicing File(s) for the related Qualified Substitute Mortgage Loan(s) to any affiliate of the Custodian and the Master Servicer, respectively, if applicable (i) the Trustee shall execute and deliver such endorsements and assignments as are provided to it by the Master Servicer, in each case without recourse, representation or warranty, as shall be necessary to vest in the Seller, the legal and beneficial ownership of each repurchased Mortgage Loan or if such master lease existssubstituted Mortgage Loan, Seller as applicable, (ii) the Trustee, the Custodian, the Master Servicer and the Special Servicer shall cause such master lease each tender to be terminated at Closing without Purchaser paying any termination fee. The Rent Roll attached hereto as Exhibit B is truethe Seller, correct and complete in upon delivery to each of them of a receipt executed by the Seller, all material respects as portions of the date set forth on Mortgage File and other documents pertaining to such Mortgage Loan possessed by it, and (iii) the Rent Roll. As of Master Servicer and the Closing, Special Servicer shall release to the Rent Roll delivered at the Closing will be true, correct Seller any Escrow Payments and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are Reserve Funds held by it in full force and effect, without default by any party and without any right of setoff, except as expressly provided by the terms respect of such Leases repurchased or as disclosed on the Rent Roll attached hereto. The copies of the Leases and other agreements with the tenants under the Leases (the “Tenants”) delivered to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating to the Real Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real Propertydeleted Mortgage Loans.
(e) Exhibit J attached hereto is a true and complete schedule of all Without limiting the remedies of the Contracts (as hereinafter defined in Section 7)Purchaser, true, complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy the Certificateholders or the Trustee on behalf of the management agreement currently in effect with respect Certificateholders pursuant to this Agreement, it is acknowledged that the representations and warranties are being made for risk allocation purposes. This Section 3 provides the sole remedy available to the Property. To Seller’s actual knowledgeCertificateholders, or the Contracts are Trustee on behalf of the Certificateholders, respecting any Document Defect in full force and effect, without material default by a Mortgage File or any party and without any claims made for the right of setoff, except as expressly provided by the terms of such Contracts or as disclosed to Purchaser in writing at the time of such delivery. The Contracts constitute the entire agreements with such vendors relating to the Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excluding, however, the Leases and Permitted Encumbrances) affecting the Property which will survive the Closing.
(f) At the Closing, there will be no outstanding contracts made by Seller for the construction or repair Breach of any improvements to the Improvements which have not been fully paid for, and Seller shall cause to be discharged all mechanics’ representation or materialmen’s liens arising from any labor or materials furnished to the Improvements prior to the Closing.
(g) Except as warranty set forth in Exhibit K attached hereto, there are no pending or, or required to Seller’s actual knowledge (without any duty of inquiry or investigation), threatened legal proceedings or actions of any kind or character affecting the Property or Seller’s interest therein, including, without limitation, condemnation proceedings.
(h) Seller has not received any actual written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or the Property relating in any way be made pursuant to a Release or compliance with Environmental Laws. For purposes Section 3 of this Agreement, the phrase “Environmental Laws” shall mean any federal, state or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materials, or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 00.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Wachovia Commercial Mort Pass Thru Cert Ser 2002-C2)
Representations, Warranties and Covenants of Seller. (a) The Seller hereby represents, represents and warrants to and covenants to Purchaser that with the following matters are true and correct Purchaser, as of the execution of this Agreement and will also be true and correct as of the Closingdate hereof, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx Xxxxxxxxxthat:
(ai) The Seller is a statutory trust duly formed corporation organized and validly existing and in good standing under the laws of the State of Delaware. Maryland and possesses all requisite authority, power, licenses, permits and franchises to carry on its business as currently conducted by it and to execute, deliver and comply with its obligations under the terms of this Agreement;
(ii) This Agreement has been, been duly and all the documents executed by Seller which are to be delivered to Purchaser at the Closing will be, duly validly authorized, executed and delivered by the Seller and, assuming due authorization, execution and will be delivery hereof by the Purchaser, constitutes a legal, valid and binding obligations obligation of Seller the Seller, enforceable against the Seller in accordance with their respective terms (its terms, except to the extent that as such enforcement may be limited by applicable bankruptcy, insolvency, reorganization, receivership, moratorium and other laws affecting the enforcement of creditors' rights in general, as they may be applied in the context of the insolvency of a corporation, and by general equity principles relating to (regardless of whether such enforcement is considered in a proceeding in equity or limiting the right of contracting parties generallyat law), will be sufficient and by public policy considerations underlying the securities laws, to convey title (if they the extent that such public policy considerations limit the enforceability of the provisions of this Agreement which purport to do soprovide indemnification from liabilities under applicable securities laws;
(iii) The execution and delivery of this Agreement by the Seller and the Seller's performance and compliance with the terms of this Agreement will not (A) violate the Seller's articles of incorporation or bylaws, (B) violate any provisions law or regulation or any administrative decree or order to which it is subject or (C) constitute a material default (or an event which, with notice or lapse of time, or both, would constitute a material default) under, or result in the breach of, any material contract, agreement or other instrument to which the Seller is a party or to by which the Property or Seller is bound;
(iv) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or other governmental agency or body, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or have consequences that would materially and adversely affect its performance hereunder;
(v) The Seller is not a party to or bound by any agreement or instrument or subject to any articles of incorporation, bylaws or bound. Subject any other corporate restriction or any judgment, order, writ, injunction, decree, law or regulation that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the ability of the Seller to perform its obligations under this Agreement or that requires the consent of any third person to the satisfaction of Section 8(a)(i) below, no consent, waiver or approval by any third party is required in connection with the execution and delivery by Seller of this Agreement or the performance by the Seller of its obligations under this Agreement (except to the extent such consent has been obtained);
(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 or the consummation of the transactions contemplated by this Agreement except as have previously been obtained, and no bulk sale law applies to such transactions;
(vii) No litigation is pending or, to the Seller's knowledge, threatened against the Seller that would, in the Seller's good faith and reasonable judgment, prohibit its entering into this Agreement or materially and adversely affect the performance by the Seller of its obligations to be performed by Seller under this Agreement; and
(viii) Under generally accepted accounting principles ("GAAP") and for federal income tax purposes, the Seller will report the transfer of the Mortgage Loans to the Purchaser as a sale of the Mortgage Loans to the Purchaser in exchange for consideration consisting of a cash amount equal to the Purchase Price. The consideration received by the Seller upon the sale of the Mortgage Loans to the Purchaser will constitute reasonably equivalent value at least equal to the fair market value of the Mortgage Loans. The Seller will be solvent at all relevant times prior to, and will not be rendered insolvent by, the sale of the Mortgage Loans to the Purchaser. The Seller is not selling the Mortgage Loans to the Purchaser with any intent to hinder, delay or defraud any of the creditors of the Seller.
(b) Except The Seller hereby makes the representations and warranties contained in Schedule I, Schedule II and Schedule III hereto for the benefit of the Purchaser and the Trustee for the benefit of the Certificateholders as set forth on Exhibit M attached heretoof the Closing Date, Seller has not received from any governmental authority written notice, with respect to (and Seller has no actual knowledge (without any duty of inquiry or investigationsolely with respect to) of any violation of any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable to the Property, or any part thereof, that will not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change to the zoning classification or any proceedings to widen or realign any streets or highways adjacent to the Property or of any condemnation proceedingseach Mortgage Loan.
(c) To Seller’s actual knowledgeIf the Seller discovers or receives written notice of a Document Defect or a Breach pursuant to Section 2.03(a) of the Pooling and Servicing Agreement relating to a Mortgage Loan, then the Seller shall not later than 90 days from receipt of such notice (or, in the case of a Document Defect or Breach relating to a Mortgage Loan not being a "qualified mortgage" within the meaning of the REMIC Provisions (a "Qualified Mortgage"), not later than 90 days from any party to the Pooling and Servicing Agreement discovering such Document Defect or Breach provided the Seller receives such notice in a timely manner), if such Document Defect or Breach shall materially and adversely affect the value of the related Mortgage Loan or the interest of the Certificateholders therein, cure such Document Defect or Breach, as the case may be, in all material respects, which shall include payment of losses and any Additional Trust Fund Expenses associated therewith or, if such Document Defect or Breach (other than omissions solely due to a document not having been returned by the related recording office) cannot be cured within such 90-day period, (i) repurchase the operating statements, income and expense reports and all other contracts affected Mortgage Loan at the applicable Purchase Price not later than the end of such 90-day period or documents required to be delivered to Purchaser pursuant to this Agreement are true, correct and complete copies; and (ii) all contracts or documents required substitute a Qualified Substitute Mortgage Loan for such affected Mortgage Loan not later than the end of such 90-day period (and in no event later than the second anniversary of the Closing Date) and pay the Master Servicer for deposit into the Certificate Account, any Substitution Shortfall Amount in connection therewith; provided, however, that unless the breach would cause the Mortgage Loan not to be a Qualified Mortgage, and if such Document Defect or Breach is capable of being cured but not within such 90-day period and the Seller has commenced and is diligently proceeding with the cure of such Document Defect or Breach within such 90-day period, such Seller shall have an additional 90 days to complete such cure (or, failing such cure, to repurchase or substitute the related Mortgage Loan); and provided, further, that with respect to such additional 90-day period the Seller shall have delivered an officer's certificate to the Trustee setting forth the reason such Document Defect or Breach is not capable of being cured within the initial 90-day period and what actions the Seller is pursuing in connection with the cure thereof and stating that the Seller anticipates that such Document Defect or Breach will be cured within the additional 90-day period; and provided; further, that no Document Defect (other than with respect to a Mortgage Note, Mortgage, title insurance policy, Ground Lease or any letter of credit) shall be considered to materially and adversely affect the interests of the Certificateholders or the value of the related Mortgage Loan unless the document with respect to which the Document Defect exists is required in connection with an imminent enforcement of the mortgagee's rights or remedies under the related Mortgage Loan, defending any claim asserted by any borrower or third party with respect to the Mortgage Loan, establishing the validity or priority of any lien or any collateral securing the Mortgage Loan or for any immediate servicing obligations. A Document Defect or Breach as to a Mortgage Loan that is cross-collateralized and cross-defaulted with one or more other Mortgage Loans (each a "Crossed Loan") that materially and adversely affects the value of such other Mortgage Loans, and is not cured as provided for above, shall require the repurchase or substitution of all such cross-collateralized and cross-defaulted Mortgage Loans which are materially and adversely affected by such Document Defect or Breach; provided, that if any Crossed Loan is not so repurchased or substituted, then such Crossed Loan shall be released from its cross-collateralization and cross-default provision so long as such Crossed Loan is held in the Trust Fund; provided, further, that the borrower under such Mortgage Loan is an intended third party beneficiary of this provision, which shall not be modified without such borrower's consent. For a period of two years from the Closing Date, so long as there remains any Mortgage File relating to a Mortgage Loan as to which there is any uncured Document Defect or Breach, the Seller shall provide the officer's certificate to the Trustee described above as to the reasons such Document Defect or Breach remains uncured and as to the actions being taken to pursue cure; provided, however, that, without limiting the effect of the foregoing provisions of this Section 3(c), if such Document Defect or Breach shall materially and adversely affect the value of such Mortgage Loan or the interests of the holders of the Certificates therein (subject to the last proviso in the immediately preceding sentence), the Seller shall in all cases on or prior to the second anniversary of the Closing Date either cause such Document Defect or Breach to be cured or repurchase or substitute for the affected Mortgage Loan. Notwithstanding the foregoing, the delivery of a commitment to issue a policy of lender's title insurance as described in clause 12 of Schedule I hereof in lieu of the delivery of the actual policy of lender's title insurance shall not be considered a Document Defect or Breach with respect to any Mortgage File if such actual policy of insurance is delivered to Purchaser pursuant to this Agreement are in full force and effect, without material default by any party and without any right of set-off except as disclosed in writing at the time of such deliveryTrustee or a Custodian on its behalf not later than the 90th day following the Closing Date.
(d) There is no master lease In connection with any permitted repurchase or substitution of one or more Mortgage Loans contemplated hereby, upon receipt of a certificate from a Servicing Officer certifying as to the receipt of the Property Purchase Price or Substitution Shortfall Amount(s), as applicable, in the Certificate Account, and the delivery of the Mortgage File(s) and the Servicing File(s) for the related Qualified Substitute Mortgage Loan(s) to any affiliate of the Custodian and the Master Servicer, respectively, if applicable (i) the Trustee shall execute and deliver such endorsements and assignments as are provided to it by the Master Servicer, in each case without recourse, representation or warranty, as shall be necessary to vest in the Seller, the legal and beneficial ownership of each repurchased Mortgage Loan or if such master lease existssubstituted Mortgage Loan, Seller as applicable, and (ii) the Trustee, the Custodian, the Master Servicer and the Special Servicer shall cause such master lease each tender to be terminated at Closing without Purchaser paying any termination fee. The Rent Roll attached hereto as Exhibit B is truethe Seller, correct and complete in upon delivery to each of them of a receipt executed by the Seller, all material respects as portions of the date set forth on the Rent Roll. As of the Closing, the Rent Roll delivered at the Closing will be true, correct and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default by any party and without any right of setoff, except as expressly provided by the terms of such Leases or as disclosed on the Rent Roll attached hereto. The copies of the Leases Mortgage File and other agreements with the tenants under the Leases (the “Tenants”) delivered documents pertaining to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating to the Real Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real PropertyMortgage Loan possessed by it.
(e) Exhibit J attached hereto is a true and complete schedule of all Without limiting the remedies of the Contracts (as hereinafter defined in Section 7)Purchaser, true, complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy the Certificateholders or the Trustee on behalf of the management agreement currently in effect with respect Certificateholders pursuant to this Agreement, it is acknowledged that the representations and warranties are being made for risk allocation purposes. This Section 3 provides the sole remedy available to the Property. To Seller’s actual knowledgeCertificateholders, or the Contracts are Trustee on behalf of the Certificateholders, respecting any Document Defect in full force and effect, without material default by a Mortgage File or any party and without any claims made for the right of setoff, except as expressly provided by the terms of such Contracts or as disclosed to Purchaser in writing at the time of such delivery. The Contracts constitute the entire agreements with such vendors relating to the Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excluding, however, the Leases and Permitted Encumbrances) affecting the Property which will survive the Closing.
(f) At the Closing, there will be no outstanding contracts made by Seller for the construction or repair Breach of any improvements to the Improvements which have not been fully paid for, and Seller shall cause to be discharged all mechanics’ representation or materialmen’s liens arising from any labor or materials furnished to the Improvements prior to the Closing.
(g) Except as warranty set forth in Exhibit K attached hereto, there are no pending or, or required to Seller’s actual knowledge (without any duty of inquiry or investigation), threatened legal proceedings or actions of any kind or character affecting the Property or Seller’s interest therein, including, without limitation, condemnation proceedings.
(h) Seller has not received any actual written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or the Property relating in any way be made pursuant to a Release or compliance with Environmental Laws. For purposes Section 3 of this Agreement, the phrase “Environmental Laws” shall mean any federal, state or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materials, or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 00.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (First Union Commercial Mortgage Pass THR Cer Ser 2001-C3)
Representations, Warranties and Covenants of Seller. (a) The Seller hereby represents, represents and warrants to and covenants to Purchaser that with the following matters are true and correct Purchaser, as of the execution of this Agreement and will also be true and correct as of the Closingdate hereof, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx Xxxxxxxxxthat:
(ai) The Seller is a statutory trust duly formed and organized or formed, as the case may be, validly existing and in good standing as a legal entity under the laws of the State United States and possesses all requisite authority, power, licenses, permits and franchises to carry on its business as currently conducted by it and to execute, deliver and comply with its obligations under the terms of Delaware. this Agreement.
(ii) This Agreement has been, been duly and all the documents executed by Seller which are to be delivered to Purchaser at the Closing will be, duly validly authorized, executed and delivered by the Seller and, assuming due authorization, execution and will be delivery hereof by the Purchaser, constitutes a legal, valid and binding obligations obligation of Seller the Seller, enforceable against the Seller in accordance with their respective terms (its terms, except to the extent that as such enforcement may be limited by applicable (A) bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws affecting the enforcement of creditors' rights in general, and other (B) general equity principles relating to (regardless of whether such enforcement is considered in a proceeding in equity or limiting at law).
(iii) The execution and delivery of this Agreement by the right Seller and the Seller's performance and compliance with the terms of contracting parties generally), will be sufficient to convey title (if they purport to do so) and this Agreement will not (A) violate the Seller's organizational documents, (B) violate any provisions law or regulation or any administrative decree or order to which the Seller is subject if compliance therewith is material to (i) the enforceability of this Agreement or any other agreements contemplated hereby or (ii) the Seller's ability to perform its duties and obligations under, or contemplated by, this Agreement, or (C) constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material contract, agreement or other instrument to which the Seller is a party or to by which the Property or Seller is subject bound, the effect of which default or bound. Subject breach would be material to the satisfaction Seller or which violation or default would have a material adverse effect on the performance of Section 8(a)(iits obligations under, or contemplated by, this Agreement.
(iv) belowThe Seller is not in default with respect to any order or decree of any court or any order, no consentregulation or demand of any federal, waiver state, municipal or approval other governmental agency or body, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or have consequences that would materially and adversely affect its performance hereunder.
(v) The Seller is not a party to or bound by any agreement or instrument or subject to any organizational document or any other corporate or limited liability company (as applicable) restriction or any judgment, order, writ, injunction, decree, law or regulation that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the ability of the Seller to perform its obligations under this Agreement or that requires the consent of any third party is required in connection with person to the execution and delivery by Seller of this Agreement by the Seller or the performance by the Seller of the its obligations to be performed by Seller under this Agreement.
(vi) Except for the recordation and/or filing of assignments and other transfer documents with respect to the Mortgage Loans, as contemplated by Section 2(d) hereof, no consent, approval, authorization or order of, registration or filing with, or notice to, 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; and no bulk sale law applies to such transactions.
(vii) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller that would, in the Seller's good faith and reasonable judgment, prohibit its entering into this Agreement or materially and adversely affect the performance by the Seller of its obligations under this Agreement.
(viii) No proceedings looking toward liquidation, dissolution or bankruptcy of the Seller are pending or contemplated. In addition, the Seller hereby further represents and warrants to, and covenants with, the Purchaser, as of the date hereof, that:
(i) Under generally accepted accounting principles ("GAAP") and for federal income tax purposes, the Seller will report the transfer of the Mortgage Loans to the Purchaser, as provided herein, as a sale of the Mortgage Loans to the Purchaser in exchange for the consideration specified in Section 1 hereof. In connection with the foregoing, the Seller shall cause all of its records to reflect such transfer as a sale (as opposed to a secured loan). The consideration received by the Seller upon the sale of the Mortgage Loans to the Purchaser will constitute at least reasonably equivalent value and fair consideration for the Mortgage Loans. The Seller will be solvent at all relevant times prior to, and will not be rendered insolvent by, the sale of the Mortgage Loans to the Purchaser. The Seller is not selling the Mortgage Loans to the Purchaser with any intent to hinder, delay or defraud any of the creditors of the Seller. After giving effect to its transfer of the Mortgage Loans to the Purchaser, as provided herein, the value of the Seller's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Seller's debts and obligations, including contingent and unliquidated debts and obligations of the Seller, and the Seller will not be left with unreasonably small assets or capital with which to engage in and conduct its business. The Mortgage Loans do not constitute all or substantially all of the assets of the Seller. The Seller does not intend to, and does not believe that it will, incur debts or obligations beyond its ability to pay such debts and obligations as they mature.
(ii) The Seller will acquire the Seller's Residual Interest Certificates for its own account and not with a view or intention to distribute such Residual Interest Certificates, in whole or in part, in any manner that would violate the Securities Act or any applicable state securities laws.
(iii) The Seller understands that (A) the Seller's Residual Interest Certificates have not been and will not be registered under the Securities Act or registered or qualified under any applicable state securities laws, (B) neither the Purchaser nor any other party is obligated so to register or qualify the Seller's Residual Interest Certificates and (C) neither the Seller's Residual Interest Certificates nor any security issued in exchange therefor or in lieu thereof may be (1) sold or transferred in connection with a distribution unless it is registered pursuant to the Securities Act and registered or qualified pursuant to any applicable state securities laws or (2) sold, transferred or distributed in a transaction which is exempt from such registration and qualification and the Certificate Registrar has received the certifications and/or opinions of counsel required by the Pooling and Servicing Agreement.
(iv) The Seller understands that it may not sell or otherwise transfer the Seller's Residual Interest Certificates, any security issued in exchange therefor or in lieu thereof or any interest in the foregoing except in compliance with the provisions of Section 5.02 of the Pooling and Servicing Agreement, which provisions it has or, as of the Closing Date, will have carefully reviewed, and that the Seller's Residual Interest Certificates will bear legends that identify the transfer restrictions to which such Certificates are subject.
(v) Neither the Seller nor anyone acting on its behalf has (A) offered, transferred, pledged, sold or otherwise disposed of any Seller's Residual Interest Certificate, any interest in a Seller's Residual Interest Certificate or any other similar security to any person in any manner, (B) solicited any offer to buy or accept a transfer, pledge or other disposition of any Seller's Residual Interest Certificate, any interest in a Seller's Residual Interest Certificate or any other similar security from any person in any manner, (C) otherwise approached or negotiated with respect to any Seller's Residual Interest Certificate, any interest in a Seller's Residual Interest Certificate or any other similar security with any person in any manner, (D) made any general solicitation by means of general advertising or in any other manner, or (E) taken any other action, that (in the case of any of the acts described in clauses (A) through (E) above) would constitute a distribution of the Seller's Residual Interest Certificates under the Securities Act, would render the disposition of the Seller's Residual Interest Certificates a violation of Section 5 of the Securities Act or any state securities law or would require registration or qualification of the Seller's Residual Interest Certificates pursuant thereto. The Seller will not act, nor has it authorized nor will it authorize any person to act, in any manner set forth in the foregoing sentence with respect to the Seller's Residual Interest Certificates, any interest in the Seller's Residual Interest Certificates or any other similar security.
(vi) The Seller has been furnished with all information regarding (A) the Purchaser, (B) the Seller's Residual Interest Certificates and distributions thereon, (C) the nature, performance and servicing of the Other Loans, (D) the Pooling and Servicing Agreement and the Trust Fund, and (E) all related matters, that it has requested.
(vii) The Seller is either (a) a "qualified institutional buyer" within the meaning of Rule 144A under the Securities Act or (b) Except an "accredited investor" as defined in any of paragraphs (1), (2), (3) and (7) of Rule 501(a) under the Securities Act or an entity in which all its equity owners are "accredited investors" as defined in such paragraphs and has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Seller's Residual Interest Certificates. The Seller has sought such accounting, legal and tax advice as it has considered necessary to make an informed investment decision; and the Seller is able to bear the economic risks of such an investment and can afford a complete loss of such investment.
(viii) The Seller is not a Plan and is not directly or indirectly acquiring the Seller's Residual Interest Certificates on behalf of, as named fiduciary of, as trustee of or with assets of a Plan.
(ix) The Seller is a United States Tax Person and is not a Disqualified Organization.
(b) The Seller hereby makes, for the benefit of the Purchaser, with respect to each Mortgage Loan, as of the Closing Date or as of such other date expressly set forth therein, each of the representations and warranties set forth on Exhibit M attached B hereto, Seller has not received from any governmental authority written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any violation of any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable to the Property, or any part thereof, that will not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change to the zoning classification or any proceedings to widen or realign any streets or highways adjacent to the Property or of any condemnation proceedings.
(c) To The Seller intends to transfer the Seller’s actual knowledge's Residual Interest Certificates to Xxxxxxx Lynch, (i) Pierce, Xxxxxx Xxxxx Inc. on or about the operating statementsClosing Date; and, income and expense reports and all other contracts or documents required to be delivered to Purchaser pursuant to this Agreement are true, correct and complete copies; and (ii) all contracts or documents required to be delivered to Purchaser pursuant to this Agreement are in full force and effect, without material default by any party and without any right of set-off except as disclosed in writing at the time of such delivery.
(d) There is no master lease of the Property to any affiliate of Seller, or if such master lease exists, Seller shall cause such master lease to be terminated at Closing without Purchaser paying any termination fee. The Rent Roll attached hereto as Exhibit B is true, correct and complete in all material respects as of the date set forth on the Rent Roll. As of the Closingconnection therewith, the Rent Roll delivered at the Closing Seller will be true, correct and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default by any party and without any right of setoff, except as expressly provided by the terms of such Leases or as disclosed on the Rent Roll attached hereto. The copies of the Leases and other agreements comply with the tenants under the Leases (the “Tenants”) delivered to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating to the Real Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real Property.
(e) Exhibit J attached hereto is a true and complete schedule of all of the Contracts (as hereinafter defined in requirements of Section 7), true, complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy 5.02 of the management agreement currently Pooling and Servicing Agreement, as in effect with respect to on the Property. To Seller’s actual knowledgeClosing Date, the Contracts are in full force and effect, without material default by any party and without any claims made for the right of setoff, except as expressly provided by the terms of such Contracts or as disclosed to Purchaser in writing at the time of such deliveryapplicable law. The Contracts constitute Seller hereby directs the entire agreements with such vendors relating Purchaser to cause the Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excluding, however, the Leases and Permitted Encumbrances) affecting the Property which will survive the Closing.
(f) At the Closing, there will be no outstanding contracts made by Seller for the construction or repair of any improvements to the Improvements which have not been fully paid for, and Seller shall cause Seller's Residual Interest Certificates to be discharged all mechanics’ or materialmen’s liens arising from any labor or materials furnished to registered in the Improvements prior to the Closingname of Xxxxxxx Lynch, Pierce, Xxxxxx Xxxxx Inc. upon initial issuance.
(g) Except as set forth in Exhibit K attached hereto, there are no pending or, to Seller’s actual knowledge (without any duty of inquiry or investigation), threatened legal proceedings or actions of any kind or character affecting the Property or Seller’s interest therein, including, without limitation, condemnation proceedings.
(h) Seller has not received any actual written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or the Property relating in any way to a Release or compliance with Environmental Laws. For purposes of this Agreement, the phrase “Environmental Laws” shall mean any federal, state or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materials, or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 00
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (LB-UBS Commercial Mortgage Trust 2007-C7)
Representations, Warranties and Covenants of Seller. (a) The Seller hereby represents, represents and warrants to and covenants to Purchaser that with the following matters are true and correct Purchaser, as of the execution of this Agreement and will also be true and correct as of the Closingdate hereof, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx Xxxxxxxxxthat:
(ai) The Seller is a statutory trust duly formed national banking association organized and validly existing and in good standing under the banking laws of the State United States and possesses all requisite authority, power, licenses, permits and franchises to carry on its business as currently conducted by it and to execute, deliver and comply with its obligations under the terms of Delaware. this Agreement;
(ii) This Agreement has been, been duly and all the documents executed by Seller which are to be delivered to Purchaser at the Closing will be, duly validly authorized, executed and delivered by the Seller and, assuming due authorization, execution and will be delivery hereof by the Purchaser, constitutes a legal, valid and binding obligations obligation of Seller the Seller, enforceable against the Seller in accordance with their respective terms (its terms, except to the extent that as such enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other laws affecting the enforcement of creditors' rights in general, as they may be applied in the context of the insolvency of a national banking association, and by general equity principles relating to (regardless of whether such enforcement is considered in a proceeding in equity or limiting the right of contracting parties generallyat law), will be sufficient and by public policy considerations underlying the securities laws, to convey title (if they the extent that such public policy considerations limit the enforceability of the provisions of this Agreement which purport to do soprovide indemnification from liabilities under applicable securities laws;
(iii) The execution and delivery of this Agreement by the Seller and the Seller's performance and compliance with the terms of this Agreement will not (A) violate the Seller's articles of association or bylaws, (B) violate any provisions law or regulation or any administrative decree or order to which it is subject or (C) constitute a material default (or an event which, with notice or lapse of time, or both, would constitute a material default) under, or result in the breach of, any material contract, agreement or other instrument to which the Seller is a party or to by which the Property or Seller is bound;
(iv) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or other governmental agency or body, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or have consequences that would materially and adversely affect its performance hereunder;
(v) The Seller is not a party to or bound by any agreement or instrument or subject to any articles of association, bylaws or bound. Subject any other corporate restriction or any judgment, order, writ, injunction, decree, law or regulation that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the ability of the Seller to perform its obligations under this Agreement or that requires the consent of any third person to the satisfaction of Section 8(a)(i) below, no consent, waiver or approval by any third party is required in connection with the execution and delivery by Seller of this Agreement or the performance by the Seller of its obligations under this Agreement (except to the extent such consent has been obtained);
(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 or the consummation of the transactions contemplated by this Agreement except as have previously been obtained, and no bulk sale law applies to such transactions;
(vii) No litigation is pending or, to the Seller's knowledge, threatened against the Seller that would, in the Seller's good faith and reasonable judgment, prohibit its entering into this Agreement or materially and adversely affect the performance by the Seller of its obligations to be performed by Seller under this Agreement; and
(viii) Under generally accepted accounting principles ("GAAP") and for federal income tax purposes, the Seller will report the transfer of the Mortgage Loans to the Purchaser as a sale of the Mortgage Loans to the Purchaser in exchange for consideration consisting of a cash amount equal to the Purchase Price. The consideration received by the Seller upon the sale of the Mortgage Loans to the Purchaser will constitute reasonably equivalent value at least equal to the fair market value of the Mortgage Loans. The Seller will be solvent at all relevant times prior to, and will not be rendered insolvent by, the sale of the Mortgage Loans to the Purchaser. The Seller is not selling the Mortgage Loans to the Purchaser with any intent to hinder, delay or defraud any of the creditors of the Seller.
(b) Except The Seller hereby makes the representations and warranties contained in Schedule I, Schedule II or Schedule III hereto for the benefit of the Purchaser and the Trustee for the benefit of the Certificateholders as set forth on Exhibit M attached heretoof the Closing Date, Seller has not received from any governmental authority written notice, with respect to (and Seller has no actual knowledge (without any duty of inquiry or investigationsolely with respect to) of any violation of any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable to the Property, or any part thereof, that will not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change to the zoning classification or any proceedings to widen or realign any streets or highways adjacent to the Property or of any condemnation proceedingseach Mortgage Loan.
(c) To Seller’s actual knowledgeIf the Seller discovers or receives written notice of a Document Defect or a Breach pursuant to Section 2.03(a) of the Pooling and Servicing Agreement relating to a Mortgage Loan, then the Seller shall not later than 90 days from receipt of such notice (or, in the case of a Document Defect or Breach relating to a Mortgage Loan not being a "qualified mortgage" within the meaning of the REMIC Provisions (a "Qualified Mortgage"), not later than 90 days from any party to the Pooling and Servicing Agreement discovering such Document Defect or Breach provided the Seller receives such notice in a timely manner), if such Document Defect or Breach shall materially and adversely affect the value of the related Mortgage Loan or the interest of the Certificateholders therein, cure such Document Defect or Breach, as the case may be, in all material respects, which shall include payment of losses and any Additional Trust Fund Expenses associated therewith or, if such Document Defect or Breach (other than omissions solely due to a document not having been returned by the related recording office) cannot be cured within such 90-day period, (i) repurchase the operating statements, income and expense reports and all other contracts affected Mortgage Loan at the applicable Purchase Price not later than the end of such 90-day period or documents required to be delivered to Purchaser pursuant to this Agreement are true, correct and complete copies; and (ii) all contracts or documents required except with respect to the Rite Aid Mortgage Loan, substitute a Qualified Substitute Mortgage Loan for such affected Mortgage Loan not later than the end of such 90-day period (and in no event later than the second anniversary of the Closing Date) and pay the Master Servicer for deposit into the Certificate Account, any Substitution Shortfall Amount in connection therewith; provided, however, that unless the breach would cause the Mortgage Loan not to be a Qualified Mortgage, and if such Document Defect or Breach is capable of being cured but not within such 90-day period and the Seller has commenced and is diligently proceeding with the cure of such Document Defect or Breach within such 90-day period, such Seller shall have an additional 90 days to complete such cure (or, failing such cure, to repurchase or substitute the related Mortgage Loan); and provided, further, that with respect to such additional 90-day period the Seller shall have delivered an Officer's Certificate to the Trustee setting forth the reason such Document Defect or Breach is not capable of being cured within the initial 90-day period and what actions the Seller is pursuing in connection with the cure thereof and stating that the Seller anticipates that such Document Defect or Breach will be cured within the additional 90-day period; and provided; further, that no Document Defect (other than with respect to a Mortgage Note, Mortgage, title insurance policy, Ground Lease or any letter of credit) shall be considered to materially and adversely affect the interests of the Certificateholders or the value of the related Mortgage Loan unless the document with respect to which the Document Defect exists is required in connection with an imminent enforcement of the mortgagee's rights or remedies under the related Mortgage Loan, defending any claim asserted by any borrower or third party with respect to the Mortgage Loan, establishing the validity or priority of any lien or any collateral securing the Mortgage Loan or for any immediate servicing obligations. A Document Defect or Breach as to a Mortgage Loan that is cross-collateralized and cross-defaulted with one or more other Mortgage Loans (each a "Crossed Loan") that materially and adversely affects the value of such other Mortgage Loans, and is not cured as provided for above, shall require the repurchase or substitution of all such cross-collateralized and cross-defaulted Mortgage Loans which are materially and adversely affected by such Document Defect or Breach; provided, that if any Crossed Loan is not so repurchased or substituted, then such Crossed Loan shall be released from its cross-collateralization and cross-default provision so long as such Crossed Loan is held in the Trust Fund; provided, further, that the borrower under such Mortgage Loan is an intended third party beneficiary of this provision, which shall not be modified without such borrower's consent. For a period of two years from the Closing Date, so long as there remains any Mortgage File relating to a Mortgage Loan as to which there is any uncured Document Defect or Breach, the Seller shall provide the Officer's Certificate to the Trustee described above as to the reasons such Document Defect or Breach remains uncured and as to the actions being taken to pursue cure; provided, however, that, without limiting the effect of the foregoing provisions of this Section 3(c), if such Document Defect or Breach shall materially and adversely affect the value of such Mortgage Loan or the interests of the holders of the Certificates therein (subject to the last proviso in the immediately preceding sentence), the Seller shall in all cases on or prior to the second anniversary of the Closing Date either cause such Document Defect or Breach to be cured or repurchase or substitute for the affected Mortgage Loan. Notwithstanding the foregoing, the delivery of a commitment to issue a policy of lender's title insurance as described in clause 12 of Schedule I hereof in lieu of the delivery of the actual policy of lender's title insurance shall not be considered a Document Defect or Breach with respect to any Mortgage File if such actual policy of insurance is delivered to Purchaser pursuant to this Agreement are in full force and effect, without material default by any party and without any right of set-off except as disclosed in writing at the time of such deliveryTrustee or a Custodian on its behalf not later than the 90th day following the Closing Date.
(d) There is no master lease In connection with any permitted repurchase or substitution of one or more Mortgage Loans contemplated hereby, upon receipt of a certificate from a Servicing Officer certifying as to the receipt of the Property Purchase Price or Substitution Shortfall Amount(s), as applicable, in the Certificate Account, and the delivery of the Mortgage File(s) and the Servicing File(s) for the related Qualified Substitute Mortgage Loan(s) to any affiliate of the Custodian and the Master Servicer, respectively, if applicable (i) the Trustee shall execute and deliver such endorsements and assignments as are provided to it by the Master Servicer, in each case without recourse, representation or warranty, as shall be necessary to vest in the Seller, the legal and beneficial ownership of each repurchased Mortgage Loan or if such master lease existssubstituted Mortgage Loan, Seller as applicable, and (ii) the Trustee, the Custodian, the Master Servicer and the Special Servicer shall cause such master lease each tender to be terminated at Closing without Purchaser paying any termination fee. The Rent Roll attached hereto as Exhibit B is truethe Seller, correct and complete in upon delivery to each of them of a receipt executed by the Seller, all material respects as portions of the date set forth on the Rent Roll. As of the Closing, the Rent Roll delivered at the Closing will be true, correct and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default by any party and without any right of setoff, except as expressly provided by the terms of such Leases or as disclosed on the Rent Roll attached hereto. The copies of the Leases Mortgage File and other agreements with the tenants under the Leases (the “Tenants”) delivered documents pertaining to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating to the Real Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real PropertyMortgage Loan possessed by it.
(e) Exhibit J attached hereto is a true and complete schedule of all Without limiting the remedies of the Contracts (as hereinafter defined in Section 7)Purchaser, true, complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy the Certificateholders or the Trustee on behalf of the management agreement currently in effect with respect Certificateholders pursuant to this Agreement, it is acknowledged that the representations and warranties are being made for risk allocation purposes. This Section 3 provides the sole remedy available to the Property. To Seller’s actual knowledgeCertificateholders, or the Contracts are Trustee on behalf of the Certificateholders, respecting any Document Defect in full force and effect, without material default by a Mortgage File or any party and without any claims made for the right of setoff, except as expressly provided by the terms of such Contracts or as disclosed to Purchaser in writing at the time of such delivery. The Contracts constitute the entire agreements with such vendors relating to the Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excluding, however, the Leases and Permitted Encumbrances) affecting the Property which will survive the Closing.
(f) At the Closing, there will be no outstanding contracts made by Seller for the construction or repair Breach of any improvements to the Improvements which have not been fully paid for, and Seller shall cause to be discharged all mechanics’ representation or materialmen’s liens arising from any labor or materials furnished to the Improvements prior to the Closing.
(g) Except as warranty set forth in Exhibit K attached hereto, there are no pending or, or required to Seller’s actual knowledge (without any duty of inquiry or investigation), threatened legal proceedings or actions of any kind or character affecting the Property or Seller’s interest therein, including, without limitation, condemnation proceedings.
(h) Seller has not received any actual written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or the Property relating in any way be made pursuant to a Release or compliance with Environmental Laws. For purposes Section 3 of this Agreement, the phrase “Environmental Laws” shall mean any federal, state or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materials, or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 00.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (First Union Commercial Mortgage Pass THR Cer Ser 2001-C2)
Representations, Warranties and Covenants of Seller. (a) The Seller hereby represents, represents and warrants to and covenants to Purchaser that with the following matters are true and correct Purchaser, as of the execution of this Agreement and will also be true and correct as of the Closingdate hereof, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx Xxxxxxxxxthat:
(ai) The Seller is a statutory trust duly formed national banking association organized and validly existing and in good standing under the laws of the State United States of Delaware. America and possesses all requisite authority, power, licenses, permits and franchises to carry on its business as currently conducted by it and to execute, deliver and comply with its obligations under the terms of this Agreement;
(ii) This Agreement has been, been duly and all the documents executed by Seller which are to be delivered to Purchaser at the Closing will be, duly validly authorized, executed and delivered by the Seller and, assuming due authorization, execution and will be delivery hereof by the Purchaser, constitutes a legal, valid and binding obligations obligation of Seller the Seller, enforceable against the Seller in accordance with their respective terms (its terms, except to the extent that as such enforcement may be limited by applicable bankruptcy, insolvency, reorganization, receivership, moratorium and other laws affecting the enforcement of creditors' rights in general, as they may be applied in the context of the insolvency of a national banking association, and by general equity principles relating to (regardless of whether such enforcement is considered in a proceeding in equity or limiting the right of contracting parties generallyat law), will be sufficient and by public policy considerations underlying the securities laws, to convey title (if they the extent that such public policy considerations limit the enforceability of the provisions of this Agreement which purport to do soprovide indemnification from liabilities under applicable securities laws;
(iii) The execution and delivery of this Agreement by the Seller and the Seller's performance and compliance with the terms of this Agreement will not (A) violate the Seller's articles of association or bylaws, (B) violate any provisions law or regulation or any administrative decree or order to which it is subject or (C) constitute a material default (or an event which, with notice or lapse of time, or both, would constitute a material default) under, or result in the breach of, any material contract, agreement or other instrument to which the Seller is a party or to by which the Property or Seller is bound;
(iv) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or other governmental agency or body, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or have consequences that would materially and adversely affect its performance hereunder;
(v) The Seller is not a party to or bound by any agreement or instrument or subject to any articles of association, bylaws or bound. Subject any other corporate restriction or any judgment, order, writ, injunction, decree, law or regulation that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the ability of the Seller to perform its obligations under this Agreement or that requires the consent of any third person to the satisfaction of Section 8(a)(i) below, no consent, waiver or approval by any third party is required in connection with the execution and delivery by Seller of this Agreement or the performance by the Seller of its obligations under this Agreement (except to the extent such consent has been obtained);
(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 or the consummation of the transactions contemplated by this Agreement except as have previously been obtained, and no bulk sale law applies to such transactions;
(vii) No litigation is pending or, to the Seller's knowledge, threatened against the Seller that would, in the Seller's good faith and reasonable judgment, prohibit its entering into this Agreement or materially and adversely affect the performance by the Seller of its obligations to be performed by Seller under this Agreement; and
(viii) Under generally accepted accounting principles ("GAAP") and for federal income tax purposes, the Seller will report the transfer of the Mortgage Loans to the Purchaser as a sale of the Mortgage Loans to the Purchaser in exchange for consideration consisting of the Aggregate Purchase Price. The consideration received by the Seller upon the sale of the Mortgage Loans to the Purchaser will constitute at least reasonably equivalent value and fair consideration for the Mortgage Loans. The Seller will be solvent at all relevant times prior to, and will not be rendered insolvent by, the sale of the Mortgage Loans to the Purchaser. The Seller is not selling the Mortgage Loans to the Purchaser with any intent to hinder, delay or defraud any of the creditors of the Seller.
(b) Except The Seller hereby makes the representations and warranties contained in Schedule I and Schedule II hereto with respect to each Mortgage Loan, for the benefit of the Purchaser and the Trustee (for the benefit of the Certificateholders) as of the Closing Date, which representations and warranties are subject to the exceptions set forth on Exhibit M attached hereto, Seller has not received from any governmental authority written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any violation of any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable to the Property, or any part thereof, that will not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change to the zoning classification or any proceedings to widen or realign any streets or highways adjacent to the Property or of any condemnation proceedingsSchedule III.
(c) If the Seller receives written notice of a Document Defect or a Breach pursuant to Section 2.03(a) of the Pooling and Servicing Agreement relating to a Mortgage Loan, then the Seller shall, not later than 90 days from receipt of such notice (or, in the case of a Document Defect or Breach relating to a Mortgage Loan not being a "qualified mortgage" within the meaning of the REMIC Provisions (a "Qualified Mortgage"), not later than 90 days from any party to the Pooling and Servicing Agreement discovering such Document Defect or Breach, provided the Seller receives such notice in a timely manner), if such Document Defect or Breach shall materially and adversely affect the value of the applicable Mortgage Loan or the interests of the Certificateholders therein, cure such Document Defect or Breach, as the case may be, in all material respects, which shall include payment of actual losses and any Additional Trust Fund Expenses directly resulting therefrom or, if such Document Defect or Breach (other than omissions solely due to a document not having been returned by the related recording office) cannot be cured within such 90-day period, (i) repurchase the affected Mortgage Loan at the applicable Purchase Price not later than the end of such 90-day period, or (ii) substitute a Qualified Substitute Mortgage Loan for such affected Mortgage Loan not later than the end of such 90-day period (and in no event later than the second anniversary of the Closing Date) and pay the Master Servicer for deposit into the Certificate Account, any Substitution Shortfall Amount in connection therewith; provided, however, that, if Document Defect or Breach is capable of being cured but not within such 90-day period and the Seller has commenced and is diligently proceeding with the cure of such Document Defect or Breach within such 90-day period, then unless such Document Defect or Breach would cause the Mortgage Loan not to be a Qualified Mortgage, such Seller shall have an additional 90 days to complete such cure (or, failing such cure, to repurchase or substitute for the related Mortgage Loan); and provided, further, that with respect to such additional 90-day period the Seller shall have delivered an officer's certificate to the Trustee setting forth what actions the Seller is pursuing in connection with the cure thereof and stating that the Seller anticipates that such Document Defect or Breach will be cured within the additional 90-day period; and provided, further, that no Document Defect (other than with respect to a Mortgage Note, Mortgage, title insurance policy, Ground Lease or any letter of credit) shall be considered to materially and adversely affect the value of the related Mortgage Loan or the interests of the Certificateholders therein unless the document with respect to which the Document Defect exists is required in connection with an imminent enforcement of the mortgagee's rights or remedies under the related Mortgage Loan, defending any claim asserted by any borrower or third party with respect to the related Mortgage Loan, establishing the validity or priority of any lien on any collateral securing the related Mortgage Loan or for any immediate significant servicing obligations. For a period of two years from the Closing Date, so long as there remains any Mortgage File relating to a Mortgage Loan as to which there is an uncured Document Defect, the Seller shall provide the officer's certificate to the Trustee described above as to the reasons such Document Defect remains uncured and as to the actions being taken to pursue cure. Notwithstanding the foregoing, the delivery of a commitment to issue a policy of lender's title insurance as described in paragraph 12 of Schedule I hereof in lieu of the delivery of the actual policy of lender's title insurance shall not be considered a Document Defect with respect to any Mortgage Loan if such actual policy of insurance is delivered to the Trustee or a Custodian on its behalf not later than the 90th day following the Closing Date.
(d) If (i) any Mortgage Loan is required to be repurchased or substituted for in the manner described above, (ii) such Mortgage Loan is a Crossed Loan, and (iii) the applicable Document Defect or Breach does not constitute a Document Defect or Breach, as the case may be, as to any other Crossed Loan in such Crossed Group (without regard to this paragraph), then the applicable Document Defect or Breach, as the case may be, will be deemed to constitute a Document Defect or Breach, as the case may be, as to each other Crossed Loan in the Crossed Group for purposes of this paragraph, and the Seller will be required to repurchase or substitute for all of the remaining Crossed Loan(s) in the related Crossed Group as provided in the immediately preceding paragraph unless such other Crossed Loans in such Crossed Group satisfy the Crossed Loan Repurchase Criteria and satisfy all other criteria for substitution or repurchase, as applicable, of Mortgage Loans set forth herein or in the Pooling and Servicing Agreement. In the event that the remaining Crossed Loans satisfy the aforementioned criteria, the Seller may elect either to repurchase or substitute for only the affected Crossed Loan as to which the related Breach or Document Defect exists or to repurchase or substitute for all of the Crossed Loans in the related Crossed Group. The Seller shall be responsible for the cost of any Appraisal required to be obtained by the Master Servicer to determine if the Crossed Loan Repurchase Criteria have been satisfied, so long as the scope and cost of such Appraisal has been approved by the Seller (such approval not to be unreasonably withheld). To the extent that the Seller is required to purchase or substitute for a Crossed Loan hereunder in the manner prescribed above while the Purchaser continues to hold any other Crossed Loans in such Crossed Group, neither the Seller nor the Purchaser shall enforce any remedies against the other's Primary Collateral, but each is permitted to exercise remedies against the Primary Collateral securing its respective Crossed Loans, including, with respect to the Purchaser, the Primary Collateral securing the Crossed Loans still held by the Purchaser, so long as such exercise does not materially impair the ability of the other party to exercise its remedies against its Primary Collateral. If the exercise of remedies by one party would materially impair the ability of the other party to exercise its remedies with respect to the Primary Collateral securing the Crossed Loans held by such party, then the Seller and the Purchaser shall forbear from exercising such remedies until the Mortgage Loan documents evidencing and securing the relevant Crossed Loans can be modified in a manner that complies with this Agreement to remove the threat of material impairment as a result of the exercise of remedies or some other accommodation can be reached. Any reserve or other cash collateral or letters of credit securing the Crossed Loans shall be allocated between such Crossed Loans in accordance with the Mortgage Loan documents, or otherwise on a pro rata basis based upon their outstanding Stated Principal Balances. Notwithstanding the foregoing, if a Crossed Loan included in the Trust Fund is modified to terminate the related cross-collateralization and/or cross-default provisions, as a condition to such modification, the Seller shall furnish to the Trustee an Opinion of Counsel that such modification shall not cause an Adverse REMIC Event. Any expenses incurred by the Purchaser in connection with such modification or accommodation (including but not limited to recoverable attorney fees) shall be paid by the Seller’s actual knowledge.
(e) In connection with any permitted repurchase or substitution of one or more Mortgage Loans contemplated hereby, upon receipt of a certificate from a Servicing Officer certifying as to the receipt of the Purchase Price or Substitution Shortfall Amount(s), as applicable, in the Certificate Account, and the delivery of the Mortgage File(s) and the Servicing File(s) for the related Qualified Substitute Mortgage Loan(s) to the Custodian and the Master Servicer, respectively, if applicable, (i) the operating statementsTrustee shall execute and deliver such endorsements and assignments as are provided to it by the Master Servicer, income in each case without recourse, representation or warranty, as shall be necessary to vest in the Seller, the legal and expense reports and all other contracts beneficial ownership of each repurchased Mortgage Loan or documents required to be delivered to Purchaser pursuant to this Agreement are truesubstituted Mortgage Loan, correct and complete copies; and as applicable, (ii) the Trustee, the Custodian, the Master Servicer and the Special Servicer shall each tender to the Seller, upon delivery to each of them of a receipt executed by the Seller, all contracts or portions of the Mortgage File and other documents required pertaining to be delivered such Mortgage Loan possessed by it, and (iii) the Master Servicer and the Special Servicer shall release to Purchaser pursuant to this Agreement are the Seller any Escrow Payments and Reserve Funds held by it in full force and effect, without material default by any party and without any right of set-off except as disclosed in writing at the time respect of such delivery.
(d) There is no master lease of the Property to any affiliate of Seller, repurchased or if such master lease exists, Seller shall cause such master lease to be terminated at Closing without Purchaser paying any termination fee. The Rent Roll attached hereto as Exhibit B is true, correct and complete in all material respects as of the date set forth on the Rent Roll. As of the Closing, the Rent Roll delivered at the Closing will be true, correct and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default by any party and without any right of setoff, except as expressly provided by the terms of such Leases or as disclosed on the Rent Roll attached hereto. The copies of the Leases and other agreements with the tenants under the Leases (the “Tenants”) delivered to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating to the Real Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real Property.
(e) Exhibit J attached hereto is a true and complete schedule of all of the Contracts (as hereinafter defined in Section 7), true, complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy of the management agreement currently in effect with respect to the Property. To Seller’s actual knowledge, the Contracts are in full force and effect, without material default by any party and without any claims made for the right of setoff, except as expressly provided by the terms of such Contracts or as disclosed to Purchaser in writing at the time of such delivery. The Contracts constitute the entire agreements with such vendors relating to the Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excluding, however, the Leases and Permitted Encumbrances) affecting the Property which will survive the Closingdeleted Mortgage Loans.
(f) At Without limiting the Closingremedies of the Purchaser, there will be no outstanding contracts the Certificateholders or the Trustee on behalf of the Certificateholders pursuant to this Agreement, it is acknowledged that the representations and warranties are being made by Seller for risk allocation purposes. This Section 3 provides the construction sole remedy available to the Certificateholders, or repair the Trustee on behalf of the Certificateholders, respecting any Document Defect in a Mortgage File or any Breach of any improvements to the Improvements which have not been fully paid for, and Seller shall cause to be discharged all mechanics’ representation or materialmen’s liens arising from any labor or materials furnished to the Improvements prior to the Closing.
(g) Except as warranty set forth in Exhibit K attached hereto, there are no pending or, or required to Seller’s actual knowledge (without any duty of inquiry or investigation), threatened legal proceedings or actions of any kind or character affecting the Property or Seller’s interest therein, including, without limitation, condemnation proceedingsbe made pursuant to this Section 3.
(h) Seller has not received any actual written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or the Property relating in any way to a Release or compliance with Environmental Laws. For purposes of this Agreement, the phrase “Environmental Laws” shall mean any federal, state or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materials, or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 00
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Citigroup Commercial Mortgage Trust 2004-C1)
Representations, Warranties and Covenants of Seller. Seller hereby representsmakes the following representations, warrants warranties and covenants to Purchaser that the following matters are true and correct as of the execution of this Agreement and will also be true and correct as of the Closing, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx XxxxxxxxxBuyer:
(a) Seller is a statutory trust limited liability company duly formed and organized, validly existing and in good standing under the laws of its respective state of incorporation or organization, is qualified to do business in the State of Delaware. This Agreement California and has beenthe legal power and authority to own and lease its properties, to carry on its business as now being conducted and has all the documents executed by Seller which are to be delivered to Purchaser at the Closing will benecessary authority, duly authorizedpermits and approvals, executed and delivered by Seller and will be legalincluding, valid and binding obligations of Seller enforceable against Seller in accordance with their respective terms (except to the extent that such enforcement may required, any FERC authorization, to enter into this Agreement and all Ancillary Documents to which it is a party and to carry out the transactions contemplated hereby and perform and carry out all covenants and obligations on its part to be limited performed under and pursuant to this Agreement and all Ancillary Documents to which it is a party.
(b) The execution, delivery and performance by applicable bankruptcySeller of this Agreement and all Ancillary Documents to which it is a party, insolvencyincluding the consummation of the transactions contemplated thereby and the fulfillment of and compliance with the provisions of this Agreement and all Ancillary Documents to which it is a party, moratorium have been duly authorized by all necessary action, and other principles relating to or limiting the right of contracting parties generally), will be sufficient to convey title (if they purport to do so) not and will not violate require any consent or approval other than those which have already been obtained.
(c) The execution and delivery of this Agreement and all Ancillary Documents to which Seller is a party, the consummation of the transactions contemplated hereby and thereby and the fulfillment of and compliance with the provisions of this Agreement and such Ancillary Documents, do not and will not conflict with or constitute a breach of or a default under, any of the terms, conditions or provisions of any material agreement Requirement of Law, or
(d) This Agreement and all Ancillary Documents to which Seller is a party or to constitute the legal, valid and binding obligation of Seller which the Property or Seller is subject or bound. Subject to the satisfaction of Section 8(a)(i) below, no consent, waiver or approval by any third party is required thereto enforceable in connection accordance with the execution and delivery by Seller of this Agreement or the performance by Seller of the obligations to be performed by Seller under this Agreement.
(b) Except as set forth on Exhibit M attached hereto, Seller has not received from any governmental authority written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any violation of any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable to the Property, or any part thereof, that will not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change to the zoning classification or any proceedings to widen or realign any streets or highways adjacent to the Property or of any condemnation proceedings.
(c) To Seller’s actual knowledge, (i) the operating statements, income and expense reports and all other contracts or documents required to be delivered to Purchaser pursuant to this Agreement are true, correct and complete copies; and (ii) all contracts or documents required to be delivered to Purchaser pursuant to this Agreement are in full force and effect, without material default by any party and without any right of set-off except as disclosed in writing at the time of such delivery.
(d) There is no master lease of the Property to any affiliate of Seller, or if such master lease exists, Seller shall cause such master lease to be terminated at Closing without Purchaser paying any termination fee. The Rent Roll attached hereto as Exhibit B is true, correct and complete in all material respects as of the date set forth on the Rent Roll. As of the Closing, the Rent Roll delivered at the Closing will be true, correct and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default by any party and without any right of setoffits terms, except as expressly provided such enforceability may be limited by the terms of such Leases bankruptcy, insolvency, reorganization or as disclosed on the Rent Roll attached hereto. The copies of the Leases and other agreements with the tenants under the Leases (the “Tenants”) delivered to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants similar laws relating to the Real Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real Propertyenforcement of creditors’ rights generally or by general equitable principles, regardless of whether such enforceability is considered in a proceeding in equity or at law.
(e) Exhibit J attached hereto There is no pending, or to the knowledge of Seller, threatened action or proceeding affecting Seller before any Governmental Authority, which purports to affect the legality, validity or enforceability of this Agreement or any Ancillary Documents to which it is a true and complete schedule of all of the Contracts (as hereinafter defined in Section 7), true, complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy of the management agreement currently in effect with respect to the Property. To Seller’s actual knowledge, the Contracts are in full force and effect, without material default by any party and without any claims made for the right of setoff, except as expressly provided by the terms of such Contracts or as disclosed to Purchaser in writing at the time of such delivery. The Contracts constitute the entire agreements with such vendors relating to the Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excluding, however, the Leases and Permitted Encumbrances) affecting the Property which will survive the Closingparty.
(f) At the Closing, there will be no outstanding contracts made by Seller for the construction or repair is not in violation of any improvements Requirement of Law, which violations, individually or in the aggregate, would reasonably be expected to result in a material adverse effect on the Improvements business, assets, operations, condition (financial or otherwise) or prospects of Seller, or the ability of Seller to perform any of its obligations under this Agreement or any Ancillary Documents to which have not been fully paid for, and Seller shall cause to be discharged all mechanics’ or materialmen’s liens arising from any labor or materials furnished to the Improvements prior to the Closingit is a party.
(g) Except as set forth The CEQA authorizations or other Permits required to construct, maintain or operate the Facility and for the production, sale and delivery of Energy and Environmental Attributes in Exhibit K attached hereto, there are no pending or, to Seller’s actual knowledge (without any duty accordance with the requirements of inquiry or investigation), threatened legal proceedings or actions this Agreement and all Ancillary Documents and all applicable Requirements of any kind or character affecting Law will be timely obtained in the Property or Seller’s interest therein, including, without limitation, condemnation proceedingsordinary course of business.
(h) Seller has not received any actual written noticeowns or possesses, or will own or possess in a timely manner, all patents, rights to patents, trademarks, copyrights and licenses necessary for the performance by Seller has no actual knowledge (of this Agreement and all Ancillary Documents to which it is a party and the transactions contemplated thereby, without any duty conflict with the rights of inquiry or investigationothers.
(i) At all times after the Commercial Operation for each Facility set forth in Appendix D Seller shall have Site Control. Seller shall provide Buyer with prompt notice of any civilchange in the status of Seller’s Site Control.
(j) Neither Seller nor, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or the Property relating in any way to a Release or compliance with Environmental Laws. For purposes of this AgreementSeller’s knowledge, the phrase “Environmental Laws” shall mean owner of the Site has participated in or submitted any federal, state or local law, statute, ordinance, order, decree, rule or regulation and claim for receipt of funds under any common laws regarding health, safety, radioactive materials, or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 00net
Appears in 1 contract
Samples: Power Purchase Agreement
Representations, Warranties and Covenants of Seller. (a) The Seller hereby represents, represents and warrants to and covenants to Purchaser that with the following matters are true and correct Purchaser, as of the execution of this Agreement and will also be true and correct as of the Closingdate hereof, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx Xxxxxxxxxthat:
(ai) The Seller is a statutory trust duly formed and corporation validly existing under the laws of the State of Delaware. Delaware and possesses all requisite authority, power, licenses, permits and franchises to carry on its business as currently conducted by it and to execute, deliver and comply with its obligations under the terms of this Agreement.
(ii) This Agreement has been, been duly and all the documents executed by Seller which are to be delivered to Purchaser at the Closing will be, duly validly authorized, executed and delivered by the Seller and, assuming due authorization, execution and will be delivery hereof by the Purchaser, constitutes a legal, valid and binding obligations obligation of Seller the Seller, enforceable against the Seller in accordance with their respective terms (its terms, except to the extent that as such enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other laws affecting the enforcement of creditors' rights in general, and by general equity principles relating to (regardless of whether such enforcement is considered in a proceeding in equity or limiting the right of contracting parties generallyat law), will be sufficient or by public policy considerations underlying the securities laws, to convey title (if they the extent that such public policy considerations limit the enforceability of the provisions of this Agreement which purport to do soprovide indemnification from liabilities under applicable securities laws.
(iii) The execution and delivery of this Agreement by the Seller and the Seller's performance and compliance with the terms of this Agreement will not (A) violate the Seller's Certificate of Incorporation or By-Laws, (B) violate any provisions law or regulation or any administrative decree or order to which it is subject or (C) constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material contract, agreement or other instrument to which the Seller is a party or to by which the Property or Seller is bound.
(iv) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or other governmental agency or body, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or have consequences that would materially and adversely affect its performance hereunder.
(v) The Seller is not a party to or bound by any agreement or instrument or subject to any articles of incorporation, bylaws or bound. Subject any other corporate restriction or any judgment, order, writ, injunction, decree, law or regulation that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the ability of the Seller to perform its obligations under this Agreement or that requires the consent of any third person to the satisfaction of Section 8(a)(i) below, no consent, waiver or approval by any third party is required in connection with the execution and delivery by Seller of this Agreement or the performance by the Seller of the its obligations to be performed by Seller under this Agreement.
(bvi) Except as set forth on Exhibit M attached heretoNo consent, Seller has not received from any governmental authority written noticeapproval, and Seller has no actual knowledge (without any duty of inquiry authorization or investigation) order of any violation court or governmental agency or body is required for the execution, delivery and performance by the Seller of any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable to compliance by the Property, or any part thereof, that will not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change to the zoning classification or any proceedings to widen or realign any streets or highways adjacent to the Property or of any condemnation proceedings.
(c) To Seller’s actual knowledge, (i) the operating statements, income and expense reports and all other contracts or documents required to be delivered to Purchaser pursuant to Seller with this Agreement are true, correct and complete copies; and (ii) all contracts or documents required to be delivered to Purchaser pursuant to the consummation of the transactions contemplated by this Agreement are in full force and effect, without material default by any party and without any right of set-off except as disclosed in writing at the time of no bulk sale law applies to such deliverytransactions.
(d) There is no master lease of the Property to any affiliate of Seller, or if such master lease exists, Seller shall cause such master lease to be terminated at Closing without Purchaser paying any termination fee. The Rent Roll attached hereto as Exhibit B is true, correct and complete in all material respects as of the date set forth on the Rent Roll. As of the Closing, the Rent Roll delivered at the Closing will be true, correct and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default by any party and without any right of setoff, except as expressly provided by the terms of such Leases or as disclosed on the Rent Roll attached hereto. The copies of the Leases and other agreements with the tenants under the Leases (the “Tenants”) delivered to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating to the Real Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real Property.
(e) Exhibit J attached hereto is a true and complete schedule of all of the Contracts (as hereinafter defined in Section 7), true, complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy of the management agreement currently in effect with respect to the Property. To Seller’s actual knowledge, the Contracts are in full force and effect, without material default by any party and without any claims made for the right of setoff, except as expressly provided by the terms of such Contracts or as disclosed to Purchaser in writing at the time of such delivery. The Contracts constitute the entire agreements with such vendors relating to the Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excluding, however, the Leases and Permitted Encumbrances) affecting the Property which will survive the Closing.
(f) At the Closing, there will be no outstanding contracts made by Seller for the construction or repair of any improvements to the Improvements which have not been fully paid for, and Seller shall cause to be discharged all mechanics’ or materialmen’s liens arising from any labor or materials furnished to the Improvements prior to the Closing.
(g) Except as set forth in Exhibit K attached hereto, there are no pending or, to Seller’s actual knowledge (without any duty of inquiry or investigation), threatened legal proceedings or actions of any kind or character affecting the Property or Seller’s interest therein, including, without limitation, condemnation proceedings.
(h) Seller has not received any actual written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or the Property relating in any way to a Release or compliance with Environmental Laws. For purposes of this Agreement, the phrase “Environmental Laws” shall mean any federal, state or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materials, or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 00
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (First Union Commercial Mortgage Securities Inc)
Representations, Warranties and Covenants of Seller. (a) The Seller hereby represents, represents and warrants to and covenants to Purchaser that with the following matters are true and correct Purchaser, as of the execution of this Agreement and will also be true and correct as of the Closingdate hereof, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx Xxxxxxxxxthat:
(ai) The Seller is a statutory trust duly formed and organized or formed, as the case may be, validly existing and in good standing as a legal entity under the laws of the State of Delaware. Delaware and possesses all requisite authority, power, licenses, permits and franchises to carry on its business as currently conducted by it and to execute, deliver and comply with its obligations under the terms of this Agreement.
(ii) This Agreement has been, been duly and all the documents executed by Seller which are to be delivered to Purchaser at the Closing will be, duly validly authorized, executed and delivered by the Seller and, assuming due authorization, execution and will be delivery hereof by the Purchaser, constitutes a legal, valid and binding obligations obligation of Seller the Seller, enforceable against the Seller in accordance with their respective terms (its terms, except to the extent that as such enforcement may be limited by applicable (A) bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws affecting the enforcement of creditors' rights in general, and other (B) general equity principles relating to (regardless of whether such enforcement is considered in a proceeding in equity or limiting at law).
(iii) The execution and delivery of this Agreement by the right Seller and the Seller's performance and compliance with the terms of contracting parties generally), will be sufficient to convey title (if they purport to do so) and this Agreement will not (A) violate the Seller's organizational documents, (B) violate any provisions law or regulation or any administrative decree or order to which the Seller is subject or (C) constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material contract, agreement or other instrument to which the Seller is a party or to by which the Property or Seller is subject bound.
(iv) The Seller is not in default with respect to any order or bound. Subject decree of any court or any order, regulation or demand of any federal, state, municipal or other governmental agency or body, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or have consequences that would materially and adversely affect its performance hereunder.
(v) The Seller is not a party to the satisfaction of Section 8(a)(i) below, no consent, waiver or approval bound by any agreement or instrument or subject to any organizational document or any other corporate or limited liability company (as applicable) restriction or any judgment, order, writ, injunction, decree, law or regulation that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the ability of the Seller to perform its obligations under this Agreement or that requires the consent of any third party is required in connection with person to the execution and delivery by Seller of this Agreement by the Seller or the performance by the Seller of the its obligations to be performed by Seller under this Agreement.
(vi) Except for the recordation and/or filing of assignments and other transfer documents with respect to the Mortgage Loans, as contemplated by Section 2(d), no consent, approval, authorization or order of, registration or filing with, or notice to, 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; and no bulk sale law applies to such transactions.
(vii) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller that would, in the Seller's good faith and reasonable judgment, prohibit its entering into this Agreement or materially and adversely affect the performance by the Seller of its obligations under this Agreement.
(viii) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Seller are pending or contemplated. In addition, the Seller hereby further represents and warrants to, and covenants with, the Purchaser, as of the date hereof, that:
(i) Under generally accepted accounting principles ("GAAP") and for federal income tax purposes, the Seller will report the transfer of the Mortgage Loans to the Purchaser, as provided herein, as a sale of the Mortgage Loans to the Purchaser in exchange for the consideration specified in Section 1. In connection with the foregoing, the Seller shall cause all of its records to reflect such transfer as a sale (as opposed to a secured loan). The consideration received by the Seller upon the sale of the Mortgage Loans to the Purchaser will constitute at least reasonably equivalent value and fair consideration for the Mortgage Loans. The Seller will be solvent at all relevant times prior to, and will not be rendered insolvent by, the sale of the Mortgage Loans to the Purchaser. The Seller is not selling the Mortgage Loans to the Purchaser with any intent to hinder, delay or defraud any of the creditors of the Seller. After giving effect to its transfer of the Mortgage Loans to the Purchaser, as provided herein, the value of the Seller's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Seller's debts and obligations, including contingent and unliquidated debts and obligations of the Seller, and the Seller will not be left with unreasonably small assets or capital with which to engage in and conduct its business. The Mortgage Loans do not constitute all or substantially all of the assets of the Seller. The Seller does not intend to, and does not believe that it will, incur debts or obligations beyond its ability to pay such debts and obligations as they mature.
(ii) The Seller will acquire the Seller's Residual Interest Certificates for its own account and not with a view to, or sale or transfer in connection with, any distribution thereof, in whole or in part, in any manner that would violate the Securities Act or any applicable state securities laws.
(iii) The Seller understands that (A) the Seller's Residual Interest Certificates have not been and will not be registered under the Securities Act or registered or qualified under any applicable state securities laws, (B) neither the Purchaser nor any other party is obligated so to register or qualify the Seller's Residual Interest Certificates and (C) neither the Seller's Residual Interest Certificates nor any security issued in exchange therefor or in lieu thereof may be resold or transferred unless it is (1) registered pursuant to the Securities Act and registered or qualified pursuant to any applicable state securities laws or (2) sold or transferred in a transaction which is exempt from such registration and qualification and the Certificate Registrar has received the certifications and/or opinions of counsel required by the Pooling and Servicing Agreement.
(iv) The Seller understands that it may not sell or otherwise transfer the Seller's Residual Interest Certificates, any security issued in exchange therefor or in lieu thereof or any interest in the foregoing except in compliance with the provisions of Section 5.02 of the Pooling and Servicing Agreement, which provisions it has or, as of the Closing Date, will have carefully reviewed, and that the Seller's Residual Interest Certificates will bear legends that identify the transfer restrictions to which such Certificates are subject.
(v) Neither the Seller nor anyone acting on its behalf has (A) offered, transferred, pledged, sold or otherwise disposed of any Seller's Residual Interest Certificate, any interest in a Seller's Residual Interest Certificate or any other similar security to any person in any manner, (B) solicited any offer to buy or accept a transfer, pledge or other disposition of any Seller's Residual Interest Certificate, any interest in a Seller's Residual Interest Certificate or any other similar security from any person in any manner, (C) otherwise approached or negotiated with respect to any Seller's Residual Interest Certificate, any interest in a Seller's Residual Interest Certificate or any other similar security with any person in any manner, (D) made any general solicitation by means of general advertising or in any other manner, or (E) taken any other action, that (in the case of any of the acts described in clauses (A) through (E) above) would constitute a distribution of the Seller's Residual Interest Certificates under the Securities Act, would render the disposition of the Seller's Residual Interest Certificates a violation of Section 5 of the Securities Act or any state securities law or would require registration or qualification of the Seller's Residual Interest Certificates pursuant thereto. The Seller will not act, nor has it authorized nor will it authorize any person to act, in any manner set forth in the foregoing sentence with respect to the Seller's Residual Interest Certificates, any interest in the Seller's Residual Interest Certificates or any other similar security.
(vi) The Seller has been furnished with all information regarding (A) the Purchaser, (B) the Seller's Residual Interest Certificates and distributions thereon, (C) the nature, performance and servicing of the Other Loans, (D) the Pooling and Servicing Agreement and the Trust Fund, and (E) all related matters, that it has requested.
(vii) The Seller is either (a) a "qualified institutional buyer" within the meaning of Rule 144A under the Securities Act or (b) Except an "accredited investor" as defined in any of paragraphs (1), (2), (3) and (7) of Rule 501(a) under the Securities Act or an entity in which all its equity owners are "accredited investors" as defined in such paragraphs and has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Seller's Residual Interest Certificates. The Seller has sought such accounting, legal and tax advice as it has considered necessary to make an informed investment decision; and the Seller is able to bear the economic risks of such an investment and can afford a complete loss of such investment.
(viii) The Seller is not a Plan and is not directly or indirectly acquiring the Seller's Residual Interest Certificates on behalf of, as named fiduciary of, as trustee of or with assets of a Plan.
(ix) The Seller is a United States Tax Person and is not a Disqualified Organization.
(b) The Seller hereby makes, for the benefit of the Purchaser, with respect to each Mortgage Loan, as of the Closing Date or as of such other date expressly set forth therein, each of the representations and warranties set forth on Exhibit M attached B hereto, Seller has not received from any governmental authority written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any violation of any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable to the Property, or any part thereof, that will not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change to the zoning classification or any proceedings to widen or realign any streets or highways adjacent to the Property or of any condemnation proceedings.
(c) To The Seller intends to transfer the Seller’s actual knowledge's Residual Interest Certificates to Citigroup Global Markets Inc. on or about the Closing Date; and, (i) the operating statements, income and expense reports and all other contracts or documents required to be delivered to Purchaser pursuant to this Agreement are true, correct and complete copies; and (ii) all contracts or documents required to be delivered to Purchaser pursuant to this Agreement are in full force and effect, without material default by any party and without any right of set-off except as disclosed in writing at the time of such delivery.
(d) There is no master lease of the Property to any affiliate of Seller, or if such master lease exists, Seller shall cause such master lease to be terminated at Closing without Purchaser paying any termination fee. The Rent Roll attached hereto as Exhibit B is true, correct and complete in all material respects as of the date set forth on the Rent Roll. As of the Closingconnection therewith, the Rent Roll delivered at the Closing Seller will be true, correct and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default by any party and without any right of setoff, except as expressly provided by the terms of such Leases or as disclosed on the Rent Roll attached hereto. The copies of the Leases and other agreements comply with the tenants under the Leases (the “Tenants”) delivered to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating to the Real Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real Property.
(e) Exhibit J attached hereto is a true and complete schedule of all of the Contracts (as hereinafter defined in requirements of Section 7), true, complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy 5.02 of the management agreement currently Pooling and Servicing Agreement, as in effect with respect to on the Property. To Seller’s actual knowledgeClosing Date, the Contracts are in full force and effect, without material default by any party and without any claims made for the right of setoff, except as expressly provided by the terms of such Contracts or as disclosed to Purchaser in writing at the time of such deliveryapplicable law. The Contracts constitute Seller hereby directs the entire agreements with such vendors relating Purchaser to cause the Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excluding, however, the Leases and Permitted Encumbrances) affecting the Property which will survive the Closing.
(f) At the Closing, there will be no outstanding contracts made by Seller for the construction or repair of any improvements to the Improvements which have not been fully paid for, and Seller shall cause Seller's Residual Interest Certificates to be discharged all mechanics’ or materialmen’s liens arising from any labor or materials furnished to registered in the Improvements prior to the Closingname of Citigroup Global Markets Inc. upon initial issuance.
(g) Except as set forth in Exhibit K attached hereto, there are no pending or, to Seller’s actual knowledge (without any duty of inquiry or investigation), threatened legal proceedings or actions of any kind or character affecting the Property or Seller’s interest therein, including, without limitation, condemnation proceedings.
(h) Seller has not received any actual written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or the Property relating in any way to a Release or compliance with Environmental Laws. For purposes of this Agreement, the phrase “Environmental Laws” shall mean any federal, state or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materials, or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 00
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (LB-UBS Commercial Mortgage Trust 2008-C1)
Representations, Warranties and Covenants of Seller. Seller hereby represents, represents and warrants and covenants to Purchaser that Seller will have at closing good and indefeasible fee simple title to the following Subject Property free and clear of all liens, encumbrances, covenants, restrictions, rights-of-way, easements, and any other matters affecting title to the Subject Property except for the Permitted Exceptions. Seller further covenants and agrees with Purchaser that, from the date hereof until the closing, Seller shall not sell, assign, or convey any right, title, or interest whatsoever in or to the Subject Property, or create or permit to exist any lien, security interest, easement, encumbrance, charge, or condition affecting the Subject Property without promptly discharging the same prior to closing. Seller hereby further represents and warrants to Purchaser as follows:
a. There are true and correct as no actions, suits, or proceedings pending or, to the best of Seller's knowledge, threatened against Seller or otherwise affecting any portion of the Subject Property, at law or in equity, or before or by any federal, state, municipal, or other governmental court, department, commission, board, bureau, agency, or instrumentality, domestic or foreign;
b. The execution by Seller of this Agreement Contract and will also be true and correct as the consummation by Seller of the Closing, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx Xxxxxxxxx:
(a) Seller is a statutory trust duly formed and validly existing under the laws of the State of Delaware. This Agreement has been, and all the documents executed by Seller which are to be delivered to Purchaser at the Closing will be, sale contemplated hereby have been duly authorized, executed and delivered by Seller and will be legaldo not, valid and binding obligations of Seller enforceable against Seller in accordance with their respective terms (except to and, at the extent that such enforcement may be limited by applicable bankruptcy, insolvency, moratorium and other principles relating to or limiting the right of contracting parties generally)closing date, will be sufficient to convey title (if they purport to do so) and will not violate any provisions not, result in a breach of any material agreement of the terms or provisions of, or constitute a default under any indenture, agreement, instrument, or obligation to which Seller is a party or to by which the Subject Property or Seller any portion thereof is subject or bound. , and do not, and at the closing date will not, constitute a violation of any regulation affecting the Subject to the satisfaction of Section 8(a)(i) below, no consent, waiver or approval by any third party is required in connection with the execution and delivery by Seller of this Agreement or the performance by Seller of the obligations to be performed by Seller under this Agreement.Property;
(b) Except as set forth on Exhibit M attached hereto, c. Seller has not received from any governmental authority written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) notice of any violation of any zoningordinance, buildingregulation, fire law, or health code statute of any governmental agency pertaining to the Subject Property or any other statuteportion thereof;
d. That, ordinance, rule or regulation applicable to the Property, or any part thereof, that will not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change to the zoning classification or any proceedings to widen or realign any streets or highways adjacent to the Property or of any condemnation proceedings.
(c) To Seller’s actual knowledge, (i) the operating statements, income and expense reports and all other contracts or documents required to be delivered to Purchaser pursuant to this Agreement are true, correct and complete copies; and (ii) all contracts or documents required to be delivered to Purchaser pursuant to this Agreement are in full force and effect, without material default by any party and without any right of set-off except as disclosed in writing at the time of such delivery.
(d) There is no master lease of the Property to any affiliate of Seller, or if such master lease exists, Seller shall cause such master lease to be terminated at Closing without Purchaser paying any termination fee. The Rent Roll attached hereto as Exhibit B is true, correct and complete in all material respects as of the date set forth on the Rent Roll. As of the Closing, the Rent Roll delivered at the Closing will be true, correct and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default by any party and without any right of setoff, except as expressly provided by the terms of such Leases or as disclosed on the Rent Roll attached hereto. The copies of the Leases and other agreements with the tenants under the Leases (the “Tenants”) delivered to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating to the Real Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real Property.
(e) Exhibit J attached hereto is a true and complete schedule of all of the Contracts (as hereinafter defined in Section 7), true, complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy of the management agreement currently in effect with respect to the Property. To Seller’s actual knowledge, the Contracts are in full force and effect, without material default by any party and without any claims made for the right of setoff, except as expressly provided by the terms of such Contracts or as disclosed to Purchaser in writing at the time of such delivery. The Contracts constitute the entire agreements with such vendors relating to the Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excluding, however, the Leases and Permitted Encumbrances) affecting the Property which will survive the Closing.
(f) At the Closingclosing, there will be no outstanding contracts made by Seller for the unpaid bills, claims, or liens in connection with any construction or repair of any improvements the Subject Property except for ones which will be paid in the ordinary course of business or which have been bonded around or the payment of which has otherwise been adequately provided for to the Improvements which have not been fully paid for, and Seller shall cause to be discharged all mechanics’ or materialmen’s liens arising from any labor or materials furnished to complete satisfaction of Purchaser; and
e. To the Improvements prior to the Closing.
(g) Except as set forth in Exhibit K attached heretobest of Seller's knowledge, there are has been no pending or, to Seller’s actual knowledge (without material release of any duty of inquiry pollutant or investigation), threatened legal proceedings or actions hazardous substance of any kind onto or character affecting under the Subject Property that would result in the prosecution of any claim, demand, suit, action or Seller’s interest thereinadministrative proceeding based on any environmental requirements of state, local or federal law including, without limitation, condemnation proceedings.
(h) Seller has but not received any actual written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or the Property relating in any way to a Release or compliance with Environmental Laws. For purposes of this Agreement, the phrase “Environmental Laws” shall mean any federal, state or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materials, or the environment, including, without limitationlimited to, the Comprehensive Environmental Response, Response Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, 9601 et seq. All of the foregoing representations and warranties of Seller are made by Seller both as of the date hereof and as of the date of the closing hereunder and shall survive the closing hereunder. Notwithstanding the foregoing or anything to the contrary contained herein, it is understood and agreed that the representations and warranties set forth hereinabove shall survive the closing of this Contract only for a period of one (“CERCLA”); 1) year following the Resource Conservation closing date, but not thereafter, and Recovery Act, 00Seller shall have no liability of any kind whatsoever for any breach thereof except to the extent a claim is asserted against Seller within such one (1) year period.
Appears in 1 contract
Representations, Warranties and Covenants of Seller. (a) The Seller hereby represents, represents and warrants to and covenants to Purchaser that with the following matters are true and correct Purchaser, as of the execution of this Agreement and will also be true and correct as of the Closingdate hereof, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx Xxxxxxxxxthat:
(ai) The Seller is a statutory trust duly formed corporation organized and validly existing and in good standing under the laws of the State of Delaware. New York and possesses all requisite authority, power, licenses, permits and franchises to carry on its business as currently conducted by it and to execute, deliver and comply with its obligations under the terms of this Agreement;
(ii) This Agreement has been, been duly and all the documents executed by Seller which are to be delivered to Purchaser at the Closing will be, duly validly authorized, executed and delivered by the Seller and, assuming due authorization, execution and will be delivery hereof by the Purchaser, constitutes a legal, valid and binding obligations obligation of Seller the Seller, enforceable against the Seller in accordance with their respective terms (its terms, except to the extent that as such enforcement may be limited by applicable bankruptcy, insolvency, reorganization, receivership, moratorium and other laws affecting the enforcement of creditors' rights in general and by general equity principles relating to (regardless of whether such enforcement is considered in a proceeding in equity or limiting the right of contracting parties generallyat law), will be sufficient and by public policy considerations underlying the securities laws, to convey title (if they the extent that such public policy considerations limit the enforceability of the provisions of this Agreement which purport to do soprovide indemnification from liabilities under applicable securities laws;
(iii) The execution and delivery of this Agreement by the Seller and the Seller's performance and compliance with the terms of this Agreement will not (A) violate the Seller's certificate of incorporation or bylaws, (B) violate any provisions law or regulation or any administrative decree or order to which it is subject or (C) constitute a material default (or an event which, with notice or lapse of time, or both, would constitute a material default) under, or result in the breach of, any material contract, agreement or other instrument to which the Seller is a party or to by which the Property or Seller is bound;
(iv) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or other governmental agency or body, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or have consequences that would materially and adversely affect its performance hereunder;
(v) The Seller is not a party to or bound by any agreement or instrument or subject to any certificate of incorporation, bylaws or bound. Subject any other corporate restriction or any judgment, order, writ, injunction, decree, law or regulation that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the ability of the Seller to perform its obligations under this Agreement or that requires the consent of any third person to the satisfaction of Section 8(a)(i) below, no consent, waiver or approval by any third party is required in connection with the execution and delivery by Seller of this Agreement or the performance by the Seller of the its obligations to be performed by Seller under this Agreement.Agreement (except to the extent such consent has been obtained);
(bvi) Except 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 as set forth on Exhibit M attached hereto, Seller has not received from any governmental authority written noticehave previously been obtained, and Seller has no actual knowledge bulk sale law applies to such transactions; (without any duty of inquiry or investigationvii) of any violation of any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable to the Property, or any part thereof, that will not have been corrected prior to Closing nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change to the zoning classification or any proceedings to widen or realign any streets or highways adjacent to the Property or of any condemnation proceedings.
(c) To Seller’s actual knowledge, (i) the operating statements, income and expense reports and all other contracts or documents required to be delivered to Purchaser pursuant to this Agreement are true, correct and complete copies; and (ii) all contracts or documents required to be delivered to Purchaser pursuant to this Agreement are in full force and effect, without material default by any party and without any right of set-off except as disclosed in writing at the time of such delivery.
(d) There No litigation is no master lease of the Property to any affiliate of Seller, or if such master lease exists, Seller shall cause such master lease to be terminated at Closing without Purchaser paying any termination fee. The Rent Roll attached hereto as Exhibit B is true, correct and complete in all material respects as of the date set forth on the Rent Roll. As of the Closing, the Rent Roll delivered at the Closing will be true, correct and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual knowledge, are in full force and effect, without default by any party and without any right of setoff, except as expressly provided by the terms of such Leases or as disclosed on the Rent Roll attached hereto. The copies of the Leases and other agreements with the tenants under the Leases (the “Tenants”) delivered to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating to the Real Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real Property.
(e) Exhibit J attached hereto is a true and complete schedule of all of the Contracts (as hereinafter defined in Section 7), true, complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy of the management agreement currently in effect with respect to the Property. To Seller’s actual knowledge, the Contracts are in full force and effect, without material default by any party and without any claims made for the right of setoff, except as expressly provided by the terms of such Contracts or as disclosed to Purchaser in writing at the time of such delivery. The Contracts constitute the entire agreements with such vendors relating to the Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excluding, however, the Leases and Permitted Encumbrances) affecting the Property which will survive the Closing.
(f) At the Closing, there will be no outstanding contracts made by Seller for the construction or repair of any improvements to the Improvements which have not been fully paid for, and Seller shall cause to be discharged all mechanics’ or materialmen’s liens arising from any labor or materials furnished to the Improvements prior to the Closing.
(g) Except as set forth in Exhibit K attached hereto, there are no pending or, to the Seller’s actual knowledge (without any duty of inquiry or investigation)'s knowledge, threatened legal proceedings against the Seller that would, in the Seller's good faith and reasonable judgment, prohibit its entering into this Agreement or actions materially and adversely affect the performance by the Seller of any kind or character affecting the Property or Seller’s interest therein, including, without limitation, condemnation proceedings.
(h) Seller has not received any actual written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending or threatened against Seller or the Property relating in any way to a Release or compliance with Environmental Laws. For purposes of its obligations under this Agreement, the phrase “Environmental Laws” shall mean any federal, state or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materials, or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 00and
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Citigroup Commercial Mortgage Trust 2004-C1)
Representations, Warranties and Covenants of Seller. Seller hereby Seller, with any exceptions and subject to any disclosures which may be contained herein, in exhibits hereto or in other writings referred to herein, represents, warrants and covenants to Purchaser Buyer that at the following matters are true and correct as time of the execution of this Agreement Initial and will also be true and correct as of the Closing, and all references to “Seller’s actual knowledge” shall mean the actual knowledge of Xxxxxxxxxxx X. Xxxxxx or Xxxx XxxxxxxxxFinal Closings:
(a) a. Seller is a statutory trust duly formed has the right, power, legal capacity and validly existing authority to enter into and perform its obligations under the laws of the State of Delaware. this Contract;
b. This Agreement has been, Contract and all the documents executed by Seller which are to be delivered to Purchaser or executed at the Closing Initial and Final Closings have been, or will be, duly authorized, executed and delivered by Seller and are, or will be legalbe, the lawful, valid and legally binding obligations obligation of Seller enforceable against Seller in accordance with their respective terms (except to the extent that such enforcement may be limited terms. The execution, delivery and consummation of this Contract are not prohibited by applicable bankruptcy, insolvency, moratorium and other principles relating to do not violate or limiting the right conflict with any provision of contracting parties generally), will be sufficient to convey title (if they purport to do so) and will not violate any provisions result in a default under, a termination of, an acceleration of, or breach of: (i) to the best of Seller's knowledge any material contract, agreement or other instrument to which Seller is a party party; (ii) to the best of Seller's knowledge any regulation, order, decree or judgment of any arbitration panel, court or governmental agency, including any Environmental Protection Agency rules or regulations pertaining to toxic waste or hazardous materials; and (iii) to the best of Seller's knowledge any other restriction of any kind to which the Property or Seller is subject or bound. Subject to the satisfaction of Section 8(a)(i) below, no consent, waiver or approval by any third party is required in connection with the execution and delivery by Seller of this Agreement or the performance by Seller of the obligations to be performed by Seller under this Agreementsubject.
(b) Except as set forth on Exhibit M attached heretoc. Seller has, Seller has not received from any governmental authority written noticeor will have at the Initial Closing, good and Seller has no actual knowledge (without any duty of inquiry or investigation) of any violation of any zoning, building, fire or health code or any other statute, ordinance, rule or regulation applicable marketable equitable title to the Property, free and clear of all deeds of trust and mortgages; and free and clear of all liens, security agreements, financing statements, conditional sale or title retention agreements, charges and encumbrances of every kind, nature or description, except for those disclosed in the Title Binder and Accepted by Buyer as Permitted Encumbrances.
d. At the Final Closing, Seller shall convey by general warranty deed to Buyer good and marketable fee simple absolute title to the property owned in fee, free of all liens and encumbrances except the Permitted Encumbrances. Seller agrees that Seller will not suffer, permit or cause any additional debt or encumbrance to attach to the property, and will not modify any provisions of any existing deed of trust or mortgage without the prior consent of Buyer.
e. No material, adverse change shall have occurred in the condition of the property, nor shall Buyer or Seller have made any material change in, or performed or failed to perform any act which would render any of the representations or warranties in this paragraph untrue or inaccurate or incomplete between the execution hereof and the Final Closing.
f. Except as may be incidental to the operation of an automobile dealership and associated vehicle repair and maintenance facilities:
i. Seller has not to the best of its knowledge, engaged in or permitted any operations or activities upon, or any part use or occupancy of the property, or any portion thereof, that will not have been corrected prior to Closing for the purpose of or in any way involving the handling, manufacture, treatment, storage, use, generation, release, discharge, refining, dumping or disposal of any "Hazardous Materials" (whether legal or illegal, accidental or intentional) on, under, in or about the property, or transported any "Hazardous Materials" to, from or across the Property, nor, to Seller’s actual knowledge, has it received any written notice from any governmental authority regarding any change to the zoning classification or any proceedings to widen or realign any streets or highways adjacent to the Property or of any condemnation proceedings.
(c) To Seller’s actual knowledge, (i) the operating statements, income and expense reports and all other contracts or documents required to be delivered to Purchaser pursuant to this Agreement are true, correct and complete copies; and (ii) all contracts or documents required to be delivered to Purchaser pursuant to this Agreement are in full force and effect, without material default by any party and without any right of set-off except as disclosed in writing at the time of such delivery.
(d) There is no master lease of the Property to any affiliate best of Seller, or if such master lease exists, Seller shall cause such master lease to be terminated at Closing without Purchaser paying any termination fee. The Rent Roll attached hereto as Exhibit B is true, correct and complete in all material respects as of the date set forth on the Rent Roll. As of the Closing, the Rent Roll delivered at the Closing will be true, correct and complete. The copies of the Leases delivered to Purchaser are true, correct and complete copies and, to Seller’s actual 's knowledge, are any "Hazardous Materials" presently constructed, deposited, stored, or otherwise located on, under, in full force and effect, without default by any party and without any right of setoff, except as expressly provided by the terms of such Leases or as disclosed on the Rent Roll attached hereto. The copies of the Leases and other agreements with the tenants under the Leases (the “Tenants”) delivered to Purchaser pursuant to this Agreement constitute the entire agreements with such Tenants relating to the Real Property, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements delivered to Purchaser, and there are no other leases or tenancy agreements affecting the Real Property.
(e) Exhibit J attached hereto is a true and complete schedule of all of the Contracts (as hereinafter defined in Section 7), true, complete and correct copies of which have been delivered to Purchaser for Purchaser’s approval within ten (10) business days hereof. Exhibit J-1 attached hereto is a true and correct copy of the management agreement currently in effect with respect to the Property. To Seller’s actual knowledge, the Contracts are in full force and effect, without material default by any party and without any claims made for the right of setoff, except as expressly provided by the terms of such Contracts or as disclosed to Purchaser in writing at the time of such delivery. The Contracts constitute the entire agreements with such vendors relating to about the Property, nor, to the best of Seller's knowledge, have not been materially amended, modified or supplemented, except for such amendments, modifications and supplements as have been delivered to Purchaser, and there are no other agreements with any third parties (excluding, however, the Leases and Permitted Encumbrances) affecting "Hazardous Materials" migrated from the Property which will survive the Closing.
(f) At the Closingupon or beneath other properties, there will be no outstanding contracts made by Seller for the construction or repair of any improvements nor, to the Improvements which best of Seller's knowledge, have not been fully paid for, and Seller shall cause to be discharged all mechanics’ or materialmen’s liens arising from any labor or materials furnished to the Improvements prior to the Closing.
(g) Except as set forth in Exhibit K attached hereto, there are no pending or, to Seller’s actual knowledge (without any duty of inquiry or investigation), threatened legal proceedings or actions of any kind or character affecting the Property or Seller’s interest therein, including, without limitation, condemnation proceedings.
(h) Seller has not received any actual written notice, and Seller has no actual knowledge (without any duty of inquiry or investigation) of any civil, criminal or administrative suit, claim, hearing, violation, investigation, proceeding or demand pending "Hazardous Materials" migrated or threatened against Seller to migrate from other properties upon, about or beneath the Property relating in any way to a Release or compliance with Environmental Laws. For purposes of this Agreement, the phrase “Environmental Laws” shall mean any federal, state or local law, statute, ordinance, order, decree, rule or regulation and any common laws regarding health, safety, radioactive materials, or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 00Property.
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