Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, warrants and covenants to the Trustee, for its own benefit and the benefit of the Certificateholders, and to the Master Servicer and the Special Servicer, as of the Closing Date, that: (i) The Depositor is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware. (ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets. (iii) The Depositor has the full power and authority to enter into and consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement. (iv) This Agreement, assuming due authorization, execution and delivery by each of the other parties hereto, constitutes a valid, legal and binding obligation of the Depositor, enforceable against the Depositor in accordance with the terms hereof, subject to (A) applicable bankruptcy, insolvency, reorganization, moratorium and other laws affecting the enforcement of creditors' rights generally, and (B) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law. (v) The Depositor is not in violation of, and its execution and delivery of this Agreement and its performance and compliance with the terms of this Agreement will not constitute a violation of, any law, any order or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Depositor's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor. (vi) The transfer of the Trust Mortgage Loans to the Trustee as contemplated herein requires no regulatory approval, other than any such approvals as have been obtained, and is not subject to any bulk transfer or similar law in effect in any applicable jurisdiction. (vii) The Depositor is not transferring the Trust Mortgage Loans to the Trustee with any intent to hinder, delay or defraud its present or future creditors. (viii) The Depositor has been solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a). (ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left with unreasonably small assets or capital with which to engage in and conduct its business. (x) The Depositor 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. (xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated. (xii) No litigation is pending or, to the best of the Depositor's knowledge, threatened against the Depositor that, if determined adversely to the Depositor, would prohibit the Depositor from entering into this Agreement or that, in the Depositor's good faith and reasonable judgment, is likely to materially and adversely affect either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor. (xiii) Except for any actions that are the express responsibility of another party hereunder or under the Mortgage Loan Purchase Agreements, and further except for actions that the Depositor is expressly permitted to complete subsequent to the Closing Date, the Depositor has taken all actions required under applicable law to effectuate the transfer of the Trust Mortgage Loans by the Depositor to the Trustee. (xiv) Immediately prior to the transfer of the UBS Trust Mortgage Loans to the Trust pursuant to this Agreement (and assuming that the UBS Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Trust Mortgage Loan, free and clear of all liens, claims, encumbrances and other interests), (A) the Depositor had good and marketable title to, and was the sole owner and holder of, each UBS Trust Mortgage Loan; and (B) the Depositor has full right and authority to sell, assign and transfer the UBS Trust Mortgage Loans, exclusive of the servicing rights pertaining thereto. (b) The Depositor hereby makes to the Trustee, for the Trustee's own benefit and the benefit of the Certificateholders, with respect to each Xxxxxx Trust Mortgage Loan only, the representations and warranties shown on Schedule II hereto, as of the Closing Date or such other date specified in the particular representation and warranty, subject to the exceptions set forth on Schedule III hereto (the headings set forth in Schedule II hereto with respect to each representation and warranty being for convenience of reference only and in no way limiting, expanding or otherwise affecting the scope or subject matter thereof). Except as expressly provided in Section 2.04(a), the Depositor does not make any representations or warranties regarding the UBS Trust Mortgage Loans. (c) The representations, warranties and covenants of the Depositor set forth in or made pursuant to Section 2.04(a) and Section 2.04(b) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any breach of any of such representations, warranties and covenants, the party discovering such breach shall give prompt written notice thereof to the other parties.
Appears in 4 contracts
Samples: Pooling and Servicing Agreement (Lb-Ubs Commercial Mortgage Trust 2006-C4), Pooling and Servicing Agreement (Lb-Ubs Commercial Mortgage Trust 2006-C1), Pooling and Servicing Agreement (Lb-Ubs Commercial Mortgage Trust 2006-C1)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, represents and warrants and covenants to the TrusteeServicer, for its own benefit the Trustee and the benefit of the Certificateholders, and to the Master Servicer and the Special ServicerNIM Insurer as follows, as of the Closing Date, that:date hereof
(i) The Depositor is duly organized and is validly existing as a corporation duly organized, validly existing and in good standing under the laws of the State of DelawareDelaware and has full power and authority (corporate and other) 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 and the Sale Agreement.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full corporate power and authority to execute, deliver and perform, and to enter into and consummate all the transactions contemplated by by, this Agreement, Agreement and the Sale Agreement and has duly authorized authorized, by all necessary corporate action on its part, the execution, delivery and performance of this Agreement and the Sale Agreement, ; and has duly executed this Agreement and delivered this Agreement.
(iv) This the Sale Agreement, assuming the due authorization, execution and delivery hereof by each of the other parties hereto, constitutes a validlegal, legal valid and binding obligation of the Depositor, enforceable against the Depositor in accordance with the terms hereofits terms, subject subject, as to enforceability, to (Ai) applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally, generally and (Bii) general principles of equity, regardless of whether such enforcement is considered sought in a proceeding in equity or at law.
(viii) The Depositor is not in violation of, and its execution and delivery of this Agreement and its performance the Sale Agreement by the Depositor, the consummation of the transactions contemplated by this Agreement and the Sale Agreement, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Depositor and will not (A) result in a material breach of any term or provision of the charter or by-laws of the Depositor or (B) materially conflict with, result in a violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Depositor is a party or by which it may be bound or (C) constitute a material violation of any statute, order or regulation applicable to the Depositor of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Depositor; and the Depositor is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Depositor's ability to perform or meet any of its obligations under this Agreement.
(iv) No litigation is pending, or, to the best of the Depositor's knowledge, threatened, against the Depositor that would materially and adversely affect the execution, delivery or enforceability of this Agreement will not constitute a violation of, any law, any order and the Sale Agreement or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Depositor's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Depositor to perform its obligations under this Agreement or and the financial condition of Sale Agreement in accordance with the Depositorterms hereof.
(viv) The transfer No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Depositor of, or compliance by the Depositor with, this Agreement and the Sale Agreement or the consummation of the Trust Mortgage Loans to the Trustee as transactions contemplated herein requires no regulatory hereby, or if any such consent, approval, other than any such approvals as have been obtainedauthorization or order is required, and is not subject to any bulk transfer or similar law in effect in any applicable jurisdiction.
(vii) the Depositor has obtained the same. The Depositor is not transferring the Trust Mortgage Loans hereby represents and warrants to the Trustee with any intent respect to hinder, delay or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left with unreasonably small assets or capital with which to engage in and conduct its business.
(x) The Depositor 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.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xii) No litigation is pending or, to the best of the Depositor's knowledge, threatened against the Depositor that, if determined adversely to the Depositor, would prohibit the Depositor from entering into this Agreement or that, in the Depositor's good faith and reasonable judgment, is likely to materially and adversely affect either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(xiii) Except for any actions that are the express responsibility of another party hereunder or under the each Mortgage Loan Purchase Agreements, and further except for actions that the Depositor is expressly permitted to complete subsequent to as of the Closing Date, the Depositor has taken all actions required under applicable law to effectuate and following the transfer of the Trust Mortgage Loans by the Depositor to the Trustee.
(xiv) Immediately prior to the transfer of the UBS Trust Mortgage Loans to it by the Trust pursuant to this Agreement (and assuming that the UBS Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Trust Mortgage LoanSeller, free and clear of all liens, claims, encumbrances and other interests), (A) the Depositor had good title to the Mortgage Loans and marketable title tothe Mortgage Notes were subject to no offsets, and was the sole owner and holder ofclaims, each UBS Trust Mortgage Loan; and (B) the Depositor has full right and authority to sellliens, assign and transfer the UBS Trust Mortgage Loansmortgage, exclusive of the servicing rights pertaining theretopledge, charge, security interest, defenses or counterclaims.
(b) The Depositor hereby makes To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of a representation or warranty of the Seller under the Sale Agreement, the only right or remedy of the Trustee, for the NIM Insurer or of any Certificateholder shall be the Trustee's own benefit and right to enforce the benefit obligations of the Certificateholders, Seller under any applicable representation or warranty made by it. The Trustee acknowledges that the Depositor shall have no obligation or liability with respect to each Xxxxxx Trust Mortgage Loan only, the representations and warranties shown on Schedule II hereto, as any breach of the Closing Date any representation or such other date specified in the particular representation and warranty, subject warranty with respect to the exceptions set forth on Schedule III hereto Mortgage Loans (the headings except as set forth in Schedule II hereto with respect to each representation and warranty being for convenience of reference only and in no way limiting, expanding or otherwise affecting the scope or subject matter thereofSection 2.03(a)(v). Except as expressly provided in Section 2.04(a), the Depositor does not make ) under any representations or warranties regarding the UBS Trust Mortgage Loanscircumstances.
(c) The representations, warranties and covenants of the Depositor set forth in or made pursuant to Section 2.04(a) and Section 2.04(b) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any the Depositor, the Servicer, the NIM Insurer, or the Trustee of a breach of any of such representationsrepresentations and warranties set forth in the Sale Agreement that adversely and materially affects the value of the related Mortgage Loan, warranties and covenantsprepayment charges or the interests of the Certificateholders, the party discovering such breach shall give prompt written notice thereof to the other parties. Within 90 days of the discovery of a breach of any representation or warranty given to the Trustee by the Depositor, the Seller and assigned to the Trustee, the Depositor, or the Seller shall either (a) cure such breach in all material respects, (b) repurchase such Mortgage Loan or any property acquired in respect thereof from the Trustee at the Purchase Price or (c) within the two year period following the Closing Date, substitute a Replacement Mortgage Loan for the affected Mortgage Loan. In the event of discovery of a breach of any representation and warranty of the Seller or the Depositor, the Trustee shall enforce its rights under the Sale Agreement or thereunder for the benefit of Certificateholders and the NIM Insurer. If a breach of the representations and warranties set forth in the Sale Agreement hereof exists solely due to the unenforceability of a prepayment charge, the Trustee shall notify the NIM Insurer thereof and not seek to enforce the repurchase remedy provided for herein unless directed in writing to do so by the NIM Insurer. In the event of a breach of the representations and warranties with respect to the Mortgage Loans set forth in a Sale Agreement, the Trustee shall at the request of the NIM Insurer enforce the right of the Trust Fund and the NIM Insurer to be indemnified for such breach of representation and warranty. In the event that such breach relates solely to the unenforceability of a prepayment charge, amounts received in respect of such indemnity up to the amount of such prepayment charge shall be distributed pursuant to Section 4.04(b)(i)(B). As provided in the Sale Agreement, if the Seller substitutes for a Mortgage Loan for which there is a breach of any representations and warranties which adversely and materially affects the value of such Mortgage Loan and such substitute mortgage loan is not a Replacement Mortgage Loan, under the terms of the Sale Agreement, the Seller will, in exchange for such substitute Mortgage Loan, (i) provide the applicable Purchase Price for the affected Mortgage Loan or (ii) within two years of the Closing Date, substitute such affected Mortgage Loan with a Replacement Mortgage Loan. Any such substitution shall not be effected prior to the additional delivery to the Trustee of a Request for Release substantially in the form of Exhibit I and shall not be effected unless it is within two years of the Startup Day. As provided in the Sale Agreement, the Seller indemnifies and holds the Trust Fund, the Trustee, the Depositor, the NIM Insurer, the Servicer and each Certificateholder harmless against any and all taxes, claims, losses, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, fees and expenses that the Trust Fund, the Trustee, the Depositor, the NIM Insurer, the Servicer and any Certificateholder may sustain in connection with any actions of the Seller relating to a repurchase of a Mortgage Loan other than in compliance with the terms of this Section 2.03 and the Sale Agreement, to the extent that any such action causes (i) any federal or state tax to be imposed on the Trust Fund or any REMIC provided for herein, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup day" under Section 860G(d)(1) of the Code, or (ii) any REMIC created hereunder to fail to qualify as a REMIC at any time that any Certificate is outstanding. With respect to any Mortgage Loan repurchased by the Depositor pursuant to this Agreement or by the Seller pursuant to the Sale Agreement, the principal portion of the funds received by the Servicer in respect of such repurchase of a Mortgage Loan will be considered a Principal Prepayment and shall be deposited by the Servicer in the Certificate Account pursuant to Section 3.05. The Trustee, upon receipt of the full amount of the Purchase Price for a Deleted Mortgage Loan, or upon receipt of the Mortgage File for a Replacement Mortgage Loan substituted for a Deleted Mortgage Loan, shall release or cause to be released and reassign to the Depositor or the Seller, as applicable, the related Mortgage File for the Deleted Mortgage Loan and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation or warranty, as shall be necessary to vest in such party or its designee or assignee title to any Deleted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Trustee, and the Trustee shall not have any further responsibility with respect to the Mortgage File relating to such Deleted Mortgage Loan. With respect to each Replacement Mortgage Loan to be delivered to the Trustee pursuant to the terms of this Article II in exchange for a Deleted Mortgage Loan: (i) the Depositor or the Seller, as applicable, must deliver to the Trustee the Mortgage File for the Replacement Mortgage Loan containing the documents set forth in Section 2.01 along with a written certification certifying as to the delivery of such Mortgage File and containing the granting language set forth in the first sentence of Section 2.01; and (ii) the Depositor will be deemed to have made, with respect to such Replacement Mortgage Loan, each of the representations and warranties made by it with respect to the related Deleted Mortgage Loan. The Trustee shall review the Mortgage File with respect to each Replacement Mortgage Loan and certify to the NIM Insurer and the Depositor that all documents required by Section 2.01 have been executed and received. For any month in which the Seller substitutes one or more Replacement Mortgage Loans for one or more Deleted Mortgage Loans, the Seller will determine the amount (if any) by which the aggregate principal balance of all such Replacement Mortgage Loans as of the date of substitution and the aggregate prepayment penalties with respect to such Replacement Mortgage Loans is less than the aggregate Stated Principal Balance (after application of the principal portion of the Scheduled Payment due in the month of substitution) and aggregate prepayment penalties of all such Deleted Mortgage Loans. An amount equal to the aggregate of the deficiencies described in the preceding sentence (such amount, the "Substitution Adjustment Amount") shall be delivered by the Seller to the Servicer for deposit into the Collection Account on the Determination Date for the Distribution Date relating to the Prepayment Period during which the related Mortgage Loan became required to be purchased or replaced hereunder. The Seller shall give or cause to be given written notice to the Certificateholders and the NIM Insurer that such substitution has taken place, shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Replacement Mortgage Loan or Replacement Mortgage Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the NIM Insurer and the Trustee. Upon such substitution by the Seller, such Replacement Mortgage Loan or Replacement Mortgage Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and the Sale Agreement, including all applicable representations and warranties thereof included in the Sale Agreement as of the date of substitution. In addition, the Seller shall obtain at its own expense and deliver to the Trustee and the NIM Insurer an Opinion of Counsel addressed to the Trustee and the NIM Insurer to the effect that such substitution will not (a) cause any federal tax to be imposed on the Trust Fund or any REMIC provided for herein, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup day" under Section 860G(d)(1) of the Code or (b) adversely affect the status of any REMIC provided for herein as a REMIC. If any such Opinion of Counsel can not be delivered, then such substitution may only be effected at such time as the required Opinion of Counsel can be given.
(d) It is understood and agreed that the representations, warranties and indemnification (i) set forth in this Section 2.03 and (ii) of the Seller and the Depositor set forth in the Sale Agreement and assigned to the Trustee by the Depositor hereunder shall each survive delivery of the Mortgage Files and the Assignment of Mortgage of each Mortgage Loan to the Trustee and shall continue throughout the term of this Agreement.
Appears in 4 contracts
Samples: Pooling and Servicing Agreement (Specialty Underwriting & Residential Finance Trust, Series 2004-Bc4), Pooling and Servicing Agreement (Merrill Lynch Mortgage Asset Back Certs Ser 2004-Bc2), Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Inc)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, represents and warrants and covenants to the TrusteeServicer, for its own benefit the NIMs Insurer and the benefit of the Certificateholders, and to the Master Servicer and the Special ServicerTrustee as follows, as of the Closing Date, thatdate hereof:
(i) The Depositor is duly organized and is validly existing as a corporation duly organized, validly existing and in good standing under the laws of the State of DelawareDelaware and has full power and authority (corporate and other) 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 and the Sale Agreement.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full corporate power and authority to execute, deliver and perform, and to enter into and consummate all the transactions contemplated by by, this Agreement, Agreement and the Sale Agreement and has duly authorized authorized, by all necessary corporate action on its part, the execution, delivery and performance of this Agreement and the Sale Agreement, ; and has duly executed this Agreement and delivered this Agreement.
(iv) This the Sale Agreement, assuming the due authorization, execution and delivery hereof by each of the other parties hereto, constitutes a validlegal, legal valid and binding obligation of the Depositor, enforceable against the Depositor in accordance with the terms hereofits terms, subject subject, as to enforceability, to (Ai) applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally, generally and (Bii) general principles of equity, regardless of whether such enforcement is considered sought in a proceeding in equity or at law.
(viii) The Depositor is not in violation of, and its execution and delivery of this Agreement and its performance the Sale Agreement by the Depositor, the consummation of the transactions contemplated by this Agreement and the Sale Agreement, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Depositor and will not (A) result in a material breach of any term or provision of the charter or by-laws of the Depositor or (B) materially conflict with, result in a violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Depositor is a party or by which it may be bound or (C) constitute a material violation of any statute, order or regulation applicable to the Depositor of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Depositor; and the Depositor is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Depositor's ability to perform or meet any of its obligations under this Agreement.
(iv) No litigation is pending, or, to the best of the Depositor's knowledge, threatened, against the Depositor that would materially and adversely affect the execution, delivery or enforceability of this Agreement will not constitute a violation of, any law, any order and the Sale Agreement or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Depositor's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Depositor to perform its obligations under this Agreement or and the financial condition of Sale Agreement in accordance with the Depositorterms hereof.
(viv) The transfer No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Depositor of, or compliance by the Depositor with, this Agreement and the Sale Agreement or the consummation of the Trust Mortgage Loans to the Trustee as transactions contemplated herein requires no regulatory hereby, or if any such consent, approval, other than any such approvals as have been obtainedauthorization or order is required, and is not subject to any bulk transfer or similar law in effect in any applicable jurisdiction.
(vii) the Depositor has obtained the same. The Depositor is not transferring the Trust Mortgage Loans hereby represents and warrants to the Trustee with any intent respect to hinder, delay or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer each Mortgage Loan as of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts Closing Date and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left with unreasonably small assets or capital with which to engage in and conduct its business.
(x) The Depositor 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.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xii) No litigation is pending or, to the best of the Depositor's knowledge, threatened against the Depositor that, if determined adversely to the Depositor, would prohibit the Depositor from entering into this Agreement or that, in the Depositor's good faith and reasonable judgment, is likely to materially and adversely affect either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(xiii) Except for any actions that are the express responsibility of another party hereunder or under the Mortgage Loan Purchase Agreements, and further except for actions that the Depositor is expressly permitted to complete subsequent to the Closing Date, the Depositor has taken all actions required under applicable law to effectuate following the transfer of the Trust Mortgage Loans by the Depositor to the Trustee.
(xiv) Immediately prior to the transfer of the UBS Trust Mortgage Loans to it by the Trust pursuant to this Agreement (and assuming that the UBS Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Trust Mortgage LoanSponsor, free and clear of all liens, claims, encumbrances and other interests), (A) the Depositor had good title to the Mortgage Loans and marketable title tothe Mortgage Notes were subject to no offsets, and was the sole owner and holder ofclaims, each UBS Trust Mortgage Loan; and (B) the Depositor has full right and authority to sellliens, assign and transfer the UBS Trust Mortgage Loansmortgage, exclusive of the servicing rights pertaining theretopledge, charge, security interest, defenses or counterclaims.
(b) The Depositor hereby makes representations and warranties of the Transferor with respect to the Mortgage Loans contained in the Transfer Agreement were made as of the date of the Transfer Agreement and brought forward to the Closing Date pursuant to the Bring Down Letter. The representations and warranties of the Transferor with respect to the Mortgage Loans contained in the Bring Down Letter were made as of the Closing Date. The representations and warranties of the Sponsor with respect to the Mortgage Loans contained in the Sale Agreement were made as of the Closing Date. To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of a representation or warranty of the Transferor under the Transfer Agreement (whether or not such fact, condition or event would also constitute a breach of a representation or warranty of the Sponsor under the Sale Agreement), the only rights or remedies of the Trustee, the NIMs Insurer or of any Certificateholder shall be first, the Trustee's right to enforce the obligations of the Transferor under such applicable representation or warranty made by it and, second, only if the Transferor is unable or unwilling to fulfill its obligations to cure or repurchase such Mortgage Loan, the Trustee shall exercise its right to enforce any rights it may have against the Sponsor under the Sale Agreement with respect to such representation or warranty; provided, that in the event the Trustee shall have received a copy of any Transferor Affirmation Notice, the Trustee shall only be entitled to enforce any rights it has against the Transferor under the Transfer Agreement and shall not have any rights against the Sponsor under the Sale Agreement with respect to such representation or warranty. To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of a representation or warranty made by the Sponsor in the Sale Agreement that does not also constitute a breach of a representation or warranty of the Transferor under the Transfer Agreement, the Trustee shall use reasonable efforts to enforce any rights it may have against the Sponsor under the Sale Agreement. In furtherance of the above, the Sponsor expressly acknowledges that prior to the issuance of a Transferor Affirmation Notice, it shall be obligated and liable to the Trustee, for the Trustee's own benefit NIMs Insurer and the benefit Certificateholders for any breach of a representation or warranty made under the CertificateholdersTransfer Agreement, but only after the Transferor evidences that it is unwilling or unable to fulfill its contractual obligations under the Transfer Agreement. The Trustee acknowledges that the Depositor shall have no obligation or liability with respect to each Xxxxxx Trust Mortgage Loan only, the representations and warranties shown on Schedule II hereto, as of the Closing Date or such other date specified in the particular representation and warranty, subject to the exceptions set forth on Schedule III hereto (the headings set forth in Schedule II hereto with respect to each representation and warranty being for convenience of reference only and in no way limiting, expanding or otherwise affecting the scope or subject matter thereof). Except as expressly provided in Section 2.04(a), the Depositor does not make any representations or warranties regarding the UBS Trust Mortgage Loans.
(c) The representations, warranties and covenants of the Depositor set forth in or made pursuant to Section 2.04(a) and Section 2.04(b) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any breach of any of such representations, warranties and covenants, the party discovering such breach shall give prompt written notice thereof representation or warranty with respect to the other partiesMortgage Loans (except as set forth in Section 2.03(a)(v)) under any circumstances.
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (Mortgage Loan Asset-Backed Certificates Series 2006-5), Pooling and Servicing Agreement (OwnIt Mortgage Loan Trust Series 2006-6), Pooling and Servicing Agreement (OwnIt Mortgage Loan Trust Mortgage Loan Asset-Backed Certificates, Series 2006-7)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, represents and warrants and covenants to the TrusteeServicer, for its own benefit the NIMs Insurer and the benefit of the Certificateholders, and to the Master Servicer and the Special ServicerTrustee as follows, as of the Closing Date, thatdate hereof:
(i) The Depositor is duly organized and is validly existing as a corporation duly organized, validly existing and in good standing under the laws of the State of DelawareDelaware and has full power and authority (corporate and other) 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 and the Sale Agreement.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full corporate power and authority to execute, deliver and perform, and to enter into and consummate all the transactions contemplated by by, this Agreement, Agreement and the Sale Agreement and has duly authorized authorized, by all necessary corporate action on its part, the execution, delivery and performance of this Agreement and the Sale Agreement, ; and has duly executed this Agreement and delivered this Agreement.
(iv) This the Sale Agreement, assuming the due authorization, execution and delivery hereof by each of the other parties hereto, constitutes a validlegal, legal valid and binding obligation of the Depositor, enforceable against the Depositor in accordance with the terms hereofits terms, subject subject, as to enforceability, to (Ai) applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally, generally and (Bii) general principles of equity, regardless of whether such enforcement is considered sought in a proceeding in equity or at law.
(viii) The Depositor is not in violation of, and its execution and delivery of this Agreement and its performance the Sale Agreement by the Depositor, the consummation of the transactions contemplated by this Agreement and the Sale Agreement, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Depositor and will not (A) result in a material breach of any term or provision of the charter or by-laws of the Depositor or (B) materially conflict with, result in a violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Depositor is a party or by which it may be bound or (C) constitute a material violation of any statute, order or regulation applicable to the Depositor of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Depositor; and the Depositor is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Depositor's ability to perform or meet any of its obligations under this Agreement.
(iv) No litigation is pending, or, to the best of the Depositor's knowledge, threatened, against the Depositor that would materially and adversely affect the execution, delivery or enforceability of this Agreement will not constitute a violation of, any law, any order and the Sale Agreement or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Depositor's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Depositor to perform its obligations under this Agreement or and the financial condition of Sale Agreement in accordance with the Depositorterms hereof.
(viv) The transfer No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Depositor of, or compliance by the Depositor with, this Agreement and the Sale Agreement or the consummation of the Trust Mortgage Loans to the Trustee as transactions contemplated herein requires no regulatory hereby, or if any such consent, approval, other than any such approvals as have been obtainedauthorization or order is required, and is not subject to any bulk transfer or similar law in effect in any applicable jurisdiction.
(vii) the Depositor has obtained the same. The Depositor is not transferring the Trust Mortgage Loans hereby represents and warrants to the Trustee with any intent respect to hinder, delay or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer each Mortgage Loan as of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts Closing Date and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left with unreasonably small assets or capital with which to engage in and conduct its business.
(x) The Depositor 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.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xii) No litigation is pending or, to the best of the Depositor's knowledge, threatened against the Depositor that, if determined adversely to the Depositor, would prohibit the Depositor from entering into this Agreement or that, in the Depositor's good faith and reasonable judgment, is likely to materially and adversely affect either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(xiii) Except for any actions that are the express responsibility of another party hereunder or under the Mortgage Loan Purchase Agreements, and further except for actions that the Depositor is expressly permitted to complete subsequent to the Closing Date, the Depositor has taken all actions required under applicable law to effectuate following the transfer of the Trust Mortgage Loans by the Depositor to the Trustee.
(xiv) Immediately prior to the transfer of the UBS Trust Mortgage Loans to it by the Trust pursuant to this Agreement (and assuming that the UBS Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Trust Mortgage LoanSponsor, free and clear of all liens, claims, encumbrances and other interests), (A) the Depositor had good title to the Mortgage Loans and marketable title tothe Mortgage Notes were subject to no offsets, and was the sole owner and holder ofclaims, each UBS Trust Mortgage Loan; and (B) the Depositor has full right and authority to sellliens, assign and transfer the UBS Trust Mortgage Loansmortgage, exclusive of the servicing rights pertaining theretopledge, charge, security interest, defenses or counterclaims.
(b) The Depositor hereby makes representations and warranties of the Transferor with respect to the Mortgage Loans contained in the Transfer Agreement were made as of the date of the Transfer Agreement and brought forward to the Closing Date pursuant to the Bring Down Letter. The representations and warranties of the Transferor with respect to the Mortgage Loans contained in the Bring Down Letter were made as of the Closing Date. The representations and warranties of the Sponsor with respect to the Mortgage Loans contained in the Sale Agreement were made as of the Closing Date. To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of a representation or warranty of the Transferor under the Transfer Agreement (whether or not such fact, condition or event would also constitute a breach of a representation or warranty of the Sponsor under the Sale Agreement), the only rights or remedies of the Trustee, the NIMs Insurer or of any Certificateholder shall be first, the Trustee's right to enforce the obligations of the Transferor under such applicable representation or warranty made by it and, second, only if the Transferor is unable or unwilling to fulfill its obligations to cure or repurchase such Mortgage Loan, the Trustee shall exercise its right to enforce any rights it may have against the Sponsor under the Sale Agreement with respect to such representation or warranty; provided, that in the event the Trustee shall have received a copy of any Transferor Affirmation Notice, the Trustee shall only be entitled to enforce any rights it has against the Transferor under the Transfer Agreement and shall not have any rights against the Sponsor under the Sale Agreement with respect to such representation or warranty. To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of a representation or warranty made by the Sponsor in the Sale Agreement that does not also constitute a breach of a representation or warranty of the Transferor under the Transfer Agreement, the Trustee shall enforce any rights it may have against the Sponsor under the Sale Agreement. In furtherance of the above, the Sponsor expressly acknowledges that prior to the issuance of a Transferor Affirmation Notice, it shall be obligated and liable to the Trustee, for the Trustee's own benefit NIMs Insurer and the benefit Certificateholders for any breach of a representation or warranty made under the CertificateholdersTransfer Agreement, but only after the Transferor evidences that it is unwilling or unable to fulfill its contractual obligations under the Transfer Agreement. The Trustee acknowledges that the Depositor shall have no obligation or liability with respect to each Xxxxxx Trust Mortgage Loan only, the representations and warranties shown on Schedule II hereto, as of the Closing Date or such other date specified in the particular representation and warranty, subject to the exceptions set forth on Schedule III hereto (the headings set forth in Schedule II hereto with respect to each representation and warranty being for convenience of reference only and in no way limiting, expanding or otherwise affecting the scope or subject matter thereof). Except as expressly provided in Section 2.04(a), the Depositor does not make any representations or warranties regarding the UBS Trust Mortgage Loans.
(c) The representations, warranties and covenants of the Depositor set forth in or made pursuant to Section 2.04(a) and Section 2.04(b) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any breach of any of such representations, warranties and covenants, the party discovering such breach shall give prompt written notice thereof representation or warranty with respect to the other partiesMortgage Loans (except as set forth in Section 2.03(a)(v)) under any circumstances.
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (Ownit Mortgage Loan Trust, Series 2006-2), Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Inc), Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Inc)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, represents and warrants and covenants to the Trustee, for its own benefit and the benefit of the Certificateholders, and to the Master Servicer and the Special ServicerTrustee as follows, as of the Closing Date, that:date hereof
(i) The Depositor is duly organized and is validly existing as a corporation duly organized, validly existing and in good standing under the laws of the State of DelawareDelaware and has full power and authority (corporate and other) 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 and the Sale Agreement.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full corporate power and authority to execute, deliver and perform, and to enter into and consummate all the transactions contemplated by by, this Agreement, Agreement and the Sale Agreement and has duly authorized authorized, by all necessary corporate action on its part, the execution, delivery and performance of this Agreement and the Sale Agreement, ; and has duly executed this Agreement and delivered this Agreement.
(iv) This the Sale Agreement, assuming the due authorization, execution and delivery hereof by each of the other parties hereto, constitutes a validlegal, legal valid and binding obligation of the Depositor, enforceable against the Depositor in accordance with the terms hereofits terms, subject subject, as to enforceability, to (Ai) applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally, generally and (Bii) general principles of equity, regardless of whether such enforcement is considered sought in a proceeding in equity or at law.
(viii) The Depositor is not in violation of, and its execution and delivery of this Agreement and its performance the Sale Agreement by the Depositor, the consummation of the transactions contemplated by this Agreement and the Sale Agreement, and the fulfillment of or compliance with the terms hereof are in the ordinary course of this Agreement business of the Depositor and will not (A) result in a material breach of any term or provision of the charter or by-laws of the Depositor or (B) materially conflict with, result in a violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Depositor is a party or by which it may be bound or (C) constitute a material violation ofof any statute, any law, any order or decree regulation applicable to the Depositor of any court court, regulatory body, administrative agency or arbitergovernmental body having jurisdiction over the Depositor; and the Depositor is not in breach or violation of any material indenture or other material agreement or instrument, or any order, regulation or demand in violation of any federalstatute, state order or local regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or regulatory authority, which violation, in violation may materially impair the Depositor's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Depositor to perform or meet any of its obligations under this Agreement or the financial condition of the DepositorAgreement.
(vi) The transfer of the Trust Mortgage Loans to the Trustee as contemplated herein requires no regulatory approval, other than any such approvals as have been obtained, and is not subject to any bulk transfer or similar law in effect in any applicable jurisdiction.
(vii) The Depositor is not transferring the Trust Mortgage Loans to the Trustee with any intent to hinder, delay or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left with unreasonably small assets or capital with which to engage in and conduct its business.
(x) The Depositor 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.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xiiiv) No litigation is pending or, to the best of the Depositor's knowledge, threatened threatened, against the Depositor that, if determined adversely to the Depositor, that would prohibit the Depositor from entering into this Agreement or that, in the Depositor's good faith and reasonable judgment, is likely to materially and adversely affect either the execution, delivery or enforceability of this Agreement and the Sale Agreement or the ability of the Depositor to perform its obligations under this Agreement or and the financial condition of Sale Agreement in accordance with the Depositorterms hereof.
(xiiiv) 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 Depositor of, or compliance by the Depositor with, this Agreement and the Sale Agreement or the consummation of the transactions contemplated hereby, or if any actions that are such consent, approval, authorization or order is required, the express responsibility of another party hereunder or under Depositor has obtained the same. The Depositor hereby represents and warrants to the Trustee with respect to each Mortgage Loan Purchase Agreements, and further except for actions that the Depositor is expressly permitted to complete subsequent to as of the Closing Date, the Depositor has taken all actions required under applicable law to effectuate and following the transfer of the Trust Mortgage Loans by the Depositor to the Trustee.
(xiv) Immediately prior to the transfer of the UBS Trust Mortgage Loans to it by the Trust pursuant to this Agreement (and assuming that the UBS Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Trust Mortgage LoanSponsor, free and clear of all liens, claims, encumbrances and other interests), (A) the Depositor had good title to the Mortgage Loans and marketable title tothe Mortgage Notes were subject to no offsets, and was the sole owner and holder ofclaims, each UBS Trust liens, mortgage, pledge, charge, security interest, defenses or counterclaims.
(vi) Each Mortgage Loan; and (B) the Depositor Loan in Group One has full right and authority to sell, assign and transfer the UBS Trust Mortgage Loans, exclusive a Stated Principal Balance as of the servicing rights pertaining theretoCut-off Date that complies with the loan limitations of Xxxxxx Xxx and Xxxxxxx Mac as in effect on the Cut-off Date.
(b) The Depositor hereby makes To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of a representation or warranty of the TrusteeSponsor under the Sale Agreement, for the only right or remedy of the Trustee or of any Certificateholder shall be the Trustee's own benefit and right to enforce the benefit obligations of the Certificateholders, Sponsor under any applicable representation or warranty made by it. The Trustee acknowledges that the Depositor shall have no obligation or liability with respect to each Xxxxxx Trust Mortgage Loan only, the representations and warranties shown on Schedule II hereto, as any breach of the Closing Date any representation or such other date specified in the particular representation and warranty, subject warranty with respect to the exceptions set forth on Schedule III hereto Mortgage Loans (the headings except as set forth in Schedule II hereto with respect to each representation and warranty being for convenience of reference only and in no way limiting, expanding or otherwise affecting the scope or subject matter thereofSection 2.03(a)(v). Except as expressly provided in Section 2.04(a), the Depositor does not make ) under any representations or warranties regarding the UBS Trust Mortgage Loanscircumstances.
(c) The representations, warranties and covenants of the Depositor set forth in or made pursuant to Section 2.04(a) and Section 2.04(b) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any the Depositor, the Servicer, or the Trustee of a breach of any of such representationsrepresentations and warranties set forth in the Sale Agreement that adversely and materially affects the value of the related Mortgage Loan, warranties and covenantsprepayment charges or the interests of the Certificateholders, the party discovering such breach shall give prompt written notice thereof to the other parties. Within ninety (90) days of the discovery of a breach of any representation or warranty given to the Trustee by the Depositor, the Sponsor and assigned by the Depositor to the Trustee, the Depositor, or the Sponsor shall either (a) cure such breach in all material respects, (b) repurchase such Mortgage Loan or any property acquired in respect thereof from the Trustee at the Purchase Price or (c) within the two year period following the Closing Date, substitute a Replacement Mortgage Loan for the affected Mortgage Loan. In the event of discovery of a breach of any representation and warranty of the Sponsor or the Depositor, the Trustee shall enforce its rights under the Sale Agreement or thereunder for the benefit of Certificateholders. In the event of a breach of the representations and warranties with respect to the Mortgage Loans set forth in a Sale Agreement, the Trustee shall enforce the right of the Issuing Entity to be indemnified for such breach of representation and warranty. In the event that such breach relates solely to the unenforceability of a prepayment charge, amounts received in respect of such indemnity up to the amount of such prepayment charge shall be distributed pursuant to Section 4.04(b)(i)(B). As provided in the Sale Agreement, if the Sponsor substitutes for a Mortgage Loan for which there is a breach of any representations and warranties which adversely and materially affects the value of such Mortgage Loan and such substitute mortgage loan is not a Replacement Mortgage Loan, under the terms of the Sale Agreement, the Sponsor will, in exchange for such substitute Mortgage Loan, (i) provide the applicable Purchase Price for the affected Mortgage Loan or (ii) within two years of the Closing Date, substitute such affected Mortgage Loan with a Replacement Mortgage Loan. Any such substitution shall not be effected prior to the additional delivery to the Trustee of a Request for Release substantially in the form of Exhibit I and shall not be effected unless it is within two years of the Startup Day. As provided in the Sale Agreement, the Sponsor indemnifies and holds the Issuing Entity, the Trustee, the Depositor, the Servicer and each Certificateholder harmless against any and all taxes, claims, losses, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, fees and expenses that the Issuing Entity, the Trustee, the Depositor, the Servicer and any Certificateholder may sustain in connection with any actions of the Sponsor relating to a repurchase of a Mortgage Loan other than in compliance with the terms of this Section 2.03 and the Sale Agreement, to the extent that any such action causes (i) any federal or state tax to be imposed on the Issuing Entity or any REMIC provided for herein, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup day" under Section 860G(d)(1) of the Code, or (ii) any REMIC created hereunder to fail to qualify as a REMIC at any time that any Certificate is outstanding. With respect to any Mortgage Loan repurchased by the Depositor pursuant to this Agreement or by the Sponsor pursuant to the Sale Agreement, the principal portion of the funds received by the Servicer in respect of such repurchase of a Mortgage Loan will be considered a Principal Prepayment and shall be deposited by the Servicer in the Certificate Account pursuant to Section 3.05. The Trustee, upon receipt of the full amount of the Purchase Price for a Deleted Mortgage Loan, or upon receipt of the Mortgage File for a Replacement Mortgage Loan substituted for a Deleted Mortgage Loan, shall release or cause to be released and reassign to the Depositor or the Sponsor, as applicable, the related Mortgage File for the Deleted Mortgage Loan and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation or warranty, as shall be necessary to vest in such party or its designee or assignee title to any Deleted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Trustee, and the Trustee shall not have any further responsibility with respect to the Mortgage File relating to such Deleted Mortgage Loan. With respect to each Replacement Mortgage Loan to be delivered to the Trustee pursuant to the terms of this Article II in exchange for a Deleted Mortgage Loan: (i) the Depositor or the Sponsor, as applicable, must deliver to the Trustee the Mortgage File for the Replacement Mortgage Loan containing the documents set forth in Section 2.01 along with a written certification certifying as to the delivery of such Mortgage File and containing the granting language set forth in the first sentence of Section 2.01; and (ii) the Depositor will be deemed to have made, with respect to such Replacement Mortgage Loan, each of the representations and warranties made by it with respect to the related Deleted Mortgage Loan. The Trustee shall review the Mortgage File with respect to each Replacement Mortgage Loan and certify to the Depositor that all documents required by Section 2.01 have been executed and received. For any month in which the Sponsor substitutes one or more Replacement Mortgage Loans for one or more Deleted Mortgage Loans, the Sponsor will determine the amount (if any) by which the aggregate principal balance of all such Replacement Mortgage Loans as of the date of substitution and the aggregate prepayment charges with respect to such Replacement Mortgage Loans is less than the aggregate Stated Principal Balance (after application of the principal portion of the Scheduled Payment due in the month of substitution) and aggregate prepayment charges of all such Deleted Mortgage Loans. An amount equal to the aggregate of the deficiencies described in the preceding sentence (such amount, the "Substitution Adjustment Amount") shall be delivered by the Sponsor to the Servicer for deposit into the Collection Account on the Determination Date for the Distribution Date relating to the Prepayment Period during which the related Mortgage Loan became required to be purchased or replaced hereunder. The Sponsor shall give or cause to be given written notice to the Certificateholders that such substitution has taken place, shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Replacement Mortgage Loan or Replacement Mortgage Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the Trustee. Upon such substitution by the Sponsor, such Replacement Mortgage Loan or Replacement Mortgage Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and the Sale Agreement, including all applicable representations and warranties thereof included in the Sale Agreement as of the date of substitution. In addition, the Sponsor shall obtain at its own expense and deliver to the Trustee an Opinion of Counsel addressed to the Trustee to the effect that such substitution will not (a) cause any federal tax to be imposed on the Issuing Entity or any REMIC provided for herein, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup day" under Section 860G(d)(1) of the Code or (b) adversely affect the status of any REMIC provided for herein as a REMIC. If any such Opinion of Counsel can not be delivered, then such substitution may only be effected at such time as the required Opinion of Counsel can be given.
(d) It is understood and agreed that the representations, warranties and indemnification (i) set forth in this Section 2.03 and (ii) of the Sponsor and the Depositor set forth in the Sale Agreement and assigned to the Trustee by the Depositor hereunder shall each survive delivery of the Mortgage Files and the Assignment of Mortgage of each Mortgage Loan to the Trustee and shall continue throughout the term of this Agreement.
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (Specialty Underwriting & Residential Finance Trust, Series 2006-Bc5), Pooling and Servicing Agreement (SURF Mortgage Loan Asset-Backed Certificates, Series 2007-Bc1), Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Inc)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, warrants and covenants to the Trustee, for its own benefit and the benefit of the Certificateholders, Certificateholders and to the Master Servicer, the Special Servicer and the Special ServicerCompanion Loan Noteholders, as of the Closing Date, that:
(i) The Depositor is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full power and authority taken all necessary corporate action to enter into and consummate all transactions contemplated by this Agreement, has duly authorized authorize the execution, delivery and performance of this AgreementAgreement by it, and has duly executed the power and delivered authority to execute, deliver and perform this Agreement and all the transactions contemplated hereby, including, but not limited to, the power and authority to sell, assign and transfer the Mortgage Loans in accordance with this Agreement.;
(ivii) This Agreement, assuming Assuming the due authorization, execution and delivery of this Agreement by each other party hereto, this Agreement and all of the other parties heretoobligations of the Depositor hereunder are the legal, constitutes a valid, legal valid and binding obligation obligations of the Depositor, enforceable against the Depositor in accordance with the terms hereofof this Agreement, subject to (A) applicable except as such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium and reorganization or other similar laws affecting the enforcement of creditors' rights generally, and (B) by general principles of equity, equity (regardless of whether such enforcement enforceability is considered in a proceeding in equity or at law.);
(viii) The Depositor is not in violation of, and its execution and delivery of this Agreement and the performance of its performance and compliance with obligations hereunder by the terms of this Agreement Depositor will not conflict with any provisions of any law or regulations to which the Depositor is subject, or conflict with, result in a breach of or constitute a violation ofdefault under any of the terms, conditions or provisions of the certificate of incorporation or the by-laws of the Depositor or any lawindenture, agreement or instrument to which the Depositor is a party or by which it is bound, or any order or decree applicable to the Depositor, or result in the creation or imposition of any court or arbiter, or lien on any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Depositor's good faith and reasonable judgmentassets or property, is likely to affect which would materially and adversely either affect the ability of the Depositor to perform its obligations under carry out the transactions contemplated by this Agreement Agreement; the Depositor has obtained any consent, approval, authorization or order of any court or governmental agency or body required for the financial condition execution, delivery and performance by the Depositor of the Depositor.this Agreement;
(viiv) The transfer of the Trust Mortgage Loans to the Trustee as contemplated herein requires There is no regulatory approvalaction, other than any such approvals as have been obtained, and is not subject to any bulk transfer suit or similar law in effect in any applicable jurisdiction.
(vii) The Depositor is not transferring the Trust Mortgage Loans to the Trustee with any intent to hinder, delay or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left with unreasonably small assets or capital with which to engage in and conduct its business.
(x) The Depositor 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.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xii) No litigation is proceeding pending or, to the best of the Depositor's knowledge, threatened against the Depositor that, if determined adversely to the Depositor, in any court or by or before any other governmental agency or instrumentality which would prohibit the Depositor from entering into this Agreement or that, in the Depositor's good faith and reasonable judgment, is likely to materially and adversely affect either the validity of the Mortgage Loans or the ability of the Depositor to perform its obligations under carry out the transactions contemplated by this Agreement or Agreement; and
(v) The Depositor is the financial condition lawful owner of the Depositor.
(xiii) Except for any actions that are the express responsibility of another party hereunder or under the Mortgage Loan Purchase Agreements, and further except for actions that the Depositor is expressly permitted to complete subsequent to the Closing Date, the Depositor has taken all actions required under applicable law to effectuate the transfer of the Trust Mortgage Loans by the Depositor to the Trustee.
(xiv) Immediately prior to the transfer of the UBS Trust Mortgage Loans to the Trust pursuant to this Agreement (and assuming that the UBS Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Trust Mortgage Loan, free and clear of all liens, claims, encumbrances and other interests), (A) interests with the Depositor had good and marketable title to, and was the sole owner and holder of, each UBS Trust Mortgage Loan; and (B) the Depositor has full right and authority to sell, assign and transfer the UBS Trust Mortgage Loans, exclusive of the servicing rights pertaining thereto.
(b) The Depositor hereby makes Loans to the Trustee, for the Trustee's own benefit Trust and the benefit of the Certificateholders, with respect to each Xxxxxx Trust Mortgage Loan only, the representations and warranties shown on Schedule II hereto, as of the Closing Date or such other date specified in the particular representation and warranty, subject Loans have been validly transferred to the exceptions set forth on Schedule III hereto (the headings set forth in Schedule II hereto with respect to each representation and warranty being for convenience of reference only and in no way limiting, expanding or otherwise affecting the scope or subject matter thereof)Trust. Except as expressly provided in Section 2.04(a), the Depositor does not make any representations or warranties regarding the UBS Trust Mortgage Loans.
(c) The representations, warranties and covenants of the Depositor set forth in or made pursuant to this Section 2.04(a) and Section 2.04(b) 2.04 shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any breach of any of such representations, warranties and covenants, the party discovering such breach shall give prompt written notice thereof to the other parties.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Greenwich Capital Commercial Funding Corp), Pooling and Servicing Agreement (Greenwich Capital Commercial Funding Corp. Commercial Mortgage Trust 2006-Gg7)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, represents and warrants and covenants to the TrusteeNIMs Insurer, for its own benefit and the benefit of the Certificateholders, and to the Master Servicer and the Special ServicerTrustee as follows, as of the Closing Date, thatdate hereof:
(i) The Depositor is duly organized and is validly existing as a corporation duly organized, validly existing and in good standing under the laws of the State of DelawareDelaware and has full power and authority (corporate and other) 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 and the Sale Agreement.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full corporate power and authority to execute, deliver and perform, and to enter into and consummate all the transactions contemplated by by, this Agreement, Agreement and the Sale Agreement and has duly authorized authorized, by all necessary corporate action on its part, the execution, delivery and performance of this Agreement and the Sale Agreement, ; and has duly executed this Agreement and delivered this Agreement.
(iv) This the Sale Agreement, assuming the due authorization, execution and delivery hereof by each of the other parties hereto, constitutes a validlegal, legal valid and binding obligation of the Depositor, enforceable against the Depositor in accordance with the terms hereofits terms, subject subject, as to enforceability, to (Ai) applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally, generally and (Bii) general principles of equity, regardless of whether such enforcement is considered sought in a proceeding in equity or at law.
(viii) The Depositor is not in violation of, and its execution and delivery of this Agreement and its performance the Sale Agreement by the Depositor, the consummation of the transactions contemplated by this Agreement and the Sale Agreement, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Depositor and will not (A) result in a material breach of any term or provision of the charter or by-laws of the Depositor or (B) materially conflict with, result in a violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Depositor is a party or by which it may be bound or (C) constitute a material violation of any statute, order or regulation applicable to the Depositor of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Depositor; and the Depositor is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Depositor's ability to perform or meet any of its obligations under this Agreement.
(iv) No litigation is pending, or, to the best of the Depositor's knowledge, threatened, against the Depositor that would materially and adversely affect the execution, delivery or enforceability of this Agreement will not constitute a violation of, any law, any order and the Sale Agreement or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Depositor's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Depositor to perform its obligations under this Agreement or and the financial condition of Sale Agreement in accordance with the Depositorterms hereof.
(viv) The transfer No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Depositor of, or compliance by the Depositor with, this Agreement and the Sale Agreement or the consummation of the Trust Mortgage Loans to the Trustee as transactions contemplated herein requires no regulatory hereby, or if any such consent, approval, other than any such approvals as have been obtainedauthorization or order is required, and is not subject to any bulk transfer or similar law in effect in any applicable jurisdiction.
(vii) the Depositor has obtained the same. The Depositor is not transferring the Trust Mortgage Loans hereby represents and warrants to the Trustee with any intent respect to hinder, delay or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left with unreasonably small assets or capital with which to engage in and conduct its business.
(x) The Depositor 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.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xii) No litigation is pending or, to the best of the Depositor's knowledge, threatened against the Depositor that, if determined adversely to the Depositor, would prohibit the Depositor from entering into this Agreement or that, in the Depositor's good faith and reasonable judgment, is likely to materially and adversely affect either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(xiii) Except for any actions that are the express responsibility of another party hereunder or under the each Mortgage Loan Purchase Agreements, and further except for actions that the Depositor is expressly permitted to complete subsequent to as of the Closing Date, the Depositor has taken all actions required under applicable law to effectuate and following the transfer of the Trust Mortgage Loans by the Depositor to the Trustee.
(xiv) Immediately prior to the transfer of the UBS Trust Mortgage Loans to it by the Trust pursuant to this Agreement (and assuming that the UBS Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Trust Mortgage LoanSponsor, free and clear of all liens, claims, encumbrances and other interests), (A) the Depositor had good title to the Mortgage Loans and marketable title tothe Mortgage Notes were subject to no offsets, and was the sole owner and holder ofclaims, each UBS Trust Mortgage Loan; and (B) the Depositor has full right and authority to sellliens, assign and transfer the UBS Trust Mortgage Loansmortgage, exclusive of the servicing rights pertaining theretopledge, charge, security interest, defenses or counterclaims.
(b) The Depositor hereby makes to the Trustee, for the Trustee's own benefit representations and the benefit warranties of the Certificateholders, each Transferor with respect to each Xxxxxx Trust the related Mortgage Loan onlyLoans in the applicable Transfer Agreement, which have been assigned to the Trustee hereunder, were made as of the date specified in the applicable Transfer Agreement and brought forward to the Closing Date pursuant to the related Bring Down Letter. The representations and warranties shown on Schedule II hereto, of each Transferor with respect to the Mortgage Loans contained in the Bring Down Letter were made as of the Closing Date or such other date specified Date. The representations and warranties of the Sponsor with respect to the Mortgage Loans contained in the particular Sale Agreement were made as of the Closing Date. To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of (i) both representation or warranty of the applicable Transferor under the applicable Transfer Agreements or Bring Down Letters and warranty(ii) a representation or warranty of the Sponsor under the Sale Agreement, subject to the exceptions set forth on Schedule III hereto (obligations of the headings Sponsor under the Sale Agreement shall be enforced against the Transferor or the Sponsor, as applicable, as set forth in Schedule II hereto the Sale Agreement. The Trustee is hereby directed to and does acknowledge that the Sponsor shall have no obligation or liability with respect to each any breach of a representation and or warranty being for convenience of reference only and in no way limiting, expanding or otherwise affecting the scope or subject matter thereof). Except as expressly provided in Section 2.04(a), the Depositor does not make made by it with respect to any representations or warranties regarding the UBS Trust related Mortgage Loans.
(c) The representations, warranties and covenants of the Depositor except as otherwise set forth in or made pursuant to Section 2.04(a) and Section 2.04(b) shall survive the execution and delivery of this Agreement and shall inure Sale Agreement, if (as certified to the benefit Trustee by the Sponsor) the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the Persons for whose benefit they were related Transferor in the related Transfer Agreement or Bring Down Letter, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty. The Trustee also is hereby directed to and does acknowledge that the Sponsor shall have no obligation or liability with respect to any breach of a representation or warranty made for so long as solely by the Trust Fund remains Transferors with respect to the Mortgage Loans, without regard to whether the related Transferor fulfills its contractual obligations in existencerespect of such representation or warranty. Upon discovery by any party hereto of The Trustee further acknowledges that the Depositor shall have no obligation or liability with respect to any breach of any of such representations, warranties and covenants, the party discovering such breach shall give prompt written notice thereof representation or warranty with respect to the other partiesMortgage Loans (except as set forth in Section 2.03(a)(v)) under any circumstances.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Mortgage Loan Asset-Backed Certificates, Series 2006-He4), Pooling and Servicing Agreement (Mortgage Loan Asset-Backed Certificates, Series 2006-He4)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, warrants and covenants to the Trustee, for its own benefit and the benefit of the Certificateholders, and to the Fiscal Agent, the Master Servicer and the Special Servicer, as of the Closing Date, that:
(i) The Depositor is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full power and authority taken all necessary corporate action to enter into and consummate all transactions contemplated by this Agreement, has duly authorized authorize the execution, delivery and performance of this AgreementAgreement by it, and has duly executed the power and delivered authority to execute, deliver and perform this Agreement and all the transactions contemplated hereby, including, but not limited to, the power and authority to sell, assign and transfer the Mortgage Loans in accordance with this Agreement.;
(ivii) This Agreement, assuming Assuming the due authorization, execution and delivery of this Agreement by each other party hereto, this Agreement and all of the other parties heretoobligations of the Depositor hereunder are the legal, constitutes a valid, legal valid and binding obligation obligations of the Depositor, enforceable against the Depositor in accordance with the terms hereofof this Agreement, subject to (A) applicable except as such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium and reorganization or other similar laws affecting the enforcement of creditors' rights generally, and (B) by general principles of equity, equity (regardless of whether such enforcement enforceability is considered in a proceeding in equity or at law.);
(viii) The Depositor is not in violation of, and its execution and delivery of this Agreement and the performance of its performance and compliance with obligations hereunder by the terms of this Agreement Depositor will not conflict with any provisions of any law or regulations to which the Depositor is subject, or conflict with, result in a breach of or constitute a violation ofdefault under any of the terms, conditions or provisions of the certificate of incorporation or the by-laws of the Depositor or any lawindenture, agreement or instrument to which the Depositor is a party or by which it is bound, or any order or decree applicable to the Depositor, or result in the creation or imposition of any court or arbiter, or lien on any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Depositor's good faith and reasonable judgmentassets or property, is likely to affect which would materially and adversely either affect the ability of the Depositor to perform its obligations under carry out the transactions contemplated by this Agreement Agreement; the Depositor has obtained any consent, approval, authorization or order of any court or governmental agency or body required for the financial condition execution, delivery and performance by the Depositor of the Depositor.this Agreement;
(viiv) The transfer of the Trust Mortgage Loans to the Trustee as contemplated herein requires There is no regulatory approvalaction, other than any such approvals as have been obtained, and is not subject to any bulk transfer suit or similar law in effect in any applicable jurisdiction.
(vii) The Depositor is not transferring the Trust Mortgage Loans to the Trustee with any intent to hinder, delay or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left with unreasonably small assets or capital with which to engage in and conduct its business.
(x) The Depositor 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.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xii) No litigation is proceeding pending or, to the best of the Depositor's knowledge, threatened against the Depositor that, if determined adversely to the Depositor, in any court or by or before any other governmental agency or instrumentality which would prohibit the Depositor from entering into this Agreement or that, in the Depositor's good faith and reasonable judgment, is likely to materially and adversely affect either the validity of the Mortgage Loans or the ability of the Depositor to perform its obligations under carry out the transactions contemplated by this Agreement or Agreement; and
(v) The Depositor is the financial condition lawful owner of the Depositor.
(xiii) Except for any actions that are the express responsibility of another party hereunder or under the Mortgage Loan Purchase Agreements, and further except for actions that the Depositor is expressly permitted to complete subsequent to the Closing Date, the Depositor has taken all actions required under applicable law to effectuate the transfer of the Trust Mortgage Loans by the Depositor to the Trustee.
(xiv) Immediately prior to the transfer of the UBS Trust Mortgage Loans to the Trust pursuant to this Agreement (and assuming that the UBS Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Trust Mortgage Loan, free and clear of all liens, claims, encumbrances and other interests), (A) interests with the Depositor had good and marketable title to, and was the sole owner and holder of, each UBS Trust Mortgage Loan; and (B) the Depositor has full right and authority to sell, assign and transfer the UBS Trust Mortgage Loans, exclusive of the servicing rights pertaining thereto.
(b) The Depositor hereby makes Loans to the Trustee, for the Trustee's own benefit Trust and the benefit of the Certificateholders, with respect to each Xxxxxx Trust Mortgage Loan only, the representations and warranties shown on Schedule II hereto, as of the Closing Date or such other date specified in the particular representation and warranty, subject Loans have been validly transferred to the exceptions set forth on Schedule III hereto (the headings set forth in Schedule II hereto with respect to each representation and warranty being for convenience of reference only and in no way limiting, expanding or otherwise affecting the scope or subject matter thereof)Trust. Except as expressly provided in Section 2.04(a), the Depositor does not make any representations or warranties regarding the UBS Trust Mortgage Loans.
(c) The representations, warranties and covenants of the Depositor set forth in or made pursuant to this Section 2.04(a) and Section 2.04(b) 2.04 shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any breach of any of such representations, warranties and covenants, the party discovering such breach shall give prompt written notice thereof to the other parties.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Greenwich Capital Comm Mort Pass THR Certs Ser 2003-C2), Pooling and Servicing Agreement (Greenwich Capital Comm Mort Pass THR Certs Ser 2003-C2)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, warrants and covenants to the Trustee, for its own benefit and the benefit of the Certificateholders, and to any Fiscal Agent, the Master Servicer and the Special Servicer, as of the Closing Date, that:
(i) The Depositor is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full power and authority to enter into and consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and delivery by each of the other parties hereto, constitutes a valid, legal and binding obligation of the Depositor, enforceable against the Depositor in accordance with the terms hereof, subject to (A) applicable bankruptcy, insolvency, reorganization, moratorium and other laws affecting the enforcement of creditors' rights generally, and (B) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law.
(v) The Depositor is not in violation of, and its execution and delivery of this Agreement and its performance and compliance with the terms of this Agreement will not constitute a violation of, any law, any order or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Depositor's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(vi) The transfer of the Trust Mortgage Loans to the Trustee as contemplated herein requires no regulatory approval, other than any such approvals as have been obtained, and is not subject to any bulk transfer or similar law in effect in any applicable jurisdiction.
(vii) The Depositor is not transferring the Trust Mortgage Loans to the Trustee with any intent to hinder, delay or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left with unreasonably small assets or capital with which to engage in and conduct its business.
(x) The Depositor 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.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xii) No litigation is pending or, to the best of the Depositor's knowledge, threatened against the Depositor that, if determined adversely to the Depositor, would prohibit the Depositor from entering into this Agreement or that, in the Depositor's good faith and reasonable judgment, is likely to materially and adversely affect either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(xiii) Except for any actions that are the express responsibility of another party hereunder or under the Mortgage Loan Purchase Agreements, and further except for actions that the Depositor is expressly permitted to complete subsequent to the Closing Date, the Depositor has taken all actions required under applicable law to effectuate the transfer of the Trust Mortgage Loans by the Depositor to the Trustee.
(xiv) Immediately prior to the transfer of the UBS Trust Mortgage Loans to the Trust pursuant to this Agreement (and assuming that the UBS Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Trust Mortgage Loan, free and clear of all liens, claims, encumbrances and other interests), (A) the Depositor had good and marketable title to, and was the sole owner and holder of, each UBS Trust Mortgage Loan; and (B) the Depositor has full right and authority to sell, assign and transfer the UBS Trust Mortgage Loans, exclusive of the servicing rights pertaining thereto.
(b) The Depositor hereby makes represents and warrants to the Trustee, for the Trustee's its own benefit and the benefit of the Certificateholders, with respect to each Xxxxxx Trust Mortgage Loan only, the representations and warranties shown on Schedule II hereto, as of the Closing Date or such other date specified in the particular representation and warranty, subject to the exceptions set forth on Schedule III hereto II hereto, as follows (the headings set forth in Schedule II hereto this Section 2.04(b) with respect to each representation and warranty being for convenience of reference only and in no way limiting, expanding or otherwise affecting the scope or subject matter thereof). Except as expressly provided in Section 2.04(a), the Depositor does not make any representations or warranties regarding the UBS Trust Mortgage Loans.
(c) The representations, warranties and covenants of the Depositor set forth in or made pursuant to Section 2.04(a) and Section 2.04(b) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any breach of any of such representations, warranties and covenants, the party discovering such breach shall give prompt written notice thereof to the other parties.):
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Structured Asset Sec Corp Lb-Ubs Comm Mort Trust 2004-C2), Pooling and Servicing Agreement (Structured Asset Sec Corp Ii Lb-Ubs Comm Mort Trust 2004-C4)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, warrants and covenants to the Trustee, for its own benefit and the benefit of the Certificateholders, Certificateholders and to the Master Servicer, the Special Servicer and the Special ServicerCompanion Loan Noteholders, as of the Closing Date, that:
(i) The Depositor is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full power and authority taken all necessary corporate action to enter into and consummate all transactions contemplated by this Agreement, has duly authorized authorize the execution, delivery and performance of this AgreementAgreement by it, and has duly executed the power and delivered authority to execute, deliver and perform this Agreement and all the transactions contemplated hereby, including, but not limited to, the power and authority to sell, assign and transfer the Mortgage Loans in accordance with this Agreement.;
(ivii) This Agreement, assuming Assuming the due authorization, execution and delivery of this Agreement by each other party hereto, this Agreement and all of the other parties heretoobligations of the Depositor hereunder are the legal, constitutes a valid, legal valid and binding obligation obligations of the Depositor, enforceable against the Depositor in accordance with the terms hereofof this Agreement, subject to (A) applicable except as such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium and reorganization or other similar laws affecting the enforcement of creditors' rights generally, and (B) by general principles of equity, equity (regardless of whether such enforcement enforceability is considered in a proceeding in equity or at law.);
(viii) The Depositor is not in violation of, and its execution and delivery of this Agreement and the performance of its performance and compliance with obligations hereunder by the terms of this Agreement Depositor will not conflict with any provisions of any law or regulations to which the Depositor is subject, or conflict with, result in a breach of or constitute a violation ofdefault under any of the terms, conditions or provisions of the certificate of incorporation or the by-laws of the Depositor or any lawindenture, agreement or instrument to which the Depositor is a party or by which it is bound, or any order or decree applicable to the Depositor, or result in the creation or imposition of any court or arbiter, or lien on any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Depositor's good faith and reasonable judgmentassets or property, is likely to affect which would materially and adversely either affect the ability of the Depositor to perform its obligations under carry out the transactions contemplated by this Agreement Agreement; the Depositor has obtained any consent, approval, authorization or order of any court or governmental agency or body required for the financial condition execution, delivery and performance by the Depositor of the Depositor.this Agreement;
(viiv) The transfer of the Trust Mortgage Loans to the Trustee as contemplated herein requires There is no regulatory approvalaction, other than any such approvals as have been obtained, and is not subject to any bulk transfer suit or similar law in effect in any applicable jurisdiction.
(vii) The Depositor is not transferring the Trust Mortgage Loans to the Trustee with any intent to hinder, delay or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left with unreasonably small assets or capital with which to engage in and conduct its business.
(x) The Depositor 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.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xii) No litigation is proceeding pending or, to the best of the Depositor's knowledge, threatened against the Depositor that, if determined adversely to the Depositor, in any court or by or before any other governmental agency or instrumentality which would prohibit the Depositor from entering into this Agreement or that, in the Depositor's good faith and reasonable judgment, is likely to materially and adversely affect either the validity of the Mortgage Loans or the ability of the Depositor to perform its obligations under carry out the transactions contemplated by this Agreement or Agreement; and
(v) The Depositor is the financial condition lawful owner of the Depositor.
(xiii) Except for any actions that are the express responsibility of another party hereunder or under the Mortgage Loan Purchase Agreements, and further except for actions that the Depositor is expressly permitted to complete subsequent to the Closing Date, the Depositor has taken all actions required under applicable law to effectuate the transfer of the Trust Mortgage Loans by the Depositor to the Trustee.
(xiv) Immediately prior to the transfer of the UBS Trust Mortgage Loans to the Trust pursuant to this Agreement (and assuming that the UBS Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Trust Mortgage Loan, free and clear of all liens, claims, encumbrances and other interests), (A) interests with the Depositor had good and marketable title to, and was the sole owner and holder of, each UBS Trust Mortgage Loan; and (B) the Depositor has full right and authority to sell, assign and transfer the UBS Trust Mortgage Loans, exclusive of the servicing rights pertaining thereto.
(b) The Depositor hereby makes Loans to the Trustee, for the Trustee's own benefit Trust and the benefit of the Certificateholders, with respect to each Xxxxxx Trust Mortgage Loan only, the representations and warranties shown on Schedule II hereto, as of the Closing Date or such other date specified in the particular representation and warranty, subject Loans have been validly transferred to the exceptions set forth on Schedule III hereto (the headings set forth in Schedule II hereto with respect to each representation and warranty being for convenience of reference only and in no way limiting, expanding or otherwise affecting the scope or subject matter thereof)Trust. Except as expressly provided in Section 2.04(a), the Depositor does not make any representations or warranties regarding the UBS Trust Mortgage Loans.
(c) The representations, warranties and covenants of the Depositor set forth in or made pursuant to this Section 2.04(a) and Section 2.04(b) 2.04 shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any breach of any of such representations, warranties and covenants, the party discovering such breach shall give prompt written notice thereof to the other parties.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (COBALT CMBS Commercial Mortgage Trust 2007-C2), Pooling and Servicing Agreement (COBALT CMBS Commercial Mortgage Trust 2007-C3)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, represents and warrants and covenants to the Trustee, for its own benefit and the benefit of the Certificateholders, and to the Master Servicer and the Special ServicerTrustee as follows, as of the Closing Date, that:date hereof
(i) The Depositor is duly organized and is validly existing as a corporation duly organized, validly existing and in good standing under the laws of the State of DelawareDelaware and has full power and authority (corporate and other) 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 and the Sale Agreement.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full corporate power and authority to execute, deliver and perform, and to enter into and consummate all the transactions contemplated by by, this Agreement, Agreement and the Sale Agreement and has duly authorized authorized, by all necessary corporate action on its part, the execution, delivery and performance of this Agreement and the Sale Agreement, ; and has duly executed this Agreement and delivered this Agreement.
(iv) This the Sale Agreement, assuming the due authorization, execution and delivery hereof by each of the other parties hereto, constitutes a validlegal, legal valid and binding obligation of the Depositor, enforceable against the Depositor in accordance with the terms hereofits terms, subject subject, as to enforceability, to (Ai) applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally, generally and (Bii) general principles of equity, regardless of whether such enforcement is considered sought in a proceeding in equity or at law.
(viii) The Depositor is not in violation of, and its execution and delivery of this Agreement and its performance the Sale Agreement by the Depositor, the consummation of the transactions contemplated by this Agreement and the Sale Agreement, and the fulfillment of or compliance with the terms hereof are in the ordinary course of this Agreement business of the Depositor and will not (A) result in a material breach of any term or provision of the charter or by-laws of the Depositor or (B) materially conflict with, result in a violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Depositor is a party or by which it may be bound or (C) constitute a material violation ofof any statute, any law, any order or decree regulation applicable to the Depositor of any court court, regulatory body, administrative agency or arbitergovernmental body having jurisdiction over the Depositor; and the Depositor is not in breach or violation of any material indenture or other material agreement or instrument, or any order, regulation or demand in violation of any federalstatute, state order or local regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or regulatory authority, which violation, in violation may materially impair the Depositor's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Depositor to perform or meet any of its obligations under this Agreement or the financial condition of the DepositorAgreement.
(vi) The transfer of the Trust Mortgage Loans to the Trustee as contemplated herein requires no regulatory approval, other than any such approvals as have been obtained, and is not subject to any bulk transfer or similar law in effect in any applicable jurisdiction.
(vii) The Depositor is not transferring the Trust Mortgage Loans to the Trustee with any intent to hinder, delay or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left with unreasonably small assets or capital with which to engage in and conduct its business.
(x) The Depositor 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.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xiiiv) No litigation is pending or, to the best of the Depositor's knowledge, threatened threatened, against the Depositor that, if determined adversely to the Depositor, that would prohibit the Depositor from entering into this Agreement or that, in the Depositor's good faith and reasonable judgment, is likely to materially and adversely affect either the execution, delivery or enforceability of this Agreement and the Sale Agreement or the ability of the Depositor to perform its obligations under this Agreement or and the financial condition of Sale Agreement in accordance with the Depositorterms hereof.
(xiiiv) Except No consent, approval, authorization or order of any court or governmental agency or body is required for any actions that are the express responsibility of another party hereunder or under the Mortgage Loan Purchase Agreementsexecution, delivery and further except for actions that performance by the Depositor of, or compliance by the Depositor with, this Agreement and the Sale Agreement or the consummation of the transactions contemplated hereby, or if any such consent, approval, authorization or order is expressly permitted to complete subsequent to the Closing Daterequired, the Depositor has taken all actions required under applicable law obtained the same. The Depositor hereby represents and warrants to effectuate the Trustee with respect to each Mortgage Loan as of the Closing Date (or the Subsequent Transfer Date with respect to Subsequent Mortgage Loans), and following the transfer of the Trust Mortgage Loans by the Depositor to the Trustee.
(xiv) Immediately prior to the transfer of the UBS Trust Mortgage Loans to it by the Trust pursuant to this Agreement (and assuming that the UBS Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Trust Mortgage LoanSponsor, free and clear of all liens, claims, encumbrances and other interests), (A) the Depositor had good title to the Mortgage Loans and marketable title tothe Mortgage Notes were subject to no offsets, and was the sole owner and holder ofclaims, each UBS Trust liens, mortgage, pledge, charge, security interest, defenses or counterclaims.
(vi) Each Mortgage Loan; and (B) the Depositor Loan in Group One has full right and authority to sell, assign and transfer the UBS Trust Mortgage Loans, exclusive a Stated Principal Balance as of the servicing rights pertaining theretoInitial Cut-off Date that complies with the loan limitations of Xxxxxx Xxx and Xxxxxxx Mac as in effect on the Initial Cut-off Date.
(b) The Depositor hereby makes To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of a representation or warranty of the TrusteeSponsor under the Sale Agreement, for the only right or remedy of the Trustee or of any Certificateholder shall be the Trustee's own benefit and right to enforce the benefit obligations of the Certificateholders, Sponsor under any applicable representation or warranty made by it. The Trustee acknowledges that the Depositor shall have no obligation or liability with respect to each Xxxxxx Trust Mortgage Loan only, the representations and warranties shown on Schedule II hereto, as any breach of the Closing Date any representation or such other date specified in the particular representation and warranty, subject warranty with respect to the exceptions set forth on Schedule III hereto Mortgage Loans (the headings except as set forth in Schedule II hereto with respect to each representation and warranty being for convenience of reference only and in no way limiting, expanding or otherwise affecting the scope or subject matter thereofSection 2.03(a)(v). Except as expressly provided in Section 2.04(a), the Depositor does not make ) under any representations or warranties regarding the UBS Trust Mortgage Loanscircumstances.
(c) The representations, warranties and covenants of the Depositor set forth in or made pursuant to Section 2.04(a) and Section 2.04(b) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any the Depositor, the Servicer, or the Trustee of a breach of any of such representationsrepresentations and warranties set forth in the Sale Agreement that adversely and materially affects the value of the related Mortgage Loan, warranties and covenantsprepayment charges or the interests of the Certificateholders, the party discovering such breach shall give prompt written notice thereof to the other parties. Within ninety (90) days of the discovery of a breach of any representation or warranty given to the Trustee by the Depositor, the Sponsor and assigned by the Depositor to the Trustee, the Depositor, or the Sponsor shall either (a) cure such breach in all material respects, (b) repurchase such Mortgage Loan or any property acquired in respect thereof from the Trustee at the Purchase Price or (c) within the two year period following the Closing Date, substitute a Replacement Mortgage Loan for the affected Mortgage Loan. In the event of discovery of a breach of any representation and warranty of the Sponsor or the Depositor, the Trustee shall enforce its rights under the Sale Agreement or thereunder for the benefit of Certificateholders. In the event of a breach of the representations and warranties with respect to the Mortgage Loans set forth in a Sale Agreement, the Trustee shall enforce the right of the Issuing Entity to be indemnified for such breach of representation and warranty. In the event that such breach relates solely to the unenforceability of a prepayment charge, amounts received in respect of such indemnity up to the amount of such prepayment charge shall be distributed pursuant to Section 4.04(b)(i)(B). As provided in the Sale Agreement, if the Sponsor substitutes for a Mortgage Loan for which there is a breach of any representations and warranties which adversely and materially affects the value of such Mortgage Loan and such substitute mortgage loan is not a Replacement Mortgage Loan, under the terms of the Sale Agreement, the Sponsor will, in exchange for such substitute Mortgage Loan, (i) provide the applicable Purchase Price for the affected Mortgage Loan or (ii) within two years of the Closing Date, substitute such affected Mortgage Loan with a Replacement Mortgage Loan. Any such substitution shall not be effected prior to the additional delivery to the Trustee of a Request for Release substantially in the form of Exhibit I and shall not be effected unless it is within two years of the Startup Day. As provided in the Sale Agreement, the Sponsor indemnifies and holds the Issuing Entity, the 72 Trustee, the Depositor, the Servicer and each Certificateholder harmless against any and all taxes, claims, losses, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, fees and expenses that the Issuing Entity, the Trustee, the Depositor, the Servicer and any Certificateholder may sustain in connection with any actions of the Sponsor relating to a repurchase of a Mortgage Loan other than in compliance with the terms of this Section 2.03 and the Sale Agreement, to the extent that any such action causes (i) any federal or state tax to be imposed on the Issuing Entity or any REMIC provided for herein, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup day" under Section 860G(d)(1) of the Code, or (ii) any REMIC created hereunder to fail to qualify as a REMIC at any time that any Certificate is outstanding. With respect to any Mortgage Loan repurchased by the Depositor pursuant to this Agreement or by the Sponsor pursuant to the Sale Agreement, the principal portion of the funds received by the Servicer in respect of such repurchase of a Mortgage Loan will be considered a Principal Prepayment and shall be deposited by the Servicer in the Certificate Account pursuant to Section 3.05. The Trustee, upon receipt of the full amount of the Purchase Price for a Deleted Mortgage Loan, or upon receipt of the Mortgage File for a Replacement Mortgage Loan substituted for a Deleted Mortgage Loan, shall release or cause to be released and reassign to the Depositor or the Sponsor, as applicable, the related Mortgage File for the Deleted Mortgage Loan and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation or warranty, as shall be necessary to vest in such party or its designee or assignee title to any Deleted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Trustee, and the Trustee shall not have any further responsibility with respect to the Mortgage File relating to such Deleted Mortgage Loan. With respect to each Replacement Mortgage Loan to be delivered to the Trustee pursuant to the terms of this Article II in exchange for a Deleted Mortgage Loan: (i) the Depositor or the Sponsor, as applicable, must deliver to the Trustee the Mortgage File for the Replacement Mortgage Loan containing the documents set forth in Section 2.01 along with a written certification certifying as to the delivery of such Mortgage File and containing the granting language set forth in the first sentence of Section 2.01; and (ii) the Depositor will be deemed to have made, with respect to such Replacement Mortgage Loan, each of the representations and warranties made by it with respect to the related Deleted Mortgage Loan. The Trustee shall review the Mortgage File with respect to each Replacement Mortgage Loan and certify to the Depositor that all documents required by Section 2.01 have been executed and received. For any month in which the Sponsor substitutes one or more Replacement Mortgage Loans for one or more Deleted Mortgage Loans, the Sponsor will determine the amount (if any) by which the aggregate principal balance of all such Replacement Mortgage Loans as of the date of substitution and the aggregate prepayment charges with respect to such Replacement Mortgage Loans is less than the aggregate Stated Principal Balance (after application of the principal portion of the Scheduled Payment due in the month of substitution) and aggregate prepayment charges of all such Deleted Mortgage Loans. An amount equal to the aggregate of the deficiencies described in the preceding sentence (such amount, the "Substitution Adjustment Amount") shall be delivered by the Sponsor to the Servicer for deposit into the Collection Account on the Determination Date for the Distribution Date relating to the Prepayment Period during which the related Mortgage Loan became required to be purchased or replaced hereunder. The Sponsor shall give or cause to be given written notice to the Certificateholders that such substitution has taken place, shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Replacement Mortgage Loan or Replacement Mortgage Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the Trustee. Upon such substitution by the Sponsor, such Replacement Mortgage Loan or Replacement Mortgage Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and the Sale Agreement, including all applicable representations and warranties thereof included in the Sale Agreement as of the date of substitution. In addition, the Sponsor shall obtain at its own expense and deliver to the Trustee an Opinion of Counsel addressed to the Trustee to the effect that such substitution will not (a) cause any federal tax to be imposed on the Issuing Entity or any REMIC provided for herein, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup day" under Section 860G(d)(1) of the Code or (b) adversely affect the status of any REMIC provided for herein as a REMIC. If any such Opinion of Counsel can not be delivered, then such substitution may only be effected at such time as the required Opinion of Counsel can be given.
(d) It is understood and agreed that the representations, warranties and indemnification (i) set forth in this Section 2.03 and (ii) of the Sponsor and the Depositor set forth in the Sale Agreement and assigned to the Trustee by the Depositor hereunder shall each survive delivery of the Mortgage Files and the Assignment of Mortgage of each Mortgage Loan to the Trustee and shall continue throughout the term of this Agreement.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Specialty Underwriting & Residential Finance Trust Series 2006-Ab3), Pooling and Servicing Agreement (Specialty Underwriting & Residential Finance Trust Series 2006-Ab3)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, represents and warrants and covenants to the TrusteeServicer, for its own benefit the Trustee and the benefit of the Certificateholders, and to the Master Servicer and the Special ServicerNIMs Insurer as follows, as of the Closing Date, thatdate hereof:
(i) The Depositor is duly organized and is validly existing as a corporation duly organized, validly existing and in good standing under the laws of the State of DelawareDelaware and has full power and authority (corporate and other) 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 and the Sale Agreement.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full corporate power and authority to execute, deliver and perform, and to enter into and consummate all the transactions contemplated by by, this Agreement, Agreement and the Sale Agreement and has duly authorized authorized, by all necessary corporate action on its part, the execution, delivery and performance of this Agreement and the Sale Agreement, ; and has duly executed this Agreement and delivered this Agreement.
(iv) This the Sale Agreement, assuming the due authorization, execution and delivery hereof by each of the other parties hereto, constitutes a validlegal, legal valid and binding obligation of the Depositor, enforceable against the Depositor in accordance with the terms hereofits terms, subject subject, as to enforceability, to (Ai) applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally, generally and (Bii) general principles of equity, regardless of whether such enforcement is considered sought in a proceeding in equity or at law.
(viii) The Depositor is not in violation of, and its execution and delivery of this Agreement and its performance the Sale Agreement by the Depositor, the consummation of the transactions contemplated by this Agreement and the Sale Agreement, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Depositor and will not (A) result in a material breach of any term or provision of the charter or by-laws of the Depositor or (B) materially conflict with, result in a violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Depositor is a party or by which it may be bound or (C) constitute a material violation of any statute, order or regulation applicable to the Depositor of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Depositor; and the Depositor is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Depositor's ability to perform or meet any of its obligations under this Agreement.
(iv) No litigation is pending, or, to the best of the Depositor's knowledge, threatened, against the Depositor that would materially and adversely affect the execution, delivery or enforceability of this Agreement will not constitute a violation of, any law, any order and the Sale Agreement or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Depositor's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Depositor to perform its obligations under this Agreement or and the financial condition of Sale Agreement in accordance with the Depositorterms hereof.
(viv) The transfer No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Depositor of, or compliance by the Depositor with, this Agreement and the Sale Agreement or the consummation of the Trust Mortgage Loans to the Trustee as transactions contemplated herein requires no regulatory hereby, or if any such consent, approval, other than any such approvals as have been obtainedauthorization or order is required, and is not subject to any bulk transfer or similar law in effect in any applicable jurisdiction.
(vii) the Depositor has obtained the same. The Depositor is not transferring the Trust Mortgage Loans hereby represents and warrants to the Trustee with any intent respect to hinder, delay or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left with unreasonably small assets or capital with which to engage in and conduct its business.
(x) The Depositor 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.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xii) No litigation is pending or, to the best of the Depositor's knowledge, threatened against the Depositor that, if determined adversely to the Depositor, would prohibit the Depositor from entering into this Agreement or that, in the Depositor's good faith and reasonable judgment, is likely to materially and adversely affect either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(xiii) Except for any actions that are the express responsibility of another party hereunder or under the each Mortgage Loan Purchase Agreements, and further except for actions that the Depositor is expressly permitted to complete subsequent to as of the Closing Date, the Depositor has taken all actions required under applicable law to effectuate and following the transfer of the Trust Mortgage Loans by the Depositor to the Trustee.
(xiv) Immediately prior to the transfer of the UBS Trust Mortgage Loans to it by the Trust pursuant to this Agreement (and assuming that the UBS Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Trust Mortgage LoanSeller, free and clear of all liens, claims, encumbrances and other interests), (A) the Depositor had good title to the Mortgage Loans and marketable title tothe Mortgage Notes were subject to no offsets, and was the sole owner and holder ofclaims, each UBS Trust Mortgage Loan; and (B) the Depositor has full right and authority to sellliens, assign and transfer the UBS Trust Mortgage Loansmortgage, exclusive of the servicing rights pertaining theretopledge, charge, security interest, defenses or counterclaims.
(b) The Depositor hereby makes To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of a representation or warranty of the Seller under the Sale Agreement, the only right or remedy of the Trustee, for the NIMs Insurer or of any Certificateholder shall be the Trustee's own benefit and right to enforce the benefit obligations of the Certificateholders, Seller under any applicable representation or warranty made by it. The Trustee acknowledges that the Depositor shall have no obligation or liability with respect to each Xxxxxx Trust Mortgage Loan only, the representations and warranties shown on Schedule II hereto, as any breach of the Closing Date any representation or such other date specified in the particular representation and warranty, subject warranty with respect to the exceptions set forth on Schedule III hereto Mortgage Loans (the headings except as set forth in Schedule II hereto with respect to each representation and warranty being for convenience of reference only and in no way limiting, expanding or otherwise affecting the scope or subject matter thereofSection 2.03(a)(v). Except as expressly provided in Section 2.04(a), the Depositor does not make ) under any representations or warranties regarding the UBS Trust Mortgage Loanscircumstances.
(c) The representations, warranties and covenants of the Depositor set forth in or made pursuant to Section 2.04(a) and Section 2.04(b) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any the Depositor, the Servicer, the NIMs Insurer, or the Trustee of a breach of any of such representationsrepresentations and warranties set forth in the Sale Agreement that adversely and materially affects the value of the related Mortgage Loan, warranties and covenantsprepayment charges or the interests of the Certificateholders, the party discovering such breach shall give prompt written notice thereof to the other parties. Within 90 days of the discovery of a breach of any representation or warranty given to the Trustee by the Depositor, the Seller and assigned to the Trustee, the Depositor, or the Seller shall either (a) cure such breach in all material respects, (b) repurchase such Mortgage Loan or any property acquired in respect thereof from the Trustee at the Purchase Price or (c) within the two year period following the Closing Date, substitute a Replacement Mortgage Loan for the affected Mortgage Loan. In the event of discovery of a breach of any representation and warranty of the Seller or the Depositor, the Trustee shall enforce its rights under the Sale Agreement or thereunder for the benefit of Certificateholders and the NIMs Insurer. If a breach of the representations and warranties set forth in the Sale Agreement hereof exists solely due to the unenforceability of a prepayment charge, the Trustee shall notify the NIMs Insurer thereof and not seek to enforce the repurchase remedy provided for herein unless directed in writing to do so by the NIMs Insurer. In the event of a breach of the representations and warranties with respect to the Mortgage Loans set forth in a Sale Agreement, the Trustee shall at the request of the NIMs Insurer enforce the right of the Trust Fund and the NIMs Insurer to be indemnified for such breach of representation and warranty. In the event that such breach relates solely to the unenforceability of a prepayment charge, amounts received in respect of such indemnity up to the amount of such prepayment charge shall be distributed pursuant to Section 4.04(b)(i)(B). As provided in the Sale Agreement, if the Seller substitutes for a Mortgage Loan for which there is a breach of any representations and warranties which adversely and materially affects the value of such Mortgage Loan and such substitute mortgage loan is not a Replacement Mortgage Loan, under the terms of the Sale Agreement, the Seller will, in exchange for such substitute Mortgage Loan, (i) provide the applicable Purchase Price for the affected Mortgage Loan or (ii) within two years of the Closing Date, substitute such affected Mortgage Loan with a Replacement Mortgage Loan. Any such substitution shall not be effected prior to the additional delivery to the Trustee of a Request for Release substantially in the form of Exhibit I and shall not be effected unless it is within two years of the Startup Date. As provided in the Sale Agreement, the Seller indemnifies and holds the Trust Fund, the Trustee, the Depositor, the NIMs Insurer, the Servicer and each Certificateholder harmless against any and all taxes, claims, losses, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, fees and expenses that the Trust Fund, the Trustee, the Depositor, the NIMs Insurer, the Servicer and any Certificateholder may sustain in connection with any actions of the Seller relating to a repurchase of a Mortgage Loan other than in compliance with the terms of this Section 2.03 and the Sale Agreement, to the extent that any such action causes (i) any federal or state tax to be imposed on the Trust Fund or any REMIC provided for herein, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup date" under Section 860(d)(1) of the Code, or (ii) any REMIC created hereunder to fail to qualify as a REMIC at any time that any Certificate is outstanding. With respect to any Mortgage Loan repurchased by the Depositor pursuant to this Agreement or by the Seller pursuant to the Sale Agreement, the principal portion of the funds received by the Servicer in respect of such repurchase of a Mortgage Loan will be considered a Principal Prepayment and shall be deposited by the Servicer in the Certificate Account pursuant to Section 3.05. The Trustee, upon receipt of the full amount of the Purchase Price for a Deleted Mortgage Loan, or upon receipt of the Mortgage File for a Replacement Mortgage Loan substituted for a Deleted Mortgage Loan, shall release or cause to be released and reassign to the Depositor or the Seller, as applicable, the related Mortgage File for the Deleted Mortgage Loan and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation or warranty, as shall be necessary to vest in such party or its designee or assignee title to any Deleted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Trustee, and the Trustee shall not have any further responsibility with respect to the Mortgage File relating to such Deleted Mortgage Loan. With respect to each Replacement Mortgage Loan to be delivered to the Trustee pursuant to the terms of this Article II in exchange for a Deleted Mortgage Loan: (i) the Depositor or the Seller, as applicable, must deliver to the Trustee the Mortgage File for the Replacement Mortgage Loan containing the documents set forth in Section 2.01 along with a written certification certifying as to the delivery of such Mortgage File and containing the granting language set forth in the first sentence of Section 2.01; and (ii) the Depositor will be deemed to have made, with respect to such Replacement Mortgage Loan, each of the representations and warranties made by it with respect to the related Deleted Mortgage Loan. The Trustee shall review the Mortgage File with respect to each Replacement Mortgage Loan and certify to the NIMs Insurer and the Depositor that all documents required by Section 2.01 have been executed and received. For any month in which the Seller substitutes one or more Replacement Mortgage Loans for one or more Deleted Mortgage Loans, the Seller will determine the amount (if any) by which the aggregate principal balance of all such Replacement Mortgage Loans as of the date of substitution and the aggregate prepayment penalties with respect to such Replacement Mortgage Loans is less than the aggregate Stated Principal Balance (after application of the principal portion of the Scheduled Payment due in the month of substitution) and aggregate prepayment penalties of all such Deleted Mortgage Loans. An amount equal to the aggregate of the deficiencies described in the preceding sentence (such amount, the "Substitution Adjustment Amount") shall be delivered by the Seller to the Servicer for deposit into the Collection Account on the Determination Date for the Distribution Date relating to the Prepayment Period during which the related Mortgage Loan became required to be purchased or replaced hereunder. Notwithstanding any other provision of this Agreement, the right to substitute Mortgage Loans pursuant to this Article II shall be subject to the additional limitations that no substitution of a Replacement Mortgage Loan for a Deleted Mortgage Loan shall be made unless the Trustee and the NIMs Insurer have received an Opinion of Counsel addressed to the Trustee and the NIMs Insurer (at the expense of the party seeking to make the substitution) that, under current law, such substitution will not (A) affect adversely the status of any REMIC established hereunder as a REMIC, or of the related "regular interests" as "regular interests" in any such REMIC, or (B) cause any such REMIC to engage in a "prohibited transaction" or prohibited contribution pursuant to the REMIC Provisions. The Seller shall give or cause to be given written notice to the Certificateholders and the NIMS Insurer that such substitution has taken place, shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Replacement Mortgage Loan or Replacement Mortgage Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the NIMS Insurer and the Trustee. Upon such substitution by the Seller, such Replacement Mortgage Loan or Replacement Mortgage Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and the Sale Agreement, including all applicable representations and warranties thereof included in the Sale Agreement as of the date of substitution. In addition, the Seller shall obtain at its own expense and deliver to the Trustee and the NIMS Insurer an Opinion of Counsel addressed to the Trustee and the NIMs Insurer to the effect that such substitution will not (a) cause any federal tax to be imposed on the Trust Fund or any REMIC provided for herein, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup date" under Section 860G(d)(1) of the Code or (b) adversely affect the status of any REMIC provided for herein as a REMIC. If any such Opinion of Counsel can not be delivered, then such substitution may only be effected at such time as the required Opinion of Counsel can be given.
(d) It is understood and agreed that the representations, warranties and indemnification (i) set forth in Section 2.03 and (ii) of the Seller and the Depositor set forth in the Sale Agreement and assigned to the Trustee by the Depositor hereunder shall each survive delivery of the Mortgage Files and the Assignment of Mortgage of each Mortgage Loan to the Trustee and shall continue throughout the term of this Agreement.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Merrill Lynch Mort Inv Inc Mort Ln Ast BCK CTS Ser 2003-Bc1), Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Inc)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, warrants and covenants to the Trustee, for its own benefit and the benefit of the Certificateholders, and to the Master Servicer and the Special Servicer, as of the Closing Date, that:
(i) The Depositor is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full power and authority to enter into and consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and delivery by each of the other parties hereto, constitutes a valid, legal and binding obligation of the Depositor, enforceable against the Depositor in accordance with the terms hereof, subject to (A) applicable bankruptcy, insolvency, reorganization, moratorium and other laws affecting the enforcement of creditors' rights generally, and (B) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law.
(v) The Depositor is not in violation of, and its execution and delivery of this Agreement and its performance and compliance with the terms of this Agreement will not constitute a violation of, any law, any order or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Depositor's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(vi) The transfer of the Trust Mortgage Loans to the Trustee as contemplated herein requires no regulatory approval, other than any such approvals as have been obtained, and is not subject to any bulk transfer or similar law in effect in any applicable jurisdiction.
(vii) The Depositor is not transferring the Trust Mortgage Loans to the Trustee with any intent to hinder, delay or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left with unreasonably small assets or capital with which to engage in and conduct its business.
(x) The Depositor 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.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xii) No litigation is pending or, to the best of the Depositor's knowledge, threatened against the Depositor that, if determined adversely to the Depositor, would prohibit the Depositor from entering into this Agreement or that, in the Depositor's good faith and reasonable judgment, is likely to materially and adversely affect either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(xiii) Except for any actions that are the express responsibility of another party hereunder or under the Mortgage Loan Purchase Agreements, and further except for actions that the Depositor is expressly permitted to complete subsequent to the Closing Date, the Depositor has taken all actions required under applicable law to effectuate the transfer of the Trust Mortgage Loans by the Depositor to the Trustee.
(xiv) Immediately If the Trust Fund includes any Non-Xxxxxx Trust Mortgage Loans, then immediately prior to the transfer of the UBS Non-Xxxxxx Trust Mortgage Loans to the Trust pursuant to this Agreement (and assuming that the UBS related Unaffiliated Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Non-Xxxxxx Trust Mortgage Loan, free and clear of all liens, claims, encumbrances and other interests), (A) the Depositor had good and marketable title to, and was the sole owner and holder of, each UBS Non-Xxxxxx Trust Mortgage Loan; , and (B) the Depositor has full right and authority to sell, assign and transfer the UBS each Non-Xxxxxx Trust Mortgage LoansLoan, exclusive of the servicing rights pertaining thereto.
(b) The Depositor hereby makes to the Trustee, for the Trustee's own benefit and the benefit of the Certificateholders, with respect to each Xxxxxx Trust Mortgage Loan only, the representations and warranties shown on Schedule II hereto, as of the Closing Date or such other date specified in the particular representation and warranty, subject to the exceptions set forth on Schedule III hereto (the headings set forth in Schedule II hereto with respect to each representation and warranty being for convenience of reference only and in no way limiting, expanding or otherwise affecting the scope or subject matter thereof). Except as expressly provided in Section 2.04(a), the Depositor does not make any representations or warranties regarding the UBS Non-Xxxxxx Trust Mortgage Loans.
(c) The representations, warranties and covenants of the Depositor set forth in or made pursuant to Section 2.04(a) and Section 2.04(b) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any breach of any of such representations, warranties and covenants, the party discovering such breach shall give prompt written notice thereof to the other parties.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (LB Commercial Mortgage Trust 2007-C3), Pooling and Servicing Agreement (LB Commercial Mortgage Trust 2007-C3)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, represents and warrants and covenants to the TrusteeNIMs Insurer, for its own benefit and the benefit of the Certificateholders, and to the Master Servicer and the Special ServicerTrustee as follows, as of the Closing Date, thatdate hereof:
(i) The Depositor is duly organized and is validly existing as a corporation duly organized, validly existing and in good standing under the laws of the State of DelawareDelaware and has full power and authority (corporate and other) 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 and the Sale Agreement.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full corporate power and authority to execute, deliver and perform, and to enter into and consummate all the transactions contemplated by by, this Agreement, Agreement and the Sale Agreement and has duly authorized authorized, by all necessary corporate action on its part, the execution, delivery and performance of this Agreement and the Sale Agreement, ; and has duly executed this Agreement and delivered this Agreement.
(iv) This the Sale Agreement, assuming the due authorization, execution and delivery hereof by each of the other parties hereto, constitutes a validlegal, legal valid and binding obligation of the Depositor, enforceable against the Depositor in accordance with the terms hereofits terms, subject subject, as to enforceability, to (Ai) applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally, generally and (Bii) general principles of equity, regardless of whether such enforcement is considered sought in a proceeding in equity or at law.
(viii) The Depositor is not in violation of, and its execution and delivery of this Agreement and its performance the Sale Agreement by the Depositor, the consummation of the transactions contemplated by this Agreement and the Sale Agreement, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Depositor and will not (A) result in a material breach of any term or provision of the charter or by-laws of the Depositor or (B) materially conflict with, result in a violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Depositor is a party or by which it may be bound or (C) constitute a material violation of any statute, order or regulation applicable to the Depositor of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Depositor; and the Depositor is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Depositor's ability to perform or meet any of its obligations under this Agreement.
(iv) No litigation is pending, or, to the best of the Depositor's knowledge, threatened, against the Depositor that would materially and adversely affect the execution, delivery or enforceability of this Agreement will not constitute a violation of, any law, any order and the Sale Agreement or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Depositor's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Depositor to perform its obligations under this Agreement or and the financial condition of Sale Agreement in accordance with the Depositorterms hereof.
(viv) The transfer No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Depositor of, or compliance by the Depositor with, this Agreement and the Sale Agreement or the consummation of the Trust Mortgage Loans to the Trustee as transactions contemplated herein requires no regulatory hereby, or if any such consent, approval, other than any such approvals as have been obtainedauthorization or order is required, and is not subject to any bulk transfer or similar law in effect in any applicable jurisdiction.
(vii) the Depositor has obtained the same. The Depositor is not transferring the Trust Mortgage Loans hereby represents and warrants to the Trustee with any intent respect to hinder, delay or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left with unreasonably small assets or capital with which to engage in and conduct its business.
(x) The Depositor 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.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xii) No litigation is pending or, to the best of the Depositor's knowledge, threatened against the Depositor that, if determined adversely to the Depositor, would prohibit the Depositor from entering into this Agreement or that, in the Depositor's good faith and reasonable judgment, is likely to materially and adversely affect either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(xiii) Except for any actions that are the express responsibility of another party hereunder or under the each Mortgage Loan Purchase Agreements, and further except for actions that the Depositor is expressly permitted to complete subsequent to as of the Closing Date, the Depositor has taken all actions required under applicable law to effectuate and following the transfer of the Trust Mortgage Loans by the Depositor to the Trustee.
(xiv) Immediately prior to the transfer of the UBS Trust Mortgage Loans to it by the Trust pursuant to this Agreement (and assuming that the UBS Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Trust Mortgage LoanSponsor, free and clear of all liens, claims, encumbrances and other interests), (A) the Depositor had good title to the Mortgage Loans and marketable title tothe Mortgage Notes were subject to no offsets, and was the sole owner and holder ofclaims, each UBS Trust Mortgage Loan; and (B) the Depositor has full right and authority to sellliens, assign and transfer the UBS Trust Mortgage Loansmortgage, exclusive of the servicing rights pertaining theretopledge, charge, security interest, defenses or counterclaims.
(b) The Depositor hereby makes to the Trustee, for the Trustee's own benefit representations and the benefit warranties of the Certificateholders, each Transferor with respect to each Xxxxxx Trust the related Mortgage Loan onlyLoans in the applicable Transfer Agreement, which have been assigned to the Trustee hereunder, were made as of the date specified in the applicable Transfer Agreement and brought forward to the Closing Date pursuant to the related Bring Down Letter. The representations and warranties shown on Schedule II hereto, of each Transferor with respect to the Mortgage Loans contained in the Bring Down Letter were made as of the Closing Date or such other date specified Date. The representations and warranties of the Sponsor with respect to the Mortgage Loans contained in the particular Sale Agreement were made as of the Closing Date. To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of both (i) a representation or warranty of the applicable Transferor under the applicable Transfer Agreement or Bring Down Letter and warranty(ii) a representation or warranty of the Sponsor under the Sale Agreement, subject to the exceptions set forth on Schedule III hereto (obligations of the headings Sponsor under the Sale Agreement shall be enforced against the Transferor or the Sponsor, as applicable, as set forth in Schedule II hereto the Sale Agreement. The Trustee is hereby directed to and does acknowledge that the Sponsor shall have no obligation or liability with respect to each any breach of a representation and or warranty being for convenience of reference only and in no way limiting, expanding or otherwise affecting the scope or subject matter thereof). Except as expressly provided in Section 2.04(a), the Depositor does not make made by it with respect to any representations or warranties regarding the UBS Trust related Mortgage Loans.
(c) The representations, warranties and covenants of the Depositor except as otherwise set forth in the Sale Agreement, if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made pursuant by the related Transferor in the related Transfer Agreement or Bring Down Letter, without regard to Section 2.04(a) and Section 2.04(b) whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty. The Trustee also acknowledges that the Sponsor shall survive have no obligation or liability with respect to any breach of a representation or warranty made solely by the execution and delivery of this Agreement and shall inure Transferors with respect to the benefit Mortgage Loans, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty. The Trustee further acknowledges that the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of Depositor shall have no obligation or liability with respect to any breach of any of such representations, warranties and covenants, the party discovering such breach shall give prompt written notice thereof representation or warranty with respect to the other partiesMortgage Loans (except as set forth in Section 2.03(a)(v)) under any circumstances.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Mortgage Loan Asset-Backed Certificates, Series 2006-He3), Pooling and Servicing Agreement (Mortgage Loan Asset-Backed Certificates, Series 2006-He2)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, warrants and covenants to the Trustee, for its own benefit and the benefit of the Certificateholders, Certificateholders and to the Fiscal Agent, the Master Servicer, the Special Servicer and the Special ServicerCompanion Loan Noteholders, as of the Closing Date, that:
(i) The Depositor is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full power and authority taken all necessary corporate action to enter into and consummate all transactions contemplated by this Agreement, has duly authorized authorize the execution, delivery and performance of this AgreementAgreement by it, and has duly executed the power and delivered authority to execute, deliver and perform this Agreement and all the transactions contemplated hereby, including, but not limited to, the power and authority to sell, assign and transfer the Mortgage Loans in accordance with this Agreement.;
(ivii) This Agreement, assuming Assuming the due authorization, execution and delivery of this Agreement by each other party hereto, this Agreement and all of the other parties heretoobligations of the Depositor hereunder are the legal, constitutes a valid, legal valid and binding obligation obligations of the Depositor, enforceable against the Depositor in accordance with the terms hereofof this Agreement, subject to (A) applicable except as such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium and reorganization or other similar laws affecting the enforcement of creditors' rights generally, and (B) by general principles of equity, equity (regardless of whether such enforcement enforceability is considered in a proceeding in equity or at law.);
(viii) The Depositor is not in violation of, and its execution and delivery of this Agreement and the performance of its performance and compliance with obligations hereunder by the terms of this Agreement Depositor will not conflict with any provisions of any law or regulations to which the Depositor is subject, or conflict with, result in a breach of or constitute a violation ofdefault under any of the terms, conditions or provisions of the certificate of incorporation or the by-laws of the Depositor or any lawindenture, agreement or instrument to which the Depositor is a party or by which it is bound, or any order or decree applicable to the Depositor, or result in the creation or imposition of any court or arbiter, or lien on any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Depositor's good faith and reasonable judgmentassets or property, is likely to affect which would materially and adversely either affect the ability of the Depositor to perform its obligations under carry out the transactions contemplated by this Agreement Agreement; the Depositor has obtained any consent, approval, authorization or order of any court or governmental agency or body required for the financial condition execution, delivery and performance by the Depositor of the Depositor.this Agreement;
(viiv) The transfer of the Trust Mortgage Loans to the Trustee as contemplated herein requires There is no regulatory approvalaction, other than any such approvals as have been obtained, and is not subject to any bulk transfer suit or similar law in effect in any applicable jurisdiction.
(vii) The Depositor is not transferring the Trust Mortgage Loans to the Trustee with any intent to hinder, delay or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left with unreasonably small assets or capital with which to engage in and conduct its business.
(x) The Depositor 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.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xii) No litigation is proceeding pending or, to the best of the Depositor's knowledge, threatened against the Depositor that, if determined adversely to the Depositor, in any court or by or before any other governmental agency or instrumentality which would prohibit the Depositor from entering into this Agreement or that, in the Depositor's good faith and reasonable judgment, is likely to materially and adversely affect either the validity of the Mortgage Loans or the ability of the Depositor to perform its obligations under carry out the transactions contemplated by this Agreement or Agreement; and
(v) The Depositor is the financial condition lawful owner of the Depositor.
(xiii) Except for any actions that are the express responsibility of another party hereunder or under the Mortgage Loan Purchase Agreements, and further except for actions that the Depositor is expressly permitted to complete subsequent to the Closing Date, the Depositor has taken all actions required under applicable law to effectuate the transfer of the Trust Mortgage Loans by the Depositor to the Trustee.
(xiv) Immediately prior to the transfer of the UBS Trust Mortgage Loans to the Trust pursuant to this Agreement (and assuming that the UBS Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Trust Mortgage Loan, free and clear of all liens, claims, encumbrances and other interests), (A) interests with the Depositor had good and marketable title to, and was the sole owner and holder of, each UBS Trust Mortgage Loan; and (B) the Depositor has full right and authority to sell, assign and transfer the UBS Trust Mortgage Loans, exclusive of the servicing rights pertaining thereto.
(b) The Depositor hereby makes Loans to the Trustee, for the Trustee's own benefit Trust and the benefit of the Certificateholders, with respect to each Xxxxxx Trust Mortgage Loan only, the representations and warranties shown on Schedule II hereto, as of the Closing Date or such other date specified in the particular representation and warranty, subject Loans have been validly transferred to the exceptions set forth on Schedule III hereto (the headings set forth in Schedule II hereto with respect to each representation and warranty being for convenience of reference only and in no way limiting, expanding or otherwise affecting the scope or subject matter thereof)Trust. Except as expressly provided in Section 2.04(a), the Depositor does not make any representations or warranties regarding the UBS Trust Mortgage Loans.
(c) The representations, warranties and covenants of the Depositor set forth in or made pursuant to this Section 2.04(a) and Section 2.04(b) 2.04 shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any breach of any of such representations, warranties and covenants, the party discovering such breach shall give prompt written notice thereof to the other parties.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Greenwich Capital Commercial Funding Corp. Commercial Mortgage Pass-Through Certificates Series 2004-Gg1), Pooling and Servicing Agreement (GCCFC 2005-Gg3)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, warrants and covenants to the Indenture Trustee, for its own benefit the Issuing Entity, the Swap Provider, the Sponsor and the benefit of the Certificateholders, and to the Master Servicer and the Special Servicer, that as of the Closing date of this Agreement or as of such date specifically provided herein, and as of each subsequent Transfer Date, that:
(ia) The Depositor is a corporation Maryland real estate investment trust duly organized, validly existing and in good standing under the laws of the State of DelawareMaryland.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iiib) The Depositor has the full trust power and authority to convey the Mortgage Loans and to execute, deliver and perform, and to enter into and consummate all the transactions contemplated by this Agreement, and each Depositor’s Subsequent Transfer Instrument.
(c) This Agreement has been duly authorized the executionand validly authorized, delivery and performance of this Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreementby the Depositor, all requisite corporate action having been taken, and, assuming the due authorization, execution and delivery hereof by each of the other parties hereto, constitutes a validor will constitute the legal, legal valid and binding obligation agreement of the Depositor, enforceable against the Depositor in accordance with the terms hereofits terms, subject to (A) applicable except as such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium and or other similar laws relating to or affecting the enforcement rights of creditors' rights creditors generally, and by general equity principles (B) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law).
(vd) No consent, approval, authorization or order of or registration or filing with, or notice to, any governmental authority or court is required for the execution, delivery and performance of or compliance by the Depositor with this Agreement or the consummation by the Depositor of any of the transactions contemplated hereby, except as have been made on or prior to the Closing Date.
(e) None of the execution and delivery of this Agreement or of each Depositor’s Subsequent Transfer Instrument, the consummation of the transactions contemplated hereby or thereby, or the fulfillment of or compliance with the terms and conditions of this Agreement, or of each Depositor’s Subsequent Transfer Instrument by the Depositor (i) conflicts or will conflict with or results or will result in a breach of, or constitutes or will constitute a default or results or will result in an acceleration under (A) the certificate of trust or bylaws of the Depositor, or (B) of any term, condition or provision of any material indenture, deed of trust, contract or other agreement or instrument to which the Depositor or any of its subsidiaries is a party or by which it or any of its subsidiaries is bound; (ii) results or will result in a violation of any law, rule, regulation, order, judgment or decree applicable to the Depositor of any court or governmental authority having jurisdiction over the Depositor or its subsidiaries; or (iii) results in the creation or imposition of any lien, charge or encumbrance which would have a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loans.
(f) Except as set forth in the Prospectus Supplement under the heading “Risk Factors,” there are no actions, suits or proceedings before or against or investigations of, the Depositor pending, or to the knowledge of the Depositor, threatened, before any court, administrative agency or other tribunal, and no notice of any such action, which, in the Depositor’s reasonable judgment, might materially and adversely affect the performance by the Depositor of its obligations under this Agreement, or the validity or enforceability of this Agreement.
(g) The Depositor is not in violation of, and its execution and delivery of this Agreement and its performance and compliance default with the terms of this Agreement will not constitute a violation of, any law, respect to any order or decree of any court or arbiter, or any order, regulation or demand of any federal, state state, municipal or local governmental or regulatory authority, which violation, in the Depositor's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(vi) The transfer of the Trust Mortgage Loans to the Trustee as contemplated herein requires no regulatory approval, other than any such approvals as have been obtained, and is not subject to any bulk transfer or similar law in effect in any applicable jurisdiction.
(vii) The Depositor is not transferring the Trust Mortgage Loans to the Trustee with any intent to hinder, delay or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left with unreasonably small assets or capital with which to engage in and conduct its business.
(x) The Depositor does not intend to, and does not believe agency that it will, incur debts or obligations beyond its ability to pay such debts and obligations as they mature.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xii) No litigation is pending or, to the best of the Depositor's knowledge, threatened against the Depositor that, if determined adversely to the Depositor, would prohibit the Depositor from entering into this Agreement or that, in the Depositor's good faith and reasonable judgment, is likely to may materially and adversely affect either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositorperformance hereunder.
(xiii) Except for any actions that are the express responsibility of another party hereunder or under the Mortgage Loan Purchase Agreements, and further except for actions that the Depositor is expressly permitted to complete subsequent to the Closing Date, the Depositor has taken all actions required under applicable law to effectuate the transfer of the Trust Mortgage Loans by the Depositor to the Trustee.
(xiv) Immediately prior to the transfer of the UBS Trust Mortgage Loans to the Trust pursuant to this Agreement (and assuming that the UBS Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Trust Mortgage Loan, free and clear of all liens, claims, encumbrances and other interests), (A) the Depositor had good and marketable title to, and was the sole owner and holder of, each UBS Trust Mortgage Loan; and (B) the Depositor has full right and authority to sell, assign and transfer the UBS Trust Mortgage Loans, exclusive of the servicing rights pertaining thereto.
(bh) The Depositor hereby makes covenants that it has filed a federal income tax return for its taxable year ending December 31, 2004 on Internal Revenue Service Form 1120 REIT on which the Depositor elected to be taxed as a REIT. The Depositor hereby represents that it has been organized in conformity with the Trusteerequirements for qualification for taxation as a REIT and hereby covenants that it at all times the Depositor owns Trust Certificates, for either directly, or indirectly through one or more Qualified REIT Subsidiaries, will conduct its operations so as to qualify as a REIT. If, at any time the Trustee's own benefit and the benefit of the CertificateholdersDepositor owns Trust Certificates, with respect to each Xxxxxx Trust Mortgage Loan onlyeither directly, the representations and warranties shown on Schedule II hereto, as of the Closing Date or such other date specified in the particular representation and warranty, subject to the exceptions set forth on Schedule III hereto (the headings set forth in Schedule II hereto with respect to each representation and warranty being for convenience of reference only and in no way limiting, expanding indirectly through one or otherwise affecting the scope or subject matter thereof). Except as expressly provided in Section 2.04(a)more Qualified REIT Subsidiaries, the Depositor does not make any representations or warranties regarding determines that is has failed to qualify as a REIT, the UBS Trust Mortgage Loans.
(c) The Depositor shall, within 30 days of such discovery, notify the Indenture Trustee of such failure. It is understood and agreed that the representations, warranties and covenants of the Depositor set forth in or made pursuant to this Section 2.04(a) and Section 2.04(b) 3.06 shall survive the execution and delivery of this Agreement the respective Indenture Trustee’s Mortgage Files to the Indenture Trustee and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any breach of any of such representations, warranties and covenants, the party discovering such breach shall give prompt written notice thereof to the other partiesIndenture Trustee.
Appears in 2 contracts
Samples: Sale and Servicing Agreement, Sale and Servicing Agreement (Accredited Mortgage Loan Trust 2006-2)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, represents and warrants and covenants to the TrusteeServicer, for its own benefit the Master Servicer, the Securities Administrator, the Seller and the benefit of the Certificateholders, and to the Master Servicer and the Special ServicerTrustee as follows, as of the Closing Date, thatdate hereof:
(i) The Depositor is duly organized and is validly existing as a corporation duly organized, validly existing and in good standing under the laws of the State of DelawareDelaware and has full power and authority (corporate and other) 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 and the Sale Agreement.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full corporate power and authority to execute, deliver and perform, and to enter into and consummate all the transactions contemplated by by, this Agreement, Agreement and the Sale Agreement and has duly authorized authorized, by all necessary corporate action on its part, the execution, delivery and performance of this Agreement and the Sale Agreement, ; and has duly executed this Agreement and delivered this Agreement.
(iv) This the Sale Agreement, assuming the due authorization, execution and delivery hereof by each of the other parties hereto, constitutes a validlegal, legal valid and binding obligation of the Depositor, enforceable against the Depositor in accordance with the terms hereofits terms, subject subject, as to enforceability, to (Ai) applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally, generally and (Bii) general principles of equity, regardless of whether such enforcement is considered sought in a proceeding in equity or at law.
(viii) The Depositor is not in violation of, and its execution and delivery of this Agreement and its performance the Sale Agreement by the Depositor, the consummation of the transactions contemplated by this Agreement and the Sale Agreement, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Depositor and will not (A) result in a material breach of any term or provision of the charter or by-laws of the Depositor or (B) materially conflict with, result in a violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Depositor is a party or by which it may be bound or (C) constitute a material violation of any statute, order or regulation applicable to the Depositor of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Depositor; and the Depositor is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Depositor's ability to perform or meet any of its obligations under this Agreement.
(iv) No litigation is pending, or, to the best of the Depositor's knowledge, threatened, against the Depositor that would materially and adversely affect the execution, delivery or enforceability of this Agreement will not constitute a violation of, any law, any order and the Sale Agreement or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Depositor's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Depositor to perform its obligations under this Agreement or and the financial condition of Sale Agreement in accordance with the Depositorterms hereof.
(viv) The transfer No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Depositor of, or compliance by the Depositor with, this Agreement and the Sale Agreement or the consummation of the Trust Mortgage Loans to the Trustee as transactions contemplated herein requires no regulatory hereby, or if any such consent, approval, other than any such approvals as have been obtainedauthorization or order is required, and is not subject to any bulk transfer or similar law in effect in any applicable jurisdiction.
(vii) the Depositor has obtained the same. The Depositor is not transferring the Trust Mortgage Loans hereby represents and warrants to the Trustee with any intent respect to hinder, delay each Mortgage Loan as of the Closing Date (or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior tothe Subsequent Transfer Date with respect to Subsequent Mortgage Loans), and will not be rendered insolvent by, its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left with unreasonably small assets or capital with which to engage in and conduct its business.
(x) The Depositor 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.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xii) No litigation is pending or, to the best of the Depositor's knowledge, threatened against the Depositor that, if determined adversely to the Depositor, would prohibit the Depositor from entering into this Agreement or that, in the Depositor's good faith and reasonable judgment, is likely to materially and adversely affect either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(xiii) Except for any actions that are the express responsibility of another party hereunder or under the Mortgage Loan Purchase Agreements, and further except for actions that the Depositor is expressly permitted to complete subsequent to the Closing Date, the Depositor has taken all actions required under applicable law to effectuate following the transfer of the Trust Mortgage Loans by the Depositor to the Trustee.
(xiv) Immediately prior to the transfer of the UBS Trust Mortgage Loans to it by the Trust pursuant to this Agreement (and assuming that the UBS Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Trust Mortgage LoanSeller, free and clear of all liens, claims, encumbrances and other interests), (A) the Depositor had good title to the Mortgage Loans and marketable title tothe Mortgage Notes were subject to no offsets, and was the sole owner and holder ofclaims, each UBS Trust Mortgage Loan; and (B) the Depositor has full right and authority to sellliens, assign and transfer the UBS Trust Mortgage Loansmortgage, exclusive of the servicing rights pertaining theretopledge, charge, security interest, defenses or counterclaims.
(b) The Depositor hereby makes to the Trustee, for the Trustee's own benefit representations and the benefit warranties of the Certificateholders, each Transferor with respect to each Xxxxxx Trust the related Mortgage Loan onlyLoans in the applicable Transfer Agreement, which have been assigned to the representations and warranties shown on Schedule II heretoTrustee hereunder, were made as of the Closing Date or such other date specified in the particular representation and warrantyapplicable Transfer Agreement (or underlying agreement, subject to if such Transfer Agreement is in the exceptions set forth on Schedule III hereto (form of an assignment of a prior agreement). To the headings set forth in Schedule II hereto extent that any fact, condition or event with respect to each a Mortgage Loan constitutes a breach of both (i) a representation or warranty of the applicable Transferor under the applicable Transfer Agreement and (ii) a representation or warranty being for convenience of reference only and in no way limiting, expanding or otherwise affecting the scope or subject matter thereof). Except as expressly provided in Section 2.04(a)Seller under the Sale Agreement, the Depositor obligations of the Seller under the Sale Agreement shall be enforced and to the extent the Seller does not make fulfill its contracted obligations then the obligations of the applicable Transferor shall be enforced under any representations applicable representation or warranties regarding warranty made by it. The Trustee further acknowledges that the UBS Trust Depositor shall have no obligation or liability with respect to any breach of any representation or warranty with respect to the Mortgage LoansLoans under any circumstances.
(c) The representations, warranties and covenants of the Depositor set forth in or made pursuant to Section 2.04(a) and Section 2.04(b) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any the Depositor, the Master Servicer, the Servicer, the Securities Administrator or the Trustee of a breach of any of such representationsrepresentations and warranties that adversely and materially affects the value of the related Mortgage Loan, warranties and covenantsprepayment charges or the interests of the Certificateholders, the party discovering such breach shall give prompt written notice thereof to the other parties. Within 90 days of the discovery of such breach of any representation or warranty, the applicable Transferor or the Seller, as applicable, shall either (a) cure such breach in all material respects, (b) repurchase such Mortgage Loan or any property acquired in respect thereof from the Trustee at the Purchase Price or (c) within the two year period following the Closing Date, substitute a Replacement Mortgage Loan for the affected Mortgage Loan. In the event of discovery of a breach of any representation and warranty of any Transferor or the Seller, the Trustee's rights shall be enforced under the applicable Transfer Agreement and the Sale Agreement for the benefit of Certificateholders. If a breach of the representations and warranties set forth in the Transfer Agreement hereof exists solely due to the unenforceability of a prepayment charge, the Trustee or the other party having notice thereof shall notify the Servicer thereof and not seek to enforce the repurchase remedy provided for herein unless such Mortgage Loan is not current. In the event of a breach of the representations and warranties with respect to the Mortgage Loans set forth in a Transfer Agreement, the Trustee shall enforce the right of the Trust Fund to be indemnified for such breach of representation and warranty. In the event that such breach relates solely to the unenforceability of a prepayment charge, amounts received in respect of such indemnity up to the amount of such prepayment charge shall be distributed pursuant to Section 5.05(i). As provided in the Sale Agreement, if the Transferor substitutes for a Mortgage Loan for which there is a breach of any representations and warranties in the related Transfer Agreement which adversely and materially affects the value of such Mortgage Loan and such substitute mortgage loan is not a Replacement Mortgage Loan, under the terms of the Sale Agreement, the Seller will, in exchange for such substitute Mortgage Loan, (i) provide the applicable Purchase Price for the affected Mortgage Loan or (ii) within two years of the Closing Date, substitute such affected Mortgage Loan with a Replacement Mortgage Loan. Any such substitution shall not be effected prior to the additional delivery to the Trustee of a Request for Release substantially in the form of Exhibit I and shall not be effected unless it is within two years of the Startup Day. The Seller indemnifies and holds the Trust Fund, the Trustee, the Securities Administrator, the Depositor, the Master Servicer, the Servicer and each Certificateholder harmless against any and all taxes, claims, losses, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, fees and expenses that the Trust Fund, the Trustee, the Securities Administrator, the Depositor, the Master Servicer, the Servicer and any Certificateholder may sustain in connection with any actions of the Seller relating to a repurchase of a Mortgage Loan other than in compliance with the terms of this Section 2.03 and the Sale Agreement, to the extent that any such action causes (i) any federal or state tax to be imposed on the Trust Fund or any REMIC provided for herein, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup day" under Section 860(d)(1) of the Code, or (ii) any REMIC created hereunder to fail to qualify as a REMIC at any time that any Certificate is outstanding. In furtherance of the foregoing, if the Transferor or the Seller, as applicable, is not a member of MERS and repurchases a Mortgage Loan which is registered on the MERS System, the Transferor or the Seller, as applicable, at its own expense and without any right of reimbursement, shall cause MERS to execute and deliver an assignment of the Mortgage in recordable form to transfer the Mortgage from MERS to the Transferor or the Seller, as applicable, and shall cause such Mortgage to be removed from registration on the MERS System in accordance with MERS' rules and regulations. With respect to any Mortgage Loan repurchased by the Seller pursuant to the Sale Agreement or by any Transferor pursuant to the applicable Transfer Agreement, the principal portion of the funds received by the Securities Administrator, in respect of such repurchase of a Mortgage Loan will be considered a Principal Prepayment and shall be deposited in the Certificate Account pursuant to Section 3.05. The Trustee, upon receipt of notice from the Securities Administrator of its receipt of the full amount of the Purchase Price for a Deleted Mortgage Loan, or upon receipt of the Mortgage File for a Replacement Mortgage Loan substituted for a Deleted Mortgage Loan, shall release or cause to be released and reassign to the Seller or the applicable Transferor, as applicable, the related Mortgage File for the Deleted Mortgage Loan and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation or warranty, as shall be necessary to vest in such party or its designee or assignee title to any Deleted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Seller, and neither the Trustee nor the Securities Administrator shall have any further responsibility with respect to the Mortgage File relating to such Deleted Mortgage Loan. With respect to each Replacement Mortgage Loan to be delivered to the Trustee (or the Custodian) pursuant to the terms of this Article II in exchange for a Deleted Mortgage Loan: (i) the applicable Transferor or the Seller, as applicable, must deliver to the Trustee (or its custodian) the Mortgage File for the Replacement Mortgage Loan containing the documents set forth in Section 2.01 along with a written certification certifying as to the Mortgage Loan satisfying all requirements under the definition of Replacement Mortgage Loan and the delivery of such Mortgage File and containing the granting language set forth in Section 2.01; and (ii) the Depositor will be deemed to have made, with respect to such Replacement Mortgage Loan, each of the representations and warranties made by it with respect to the related Deleted Mortgage Loan. The Custodian shall review the Mortgage File with respect to each Replacement Mortgage Loan and certify to the Depositor that all documents required by Section 2.01 have been executed and received. For any month in which the Seller substitutes one or more Replacement Mortgage Loans for one or more Deleted Mortgage Loans, the Seller will determine the amount (if any) by which the aggregate principal balance of all such Replacement Mortgage Loans as of the date of substitution and the aggregate prepayment penalties with respect to such Replacement Mortgage Loans is less than the aggregate Stated Principal Balance (after application of the principal portion of the Scheduled Payment due in the month of substitution) and aggregate prepayment penalties of all such Deleted Mortgage Loans. An amount equal to the aggregate of the deficiencies described in the preceding sentence (such amount, the "Substitution Adjustment Amount") shall be deposited into the Certificate Account by the Seller on the Determination Date for the Distribution Date relating to the Prepayment Period during which the related Mortgage Loan became required to be purchased or replaced hereunder. Notwithstanding any other provision of this Agreement, the right to substitute Mortgage Loans pursuant to this Article II shall be subject to the additional limitations that no substitution of a Replacement Mortgage Loan for a Deleted Mortgage Loan shall be made unless the Securities Administrator shall have received an Opinion of Counsel (at the expense of the party seeking to make the substitution) that, under current law, such substitution will not (A) affect adversely the status of any REMIC established hereunder as a REMIC, or of the related "regular interests" as "regular interests" in any such REMIC, or (B) cause any such REMIC to engage in a "prohibited transaction" or prohibited contribution pursuant to the REMIC Provisions. The Servicer shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Replacement Mortgage Loan or Replacement Mortgage Loans. Upon such substitution by the Seller, such Replacement Mortgage Loan or Replacement Mortgage Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and the Sale Agreement, including all applicable representations and warranties thereof included in the Sale Agreement as of the date of substitution.
(d) It is understood and agreed that the representations, warranties and indemnification (i) set forth in this Section 2.03, (ii) of the Seller and the Depositor set forth in the Sale Agreement and assigned to the Trustee by the Depositor hereunder and (iii) of each Transferor, assigned by the Seller to the Depositor pursuant to the Sale Agreement and assigned to the Trustee by the Depositor hereunder shall each survive delivery of the Mortgage Files and the Assignment of Mortgage of each Mortgage Loan to the Trustee and shall continue throughout the term of this Agreement.
(e) The Depositor shall deliver a copy of the Mortgage Loan Schedule to the Servicer on the Closing Date (or the Subsequent Transfer Date with respect to Subsequent Mortgage Loans).
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Terwin Mortgage Trust, Series TMTS 2004-22sl)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, represents and warrants and covenants to the TrusteeServicer, for its own benefit the Trustee and the benefit of the Certificateholders, and to the Master Servicer and the Special ServicerNIMs Insurer as follows, as of the Closing Date, thatdate hereof:
(i) The Depositor is duly organized and is validly existing as a corporation duly organized, validly existing and in good standing under the laws of the State of DelawareDelaware and has full power and authority (corporate and other) 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 and the Sale Agreement.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full corporate power and authority to execute, deliver and perform, and to enter into and consummate all the transactions contemplated by by, this Agreement, Agreement and the Sale Agreement and has duly authorized authorized, by all necessary corporate action on its part, the execution, delivery and performance of this Agreement and the Sale Agreement, ; and has duly executed this Agreement and delivered this Agreement.
(iv) This the Sale Agreement, assuming the due authorization, execution and delivery hereof by each of the other parties hereto, constitutes a validlegal, legal valid and binding obligation of the Depositor, enforceable against the Depositor in accordance with the terms hereofits terms, subject subject, as to enforceability, to (Ai) applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally, generally and (Bii) general principles of equity, regardless of whether such enforcement is considered sought in a proceeding in equity or at law.
(viii) The Depositor is not in violation of, and its execution and delivery of this Agreement and its performance the Sale Agreement by the Depositor, the consummation of the transactions contemplated by this Agreement and the Sale Agreement, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Depositor and will not (A) result in a material breach of any term or provision of the charter or by-laws of the Depositor or (B) materially conflict with, result in a violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Depositor is a party or by which it may be bound or (C) constitute a material violation of any statute, order or regulation applicable to the Depositor of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Depositor; and the Depositor is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Depositor's ability to perform or meet any of its obligations under this Agreement.
(iv) No litigation is pending, or, to the best of the Depositor's knowledge, threatened, against the Depositor that would materially and adversely affect the execution, delivery or enforceability of this Agreement will not constitute a violation of, any law, any order and the Sale Agreement or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Depositor's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Depositor to perform its obligations under this Agreement or and the financial condition of Sale Agreement in accordance with the Depositorterms hereof.
(viv) The transfer No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Depositor of, or compliance by the Depositor with, this Agreement and the Sale Agreement or the consummation of the Trust Mortgage Loans to the Trustee as transactions contemplated herein requires no regulatory hereby, or if any such consent, approval, other than any such approvals as have been obtainedauthorization or order is required, and is not subject to any bulk transfer or similar law in effect in any applicable jurisdiction.
(vii) the Depositor has obtained the same. The Depositor is not transferring the Trust Mortgage Loans hereby represents and warrants to the Trustee with any intent respect to hinder, delay or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left with unreasonably small assets or capital with which to engage in and conduct its business.
(x) The Depositor 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.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xii) No litigation is pending or, to the best of the Depositor's knowledge, threatened against the Depositor that, if determined adversely to the Depositor, would prohibit the Depositor from entering into this Agreement or that, in the Depositor's good faith and reasonable judgment, is likely to materially and adversely affect either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(xiii) Except for any actions that are the express responsibility of another party hereunder or under the each Mortgage Loan Purchase Agreements, and further except for actions that the Depositor is expressly permitted to complete subsequent to as of the Closing Date, the Depositor has taken all actions required under applicable law to effectuate and following the transfer of the Trust Mortgage Loans by the Depositor to the Trustee.
(xiv) Immediately prior to the transfer of the UBS Trust Mortgage Loans to it by the Trust pursuant to this Agreement (and assuming that the UBS Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Trust Mortgage LoanSeller, free and clear of all liens, claims, encumbrances and other interests), (A) the Depositor had good title to the Mortgage Loans and marketable title tothe Mortgage Notes were subject to no offsets, and was the sole owner and holder ofclaims, each UBS Trust Mortgage Loan; and (B) the Depositor has full right and authority to sellliens, assign and transfer the UBS Trust Mortgage Loansmortgage, exclusive of the servicing rights pertaining theretopledge, charge, security interest, defenses or counterclaims.
(b) The Depositor hereby makes to the Trustee, for the Trustee's own benefit representations and the benefit warranties of the Certificateholders, CIT and Fieldstone with respect to each Xxxxxx Trust the Mortgage Loan only, Loans contained in the related Transfer Agreement were made as of the date of the related Transfer Agreement and brought forward to the Closing Date pursuant to the related Bring Down Letter. The representations and warranties shown on Schedule II hereto, of CIT and Fieldstone with respect to the Mortgage Loans contained in the related Bring Down Letter were made as of the Closing Date or such other date specified in Date. The representations and warranties of the particular representation and warranty, subject to the exceptions set forth on Schedule III hereto (the headings set forth in Schedule II hereto Seller with respect to each the Mortgage Loans generally and with respect to the Mortgage Loans originated by Ownit contained in the Sale Agreement were made as of the Closing Date. To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of both (i) a representation or warranty of CIT or Fieldstone under the related Transfer Agreement and (ii) a representation or warranty being for convenience of reference only and in no way limiting, expanding or otherwise affecting the scope or subject matter thereof). Except as expressly provided in Section 2.04(a)Seller under the Sale Agreement, the Depositor does not make only right or remedy of the Trustee, the NIMs Insurer or of any representations Certificateholder shall be the Trustee's right to enforce the obligations of the Transferor under any applicable representation or warranties regarding warranty made by it. The Trustee acknowledges that the UBS Trust Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Mortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by CIT or Fieldstone in the related Transfer Agreement, without regard to whether the Transferor fulfills its contractual obligations in respect of such representation or warranty. The Trustee also acknowledges that the Seller shall have no obligation or liability with respect to any breach of a representation or warranty made solely by CIT or Fieldstone with respect to the Mortgage Loans.
(c) , without regard to whether the Transferor fulfills its contractual obligations in respect of such representation or warranty. The representations, warranties and covenants of Trustee further acknowledges that the Depositor set forth in shall have no obligation or made pursuant liability with respect to Section 2.04(a) and Section 2.04(b) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any breach of any of such representations, warranties and covenants, the party discovering such breach shall give prompt written notice thereof representation or warranty with respect to the other partiesMortgage Loans (except as set forth in Section 2.03(a)(v)) under any circumstances.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Inc)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, represents and warrants and covenants to the TrusteeServicer, for its own benefit the Trustee and the benefit of the Certificateholders, and to the Master Servicer and the Special ServicerNIMs Insurer as follows, as of the Closing Date, thatdate hereof:
(i) The Depositor is duly organized and is validly existing as a corporation duly organized, validly existing and in good standing under the laws of the State of DelawareDelaware and has full power and authority (corporate and other) 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 and the Sale Agreement.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full corporate power and authority to execute, deliver and perform, and to enter into and consummate all the transactions contemplated by by, this Agreement, Agreement and the Sale Agreement and has duly authorized authorized, by all necessary corporate action on its part, the execution, delivery and performance of this Agreement and the Sale Agreement, ; and has duly executed this Agreement and delivered this Agreement.
(iv) This the Sale Agreement, assuming the due authorization, execution and delivery hereof by each of the other parties hereto, constitutes a validlegal, legal valid and binding obligation of the Depositor, enforceable against the Depositor in accordance with the terms hereofits terms, subject subject, as to enforceability, to (Ai) applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally, generally and (Bii) general principles of equity, regardless of whether such enforcement is considered sought in a proceeding in equity or at law.
(viii) The Depositor is not in violation of, and its execution and delivery of this Agreement and its performance the Sale Agreement by the Depositor, the consummation of the transactions contemplated by this Agreement and the Sale Agreement, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Depositor and will not (A) result in a material breach of any term or provision of the charter or by-laws of the Depositor or (B) materially conflict with, result in a violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Depositor is a party or by which it may be bound or (C) constitute a material violation of any statute, order or regulation applicable to the Depositor of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Depositor; and the Depositor is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Depositor's ability to perform or meet any of its obligations under this Agreement.
(iv) No litigation is pending, or, to the best of the Depositor's knowledge, threatened, against the Depositor that would materially and adversely affect the execution, delivery or enforceability of this Agreement will not constitute a violation of, any law, any order and the Sale Agreement or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Depositor's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Depositor to perform its obligations under this Agreement or and the financial condition of Sale Agreement in accordance with the Depositorterms hereof.
(viv) The transfer No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Depositor of, or compliance by the Depositor with, this Agreement and the Sale Agreement or the consummation of the Trust Mortgage Loans to the Trustee as transactions contemplated herein requires no regulatory hereby, or if any such consent, approval, other than any such approvals as have been obtainedauthorization or order is required, and is not subject to any bulk transfer or similar law in effect in any applicable jurisdiction.
(vii) the Depositor has obtained the same. The Depositor is not transferring the Trust Mortgage Loans hereby represents and warrants to the Trustee with any intent respect to hinder, delay or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left with unreasonably small assets or capital with which to engage in and conduct its business.
(x) The Depositor 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.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xii) No litigation is pending or, to the best of the Depositor's knowledge, threatened against the Depositor that, if determined adversely to the Depositor, would prohibit the Depositor from entering into this Agreement or that, in the Depositor's good faith and reasonable judgment, is likely to materially and adversely affect either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(xiii) Except for any actions that are the express responsibility of another party hereunder or under the each Mortgage Loan Purchase Agreements, and further except for actions that the Depositor is expressly permitted to complete subsequent to as of the Closing Date, the Depositor has taken all actions required under applicable law to effectuate and following the transfer of the Trust Mortgage Loans by the Depositor to the Trustee.
(xiv) Immediately prior to the transfer of the UBS Trust Mortgage Loans to it by the Trust pursuant to this Agreement (and assuming that the UBS Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Trust Mortgage LoanSeller, free and clear of all liens, claims, encumbrances and other interests), (A) the Depositor had good title to the Mortgage Loans and marketable title tothe Mortgage Notes were subject to no offsets, and was the sole owner and holder ofclaims, each UBS Trust Mortgage Loan; and (B) the Depositor has full right and authority to sellliens, assign and transfer the UBS Trust Mortgage Loansmortgage, exclusive of the servicing rights pertaining theretopledge, charge, security interest, defenses or counterclaims.
(b) The Depositor hereby makes to the Trustee, for the Trustee's own benefit representations and the benefit warranties of the Certificateholders, each Transferor with respect to each Xxxxxx Trust the related Mortgage Loan onlyLoans in the applicable Transfer Agreement, which have been assigned to the representations and warranties shown on Schedule II heretoTrustee hereunder, were made as of the Closing Date or such other date specified in the particular representation and warrantyapplicable Transfer Agreement (or underlying agreement, subject to if such Transfer Agreement is in the exceptions set forth on Schedule III hereto (form of an assignment of a prior agreement). To the headings set forth in Schedule II hereto extent that any fact, condition or event with respect to each a Mortgage Loan constitutes a breach of both (i) a representation or warranty of the applicable Transferor under the applicable Transfer Agreement and (ii) a representation or warranty being for convenience of reference only and in no way limiting, expanding or otherwise affecting the scope or subject matter thereof). Except as expressly provided in Section 2.04(a)Seller under the Sale Agreement, the Depositor Trustee shall enforce the obligations of the Seller under the Sale Agreement and to the extent the Seller does not make fulfill its contracted obligations then the Trustee shall enforce the obligations of the applicable Transferor under any representations applicable representation or warranties regarding warranty made by it. The Trustee further acknowledges that the UBS Trust Depositor shall have no obligation or liability with respect to any breach of any representation or warranty with respect to the Mortgage LoansLoans under any circumstances.
(c) The representations, warranties and covenants of the Depositor set forth in or made pursuant to Section 2.04(a) and Section 2.04(b) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any the Depositor, the Servicer, the NIMs Insurer, or the Trustee of a breach of any of such representationsrepresentations and warranties that adversely and materially affects the value of the related Mortgage Loan, warranties and covenantsprepayment charges or the interests of the Certificateholders, the party discovering such breach shall give prompt written notice thereof to the other parties. Within 90 days of the discovery of a breach of any representation or warranty given to the Trustee by the Depositor, any Transferor, the Seller and assigned to the Trustee, the Depositor, such Transferor or the Seller, as applicable, shall either (a) cure such breach in all material respects, (b) repurchase such Mortgage Loan or any property acquired in respect thereof from the Trustee at the Purchase Price or (c) within the two year period following the Closing Date, substitute a Replacement Mortgage Loan for the affected Mortgage Loan. In the event of discovery of a breach of any representation and warranty of any Transferor or the Depositor, the Trustee shall enforce its rights under the applicable Transfer Agreement and the Sale Agreement for the benefit of Certificateholders and the NIMs Insurer. If a breach of the representations and warranties set forth in the Transfer Agreement hereof exists solely due to the unenforceability of a prepayment charge, the Trustee shall notify the NIMs Insurer and the Servicer thereof and not seek to enforce the repurchase remedy provided for herein unless directed in writing to do so by the NIMs Insurer or the Servicer. In the event of a breach of the representations and warranties with respect to the Mortgage Loans set forth in a Transfer Agreement, the Trustee shall at the request of the NIMs Insurer enforce the right of the Trust Fund and the NIMs Insurer to be indemnified for such breach of representation and warranty. In the event that such breach relates solely to the unenforceability of a prepayment charge, amounts received in respect of such indemnity up to the amount of such prepayment charge shall be distributed pursuant to Section 4.04(g). As provided in the Sale Agreement, if the Transferor substitutes for a Mortgage Loan for which there is a breach of any representations and warranties in the related Transfer Agreement which adversely and materially affects the value of such Mortgage Loan and such substitute mortgage loan is not a Replacement Mortgage Loan, under the terms of the Sale Agreement, the Seller will, in exchange for such substitute Mortgage Loan, (i) provide the applicable Purchase Price for the affected Mortgage Loan or (ii) within two years of the Closing Date, substitute such affected Mortgage Loan with a Replacement Mortgage Loan. Any such substitution shall not be effected prior to the additional delivery to the Trustee of a Request for Release substantially in the form of Exhibit I and shall not be effected unless it is within two years of the Startup Date. The Seller indemnifies and holds the Trust Fund, the Trustee, the Depositor, the Servicer, the NIMs Insurer and each Certificateholder harmless against any and all taxes, claims, losses, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, fees and expenses that the Trust Fund, the Trustee, the Depositor, the Servicer, the NIMs Insurer and any Certificateholder may sustain in connection with any actions of the Seller relating to a repurchase of a Mortgage Loan other than in compliance with the terms of this Section 2.03 and the Sale Agreement, to the extent that any such action causes (i) any federal or state tax to be imposed on the Trust Fund or any REMIC provided for herein, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup date" under Section 860(d)(1) of the Code, or (ii) any REMIC created hereunder to fail to qualify as a REMIC at any time that any Certificate is outstanding. In furtherance of the foregoing, if the Transferor or the Seller, as applicable, is not a member of MERS and repurchases a Mortgage Loan which is registered on the MERS System, the Transferor or the Seller, as applicable, at its own expense and without any right of reimbursement, shall cause MERS to execute and deliver an assignment of the Mortgage in recordable form to transfer the Mortgage from MERS to the Transferor or the Seller, as applicable, and shall cause such Mortgage to be removed from registration on the MERS System in accordance with MERS' rules and regulations. With respect to any Mortgage Loan repurchased by the Depositor pursuant to this Agreement, by the Seller pursuant to the Sale Agreement or by any Transferor pursuant to the applicable Transfer Agreement, the principal portion of the funds received by the Servicer in respect of such repurchase of a Mortgage Loan will be considered a Principal Prepayment and shall be deposited by the Servicer in the Collection Account pursuant to Section 3.05. The Trustee, upon receipt of the full amount of the Purchase Price for a Deleted Mortgage Loan, or upon receipt of the Mortgage File for a Replacement Mortgage Loan substituted for a Deleted Mortgage Loan, shall release or cause to be released and reassign to the Depositor, the Seller or the applicable Transferor, as applicable, the related Mortgage File for the Deleted Mortgage Loan and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation or warranty, as shall be necessary to vest in such party or its designee or assignee title to any Deleted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Trustee, and the Trustee shall not have any further responsibility with respect to the Mortgage File relating to such Deleted Mortgage Loan. With respect to each Replacement Mortgage Loan to be delivered to the Trustee pursuant to the terms of this Article II in exchange for a Deleted Mortgage Loan: (i) the Depositor, the applicable Transferor or the Seller, as applicable, must deliver to the Trustee the Mortgage File for the Replacement Mortgage Loan containing the documents set forth in Section 2.01 along with a written certification certifying as to the delivery of such Mortgage File and containing the granting language set forth in Section 2.01; and (ii) the Depositor will be deemed to have made, with respect to such Replacement Mortgage Loan, each of the representations and warranties made by it with respect to the related Deleted Mortgage Loan. The Trustee shall review the Mortgage File with respect to each Replacement Mortgage Loan and certify to the NIMs Insurer and the Depositor that all documents required by Section 2.01 have been executed and received. For any month in which the Seller substitutes one or more Replacement Mortgage Loans for one or more Deleted Mortgage Loans, the Seller will determine the amount (if any) by which the aggregate principal balance of all such Replacement Mortgage Loans as of the date of substitution and the aggregate prepayment penalties with respect to such Replacement Mortgage Loans is less than the aggregate Stated Principal Balance (after application of the principal portion of the Scheduled Payment due in the month of substitution) and aggregate prepayment penalties of all such Deleted Mortgage Loans. An amount equal to the aggregate of the deficiencies described in the preceding sentence (such amount, the "Substitution Adjustment Amount") shall be delivered by the Seller to the Servicer for deposit into the Collection Account on the Determination Date for the Distribution Date relating to the Prepayment Period during which the related Mortgage Loan became required to be purchased or replaced hereunder. Notwithstanding any other provision of this Agreement, the right to substitute Mortgage Loans pursuant to this Article II shall be subject to the additional limitations that no substitution of a Replacement Mortgage Loan for a Deleted Mortgage Loan shall be made unless the Trustee and the NIMs Insurer have received an Opinion of Counsel (at the expense of the party seeking to make the substitution) that, under current law, such substitution will not (A) affect adversely the status of any REMIC established hereunder as a REMIC, or of the related "regular interests" as "regular interests" in any such REMIC, or (B) cause any such REMIC to engage in a "prohibited transaction" or prohibited contribution pursuant to the REMIC Provisions. The Seller shall give or cause to be given written notice to the Certificateholders and the NIMs Insurer that such substitution has taken place, shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Replacement Mortgage Loan or Replacement Mortgage Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the NIMs Insurer and the Trustee. Upon such substitution by the Seller, such Replacement Mortgage Loan or Replacement Mortgage Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and the Sale Agreement, including all applicable representations and warranties thereof included in the Sale Agreement as of the date of substitution.
(d) It is understood and agreed that the representations, warranties and indemnification (i) set forth in Section 2.03, (ii) of the Seller and the Depositor set forth in the Sale Agreement and assigned to the Trustee by the Depositor hereunder and (iii) of each Transferor, assigned by the Seller to the Depositor pursuant to the Sale Agreement and assigned to the Trustee by the Depositor hereunder shall each survive delivery of the Mortgage Files and the Assignment of Mortgage of each Mortgage Loan to the Trustee and shall continue throughout the term of this Agreement.
(e) The Depositor shall deliver a copy of the Mortgage Loan Schedule to the Servicer on the Closing Date.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Asst Back Certs Ser 2003-4he)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, represents and warrants and covenants to the Trustee, for its own benefit and the benefit of the Certificateholders, and to the Master Servicer and the Special Servicer, as of the Closing Datedate hereof or such other date set forth herein, that:
(ia) The the Depositor is a corporation corporation, duly organized, validly existing and in good standing under the laws of the State of Delaware.
(ii) The execution Arizona and delivery of is duly authorized and qualified to transact any and all business contemplated by this Agreement by the Depositorin any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, and the performance and in any event, is in compliance with the terms doing business laws of this Agreement by any such State, to the Depositor, will not violate extent necessary to ensure the Depositor's certificate enforceability of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.each Mortgage Loan;
(iiib) The the Depositor has the full corporate power and authority to execute, deliver and perform, and to enter into and consummate all the transactions contemplated by this Agreement, Agreement and has duly authorized by all necessary corporate action on the part of the Depositor the execution, delivery and performance of this Agreement, ; and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming the due authorization, execution and delivery thereof by each of the other parties hereto, constitutes a validlegal, legal valid and binding obligation of the Depositor, enforceable against the Depositor in accordance with the terms hereofits terms, subject to except that (A) applicable the enforceability thereof may be limited by bankruptcy, insolvency, reorganizationmoratorium, moratorium receivership and other similar laws affecting the enforcement of relating to creditors' rights generally, generally and (B) general principles the remedy of equity, regardless specific performance and injunctive and other forms of whether such enforcement is considered in a equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding in equity or at law.therefor may be brought;
(vc) The Depositor is not in violation of, and its the execution and delivery of this Agreement by the Depositor, the consummation of any other of the transactions herein contemplated, and its performance and the fulfillment of or compliance with the terms hereof are in the ordinary course of this Agreement business of the Depositor and will not constitute (A) result in a material breach of any term or provision of the charter or by-laws of the Depositor or (B) materially conflict with, result in a material breach, violation or acceleration of, any lawor result in a material default under, any order or decree the terms of any court other material agreement or arbiterinstrument to which the Depositor is a party or by which it may be bound, or any orderstatute, order or regulation or demand applicable to the Depositor of any federalcourt, state regulatory body, administrative agency or local governmental body having jurisdiction over the Depositor; and the Depositor is not a party to, bound by, or in breach or violation of any indenture or other agreement or instrument, or subject to or in violation of any statute, order or regulation of any court, regulatory authoritybody, administrative agency or governmental body having jurisdiction over it, which violationmaterially and adversely affects, in or, to the Depositor's good faith and reasonable judgment, is likely to affect knowledge would in the future materially and adversely either affect, (X) the ability of the Depositor to perform its obligations under this Agreement or (Y) the business, operations, financial condition condition, properties or assets of the Depositor.;
(vid) The transfer of the Trust Mortgage Loans to the Trustee as contemplated herein requires no regulatory approval, other than any such approvals as have been obtained, and is not subject to any bulk transfer or similar law in effect in any applicable jurisdiction.
(vii) The Depositor is not transferring the Trust Mortgage Loans to the Trustee with any intent to hinder, delay or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left with unreasonably small assets or capital with which to engage in and conduct its business.
(x) The Depositor 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.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xii) No litigation is pending or, to the best of the Depositor's knowledge, threatened threatened, against the Depositor thatthat would adversely affect the execution, if determined adversely to the Depositor, would prohibit the Depositor from entering into delivery or enforceability of this Agreement or thator, in the Depositor's good faith and reasonable judgmentany material respect, is likely to materially and adversely affect either the ability of the Depositor to perform any of its other obligations hereunder in accordance with the terms hereof;
(e) no written information, certificate of an officer, statement furnished in writing or written report delivered to the Master Servicer or the Trustee and prepared by the Depositor pursuant to this Agreement contains any untrue statement of a material fact or omits to state a material fact necessary to make the information, certificate, statement or report not misleading; and
(f) except for permits and similar authorizations required under the securities or "blue sky" laws no consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Depositor of, or compliance by the Depositor with, this Agreement or the financial condition consummation of the Depositor.
(xiii) Except for transactions contemplated hereby, or if any actions that are the express responsibility of another party hereunder such consent, approval, authorization or under the Mortgage Loan Purchase Agreements, and further except for actions that the Depositor order is expressly permitted to complete subsequent to the Closing Daterequired, the Depositor has taken all actions required under applicable law to effectuate obtained the transfer of the Trust Mortgage Loans by the Depositor to the Trusteesame.
(xiv) Immediately prior to the transfer of the UBS Trust Mortgage Loans to the Trust pursuant to this Agreement (and assuming that the UBS Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Trust Mortgage Loan, free and clear of all liens, claims, encumbrances and other interests), (A) the Depositor had good and marketable title to, and was the sole owner and holder of, each UBS Trust Mortgage Loan; and (B) the Depositor has full right and authority to sell, assign and transfer the UBS Trust Mortgage Loans, exclusive of the servicing rights pertaining thereto.
(b) The Depositor hereby makes to the Trustee, for the Trustee's own benefit and the benefit of the Certificateholders, with respect to each Xxxxxx Trust Mortgage Loan only, the representations and warranties shown on Schedule II hereto, as of the Closing Date or such other date specified in the particular representation and warranty, subject to the exceptions set forth on Schedule III hereto (the headings set forth in Schedule II hereto with respect to each representation and warranty being for convenience of reference only and in no way limiting, expanding or otherwise affecting the scope or subject matter thereof). Except as expressly provided in Section 2.04(a), the Depositor does not make any representations or warranties regarding the UBS Trust Mortgage Loans.
(c) The representations, warranties and covenants of the Depositor set forth in or made pursuant to Section 2.04(a) and Section 2.04(b) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any breach of any of such representations, warranties and covenants, the party discovering such breach shall give prompt written notice thereof to the other parties.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (American Southwest Financial Securities Corp)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, represents and warrants and covenants to the TrusteeNIMs Insurer, for its own benefit and the benefit of the Certificateholders, and to the Master Servicer and the Special ServicerTrustee as follows, as of the Closing Date, that:date hereof
(i) The Depositor is duly organized and is validly existing as a corporation duly organized, validly existing and in good standing under the laws of the State of DelawareDelaware and has full power and authority (corporate and other) 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 and the Sale Agreement.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full corporate power and authority to execute, deliver and perform, and to enter into and consummate all the transactions contemplated by by, this Agreement, Agreement and the Sale Agreement and has duly authorized authorized, by all necessary corporate action on its part, the execution, delivery and performance of this Agreement and the Sale Agreement, ; and has duly executed this Agreement and delivered this Agreement.
(iv) This the Sale Agreement, assuming the due authorization, execution and delivery hereof by each of the other parties hereto, constitutes a validlegal, legal valid and binding obligation of the Depositor, enforceable against the Depositor in accordance with the terms hereofits terms, subject subject, as to enforceability, to (Ai) applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally, generally and (Bii) general principles of equity, regardless of whether such enforcement is considered sought in a proceeding in equity or at law.
(viii) The Depositor is not in violation of, and its execution and delivery of this Agreement and its performance the Sale Agreement by the Depositor, the consummation of the transactions contemplated by this Agreement and the Sale Agreement, and the fulfillment of or compliance with the terms hereof are in the ordinary course of this Agreement business of the Depositor and will not (A) result in a material breach of any term or provision of the charter or by-laws of the Depositor or (B) materially conflict with, result in a violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Depositor is a party or by which it may be bound or (C) constitute a material violation ofof any statute, any law, any order or decree regulation applicable to the Depositor of any court court, regulatory body, administrative agency or arbitergovernmental body having jurisdiction over the Depositor; and the Depositor is not in breach or violation of any material indenture or other material agreement or instrument, or any order, regulation or demand in violation of any federalstatute, state order or local regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or regulatory authority, which violation, in violation may materially impair the Depositor's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Depositor to perform or meet any of its obligations under this Agreement or the financial condition of the DepositorAgreement.
(vi) The transfer of the Trust Mortgage Loans to the Trustee as contemplated herein requires no regulatory approval, other than any such approvals as have been obtained, and is not subject to any bulk transfer or similar law in effect in any applicable jurisdiction.
(vii) The Depositor is not transferring the Trust Mortgage Loans to the Trustee with any intent to hinder, delay or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left with unreasonably small assets or capital with which to engage in and conduct its business.
(x) The Depositor 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.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xiiiv) No litigation is pending or, to the best of the Depositor's knowledge, threatened threatened, against the Depositor that, if determined adversely to the Depositor, that would prohibit the Depositor from entering into this Agreement or that, in the Depositor's good faith and reasonable judgment, is likely to materially and adversely affect either the execution, delivery or enforceability of this Agreement and the Sale Agreement or the ability of the Depositor to perform its obligations under this Agreement or and the financial condition of Sale Agreement in accordance with the Depositorterms hereof.
(xiiiv) 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 Depositor of, or compliance by the Depositor with, this Agreement and the Sale Agreement or the consummation of the transactions contemplated hereby, or if any actions that are such consent, approval, authorization or order is required, the express responsibility of another party hereunder or under Depositor has obtained the same. The Depositor hereby represents and warrants to the Trustee with respect to each Mortgage Loan Purchase Agreements, and further except for actions that the Depositor is expressly permitted to complete subsequent to as of the Closing Date, the Depositor has taken all actions required under applicable law to effectuate and following the transfer of the Trust Mortgage Loans by the Depositor to the Trustee.
(xiv) Immediately prior to the transfer of the UBS Trust Mortgage Loans to it by the Trust pursuant to this Agreement (and assuming that the UBS Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Trust Mortgage LoanSponsor, free and clear of all liens, claims, encumbrances and other interests), (A) the Depositor had good title to the Mortgage Loans and marketable title tothe Mortgage Notes were subject to no offsets, and was the sole owner and holder ofclaims, each UBS Trust liens, mortgage, pledge, charge, security interest, defenses or counterclaims.
(vi) Each Mortgage Loan; and (B) the Depositor Loan in Group One has full right and authority to sell, assign and transfer the UBS Trust Mortgage Loans, exclusive a Stated Principal Balance as of the servicing rights pertaining theretoCut-off Date that complies with the loan limitations of Xxxxxx Xxx and Xxxxxxx Mac as in effect on the Cut-off Date.
(b) The Depositor hereby makes To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of a representation or warranty of the TrusteeSponsor under the Sale Agreement, for the only right or remedy of the Trustee or of any Certificateholder shall be the Trustee's own benefit and right to enforce the benefit obligations of the Certificateholders, Sponsor under any applicable representation or warranty made by it. The Trustee acknowledges that the Depositor shall have no obligation or liability with respect to each Xxxxxx Trust Mortgage Loan only, the representations and warranties shown on Schedule II hereto, as any breach of the Closing Date any representation or such other date specified in the particular representation and warranty, subject warranty with respect to the exceptions set forth on Schedule III hereto Mortgage Loans (the headings except as set forth in Schedule II hereto with respect to each representation and warranty being for convenience of reference only and in no way limiting, expanding or otherwise affecting the scope or subject matter thereofSection 2.03(a)(v). Except as expressly provided in Section 2.04(a), the Depositor does not make ) under any representations or warranties regarding the UBS Trust Mortgage Loanscircumstances.
(c) The representations, warranties and covenants of the Depositor set forth in or made pursuant to Section 2.04(a) and Section 2.04(b) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any the NIMs Insurer, the Depositor, the Servicer, or the Trustee of a breach of any of such representationsrepresentations and warranties set forth in the Sale Agreement that adversely and materially affects the value of the related Mortgage Loan, warranties and covenantsprepayment charges or the interests of the Certificateholders, the party discovering such breach shall give prompt written notice thereof to the other parties. Within ninety (90) days of the discovery of a breach of any representation or warranty given to the Trustee by the Depositor, the Sponsor and assigned by the Depositor to the Trustee, the Depositor, or the Sponsor shall either (a) cure such breach in all material respects, (b) repurchase such Mortgage Loan or any property acquired in respect thereof from the Trustee at the Purchase Price or (c) within the two year period following the Closing Date, substitute a Replacement Mortgage Loan for the affected Mortgage Loan. In the event of discovery of a breach of any representation and warranty of the Sponsor or the Depositor, the Trustee shall enforce its rights under the Sale Agreement or thereunder for the benefit of Certificateholders and the NIMs Insurer. In the event of a breach of the representations and warranties with respect to the Mortgage Loans set forth in a Sale Agreement, the Trustee shall enforce the right of the Issuing Entity to be indemnified for such breach of representation and warranty. In the event that such breach relates solely to the unenforceability of a prepayment charge, amounts received in respect of such indemnity up to the amount of such prepayment charge shall be distributed pursuant to Section 4.04(b)(i)(B). As provided in the Sale Agreement, if the Sponsor substitutes for a Mortgage Loan for which there is a breach of any representations and warranties which adversely and materially affects the value of such Mortgage Loan and such substitute mortgage loan is not a Replacement Mortgage Loan, under the terms of the Sale Agreement, the Sponsor will, in exchange for such substitute Mortgage Loan, (i) provide the applicable Purchase Price for the affected Mortgage Loan or (ii) within two years of the Closing Date, substitute such affected Mortgage Loan with a Replacement Mortgage Loan. Any such substitution shall not be effected prior to the additional delivery to the Trustee of a Request for Release substantially in the form of Exhibit I and shall not be effected unless it is within two years of the Startup Day. As provided in the Sale Agreement, the Sponsor indemnifies and holds the Issuing Entity, the Trustee, the Depositor, the Servicer, the NIMs Insurer and each Certificateholder harmless against any and all taxes, claims, losses, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, fees and expenses that the Issuing Entity, the Trustee, the Depositor, the Servicer, the NIMs Insurer and any Certificateholder may sustain in connection with any actions of the Sponsor relating to a repurchase of a Mortgage Loan other than in compliance with the terms of this Section 2.03 and the Sale Agreement, to the extent that any such action causes (i) any federal or state tax to be imposed on the Issuing Entity or any REMIC provided for herein, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup day" under Section 860G(d)(1) of the Code, or (ii) any REMIC created hereunder to fail to qualify as a REMIC at any time that any Certificate is outstanding. With respect to any Mortgage Loan repurchased by the Depositor pursuant to this Agreement or by the Sponsor pursuant to the Sale Agreement, the principal portion of the funds received by the Servicer in respect of such repurchase of a Mortgage Loan will be considered a Principal Prepayment and shall be deposited by the Servicer in the Certificate Account pursuant to Section 3.05. The Trustee, upon receipt of the full amount of the Purchase Price for a Deleted Mortgage Loan, or upon receipt of the Mortgage File for a Replacement Mortgage Loan substituted for a Deleted Mortgage Loan, shall release or cause to be released and reassign to the Depositor or the Sponsor, as applicable, the related Mortgage File for the Deleted Mortgage Loan and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation or warranty, as shall be necessary to vest in such party or its designee or assignee title to any Deleted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Trustee, and the Trustee shall not have any further responsibility with respect to the Mortgage File relating to such Deleted Mortgage Loan. With respect to each Replacement Mortgage Loan to be delivered to the Trustee pursuant to the terms of this Article II in exchange for a Deleted Mortgage Loan: (i) the Depositor or the Sponsor, as applicable, must deliver to the Trustee the Mortgage File for the Replacement Mortgage Loan containing the documents set forth in Section 2.01 along with a written certification certifying as to the delivery of such Mortgage File and containing the granting language set forth in the first sentence of Section 2.01; and (ii) the Depositor will be deemed to have made, with respect to such Replacement Mortgage Loan, each of the representations and warranties made by it with respect to the related Deleted Mortgage Loan. The Trustee shall review the Mortgage File with respect to each Replacement Mortgage Loan and certify to the Depositor that all documents required by Section 2.01 have been executed and received. For any month in which the Sponsor substitutes one or more Replacement Mortgage Loans for one or more Deleted Mortgage Loans, the Sponsor will determine the amount (if any) by which the aggregate principal balance of all such Replacement Mortgage Loans as of the date of substitution and the aggregate prepayment charges with respect to such Replacement Mortgage Loans is less than the aggregate Stated Principal Balance (after application of the principal portion of the Scheduled Payment due in the month of substitution) and aggregate prepayment charges of all such Deleted Mortgage Loans. An amount equal to the aggregate of the deficiencies described in the preceding sentence (such amount, the "Substitution Adjustment Amount") shall be delivered by the Sponsor to the Servicer for deposit into the Collection Account on the Determination Date for the Distribution Date relating to the Prepayment Period during which the related Mortgage Loan became required to be purchased or replaced hereunder. The Sponsor shall give or cause to be given written notice to the Certificateholders that such substitution has taken place, shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Replacement Mortgage Loan or Replacement Mortgage Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the NIMs Insurer and the Trustee. Upon such substitution by the Sponsor, such Replacement Mortgage Loan or Replacement Mortgage Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and the Sale Agreement, including all applicable representations and warranties thereof included in the Sale Agreement as of the date of substitution. In addition, the Sponsor shall obtain at its own expense and deliver to the Trustee an Opinion of Counsel addressed to the Trustee to the effect that such substitution will not (a) cause any federal tax to be imposed on the Issuing Entity or any REMIC provided for herein, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup day" under Section 860G(d)(1) of the Code or (b) adversely affect the status of any REMIC provided for herein as a REMIC. If any such Opinion of Counsel can not be delivered, then such substitution may only be effected at such time as the required Opinion of Counsel can be given.
(d) It is understood and agreed that the representations, warranties and indemnification (i) set forth in this Section 2.03 and (ii) of the Sponsor and the Depositor set forth in the Sale Agreement and assigned to the Trustee by the Depositor hereunder shall each survive delivery of the Mortgage Files and the Assignment of Mortgage of each Mortgage Loan to the Trustee and shall continue throughout the term of this Agreement.
(e) The Depositor shall notify the Servicer and the Trustee when any NIM Notes are issued and when such NIM Notes are no longer outstanding.
Appears in 1 contract
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, represents and warrants and covenants to the Trustee, for its own benefit and the benefit of the Certificateholders, and to the Master Servicer and the Special ServicerTrustee as follows, as of the Closing Date, thatdate hereof:
(i) The Depositor is duly organized and is validly existing as a corporation duly organized, validly existing and in good standing under the laws of the State of DelawareDelaware and has full power and authority (corporate and other) 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 and the Sale Agreement.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full corporate power and authority to execute, deliver and perform, and to enter into and consummate all the transactions contemplated by by, this Agreement, Agreement and the Sale Agreement and has duly authorized authorized, by all necessary corporate action on its part, the execution, delivery and performance of this Agreement and the Sale Agreement, ; and has duly executed this Agreement and delivered this Agreement.
(iv) This the Sale Agreement, assuming the due authorization, execution and delivery hereof by each of the other parties hereto, constitutes a validlegal, legal valid and binding obligation of the Depositor, enforceable against the Depositor in accordance with the terms hereofits terms, subject subject, as to enforceability, to (Ai) applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally, generally and (Bii) general principles of equity, regardless of whether such enforcement is considered sought in a proceeding in equity or at law.
(viii) The Depositor is not in violation of, and its execution and delivery of this Agreement and its performance the Sale Agreement by the Depositor, the consummation of the transactions contemplated by this Agreement and the Sale Agreement, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Depositor and will not (A) result in a material breach of any term or provision of the charter or by-laws of the Depositor or (B) materially conflict with, result in a violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Depositor is a party or by which it may be bound or (C) constitute a material violation of any statute, order or regulation applicable to the Depositor of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Depositor; and the Depositor is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Depositor's ability to perform or meet any of its obligations under this Agreement.
(iv) No litigation is pending, or, to the best of the Depositor's knowledge, threatened, against the Depositor that would materially and adversely affect the execution, delivery or enforceability of this Agreement will not constitute a violation of, any law, any order and the Sale Agreement or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Depositor's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Depositor to perform its obligations under this Agreement or and the financial condition of Sale Agreement in accordance with the Depositorterms hereof.
(viv) The transfer No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Depositor of, or compliance by the Depositor with, this Agreement and the Sale Agreement or the consummation of the Trust Mortgage Loans to the Trustee as transactions contemplated herein requires no regulatory hereby, or if any such consent, approval, other than any such approvals as have been obtainedauthorization or order is required, and is not subject to any bulk transfer or similar law in effect in any applicable jurisdiction.
(vii) the Depositor has obtained the same. The Depositor is not transferring the Trust Mortgage Loans hereby represents and warrants to the Trustee with any intent respect to hinder, delay or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left with unreasonably small assets or capital with which to engage in and conduct its business.
(x) The Depositor 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.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xii) No litigation is pending or, to the best of the Depositor's knowledge, threatened against the Depositor that, if determined adversely to the Depositor, would prohibit the Depositor from entering into this Agreement or that, in the Depositor's good faith and reasonable judgment, is likely to materially and adversely affect either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(xiii) Except for any actions that are the express responsibility of another party hereunder or under the each Mortgage Loan Purchase Agreements, and further except for actions that the Depositor is expressly permitted to complete subsequent to as of the Closing Date, the Depositor has taken all actions required under applicable law to effectuate and following the transfer of the Trust Mortgage Loans by the Depositor to the Trustee.
(xiv) Immediately prior to the transfer of the UBS Trust Mortgage Loans to it by the Trust pursuant to this Agreement (and assuming that the UBS Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Trust Mortgage LoanSeller, free and clear of all liens, claims, encumbrances and other interests), (A) the Depositor had good title to the Mortgage Loans and marketable title tothe Mortgage Notes were subject to no offsets, and was the sole owner and holder ofclaims, each UBS Trust Mortgage Loan; and (B) the Depositor has full right and authority to sellliens, assign and transfer the UBS Trust Mortgage Loansmortgage, exclusive of the servicing rights pertaining theretopledge, charge, security interest, defenses or counterclaims.
(b) The Depositor hereby makes to the Trustee, for the Trustee's own benefit representations and the benefit warranties of the Certificateholders, each Transferor with respect to each Xxxxxx Trust the related Mortgage Loan onlyLoans in the applicable Transfer Agreement, which have been assigned to the Trustee hereunder, were made as of the date specified in the applicable Transfer Agreement and brought forward to the Closing Date pursuant to the related Bring Down Letter, except as otherwise noted on Exhibit J. The representations and warranties shown on Schedule II hereto, of each Transferor with respect to the Mortgage Loans contained in the Bring Down Letter were made as of the Closing Date or such other date specified Date, except as otherwise noted on Exhibit J. The representations and warranties of the Seller with respect to the Mortgage Loans contained in the particular Sale Agreement were made as of the Closing Date. To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of both (i) a representation or warranty of the applicable Transferor under the applicable Transfer Agreement and warranty(ii) a representation or warranty of the Seller under the Sale Agreement, subject to the exceptions set forth on Schedule III hereto (obligations of the headings Seller under the Sale Agreement shall be enforced against the Transferor or the Seller, as applicable, as set forth in Schedule II hereto the Sale Agreement. The Trustee acknowledges that the Seller shall have no obligation or liability with respect to each any breach of a representation and or warranty being for convenience of reference only and in no way limiting, expanding or otherwise affecting the scope or subject matter thereof). Except as expressly provided in Section 2.04(a), the Depositor does not make made by it with respect to any representations or warranties regarding the UBS Trust related Mortgage Loans.
(c) The representations, warranties and covenants of the Depositor except as otherwise set forth in the Sale Agreement, if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made pursuant by the related Transferor in the related Transfer Agreement, without regard to Section 2.04(a) and Section 2.04(b) whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty. The Trustee also acknowledges that the Seller shall survive have no obligation or liability with respect to any breach of a representation or warranty made solely by the execution and delivery of this Agreement and shall inure Transferors with respect to the benefit Mortgage Loans, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty. The Trustee further acknowledges that the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of Depositor shall have no obligation or liability with respect to any breach of any of such representations, warranties and covenants, the party discovering such breach shall give prompt written notice thereof representation or warranty with respect to the other partiesMortgage Loans (except as set forth in Section 2.03(a)(v)) under any circumstances.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Trust Series 2006-Sl1)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, warrants and covenants to the Trustee, for its own benefit and the benefit of the Certificateholders, and to the Fiscal Agent, the Master Servicer and the Special Servicer, as of the Closing Date, that:
(i) The Depositor is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full power and authority to enter into and consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and delivery by each of the other parties hereto, constitutes a valid, legal and binding obligation of the Depositor, enforceable against the Depositor in accordance with the terms hereof, subject to (A) applicable bankruptcy, insolvency, reorganization, moratorium and other laws affecting the enforcement of creditors' rights generally, and (B) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law.
(v) The Depositor is not in violation of, and its execution and delivery of this Agreement and its performance and compliance with the terms of this Agreement will not constitute a violation of, any law, any order or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Depositor's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(vi) The transfer of the Trust Mortgage Loans to the Trustee as contemplated herein requires no regulatory approval, other than any such approvals as have been obtained, and is not subject to any bulk transfer or similar law in effect in any applicable jurisdiction.
(vii) The Depositor is not transferring the Trust Mortgage Loans to the Trustee with any intent to hinder, delay or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left with unreasonably small assets or capital with which to engage in and conduct its business.
(x) The Depositor 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.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xii) No litigation is pending or, to the best of the Depositor's knowledge, threatened against the Depositor that, if determined adversely to the Depositor, would prohibit the Depositor from entering into this Agreement or that, in the Depositor's good faith and reasonable judgment, is likely to materially and adversely affect either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(xiii) Except for any actions that are the express responsibility of another party hereunder or under the Mortgage Loan Purchase Agreements, and further except for actions that the Depositor is expressly permitted to complete subsequent to the Closing Date, the Depositor has taken all actions required under applicable law to effectuate the transfer of the Trust Mortgage Loans by the Depositor to the Trustee.
(xivviii) Immediately prior to the transfer of the UBS Trust Mortgage Loans to the Trust Fund pursuant to this Agreement (Agreement, and assuming that the UBS Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Trust Mortgage Loan, free and clear of all liens, claims, encumbrances and other interests), (A) the Depositor had good and marketable title to, and was the sole owner and holder of, each UBS Trust Mortgage Loan; and (B) the Depositor has full right and authority to sell, assign and transfer the UBS Trust Mortgage Loans, exclusive of the Loans and all servicing rights pertaining thereto.
(b) The Depositor hereby makes represents and warrants to the Trustee, for the Trustee's its own benefit and the benefit of the Certificateholders, with respect to each Xxxxxx Trust LBHI Mortgage Loan only, the representations and warranties shown on Schedule II heretoLoan, as of the Closing Date or such other date specified in the particular representation and warranty, that:
(i) The information pertaining to such Mortgage Loan set forth in the Mortgage Loan Schedule was true and correct in all material respects as of the Cut-off Date.
(ii) If such Mortgage Loan was originated by LBHI or another Affiliate of the Depositor, then, as of the date of its origination, such Mortgage Loan complied in all material respects with, or was exempt from, all requirements of federal, state or local law relating to the origination of such Mortgage Loan; and, if such Mortgage Loan was not originated by LBHI or another Affiliate of the Depositor, then, to the best of the Depositor's knowledge after having performed the type of due diligence customarily performed by prudent institutional commercial and multifamily mortgage lenders, as of the date of its origination, such Mortgage Loan complied in all material respects with, or was exempt from, all requirements of federal, state or local law relating to the origination of such Mortgage Loan.
(iii) The Depositor owns such Mortgage Loan, has good and marketable title thereto, has full right and authority to sell, assign and transfer such Mortgage Loan and is transferring such Mortgage Loan free and clear of any and all liens, pledges, charges or security interests of any nature encumbering such Mortgage Loan; no provision of the Mortgage Note, Mortgage(s) or other loan documents relating to such Mortgage Loan prohibits or restricts the Depositor's right to assign or transfer such Mortgage Loan; and the Depositor has validly conveyed to the Trustee a legal and beneficial interest in and to such Mortgage Loan free and clear of any lien, claim or encumbrance of any nature.
(iv) The proceeds of such Mortgage Loan have been fully disbursed and there is no requirement for future advances thereunder.
(v) Each of the related Mortgage Note, Mortgage(s), Assignment(s) of Leases, if any, and other agreements executed in connection therewith is the legal, valid and binding obligation of the maker thereof (subject to the non-recourse provisions therein and any state anti-deficiency legislation), enforceable in accordance with its terms, except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally, and by general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law), and a legal opinion to such effect was obtained by the originator of such Mortgage Loan at the time of origination; and the Mortgage Loan is non-recourse to the Mortgagor or any other Person.
(vi) As of the date of its origination or, if such Mortgage Loan is the Sangertown Square Mortgage Loan, as of the date of the execution of the related Mortgage Note, there was no valid offset, defense, counterclaim or right to rescission with respect to any of the related Mortgage Note, Mortgage(s) or other agreements executed in connection therewith; and, as of the Cut-off Date, to the best of the Depositor's knowledge, there is no valid offset, defense, counterclaim or right to rescission with respect to such Mortgage Note, Mortgage(s) or other agreements; and, to the actual knowledge of the Depositor, no such claim has been asserted.
(vii) The assignment of the related Mortgage(s) and Assignment(s) of Leases to the Trustee constitutes the legal, valid, binding and enforceable assignment of such documents in accordance with their respective terms, except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally, and by general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law).
(viii) Each related Mortgage is a valid and enforceable first lien on the related Mortgaged Property and all buildings thereon and fixtures thereto, which Mortgaged Property is free and clear of all encumbrances and liens having priority over or on a parity with the first lien of such Mortgage, except for (A) liens for real estate taxes and special assessments not yet due and 30 days' delinquent, (B) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage, such exceptions appearing of record being customarily acceptable to mortgage lending institutions generally or specifically reflected in the appraisal (if any) of such Mortgaged Property made in connection with the origination of such Mortgage Loan, and (C) other matters to which like properties are commonly subject (the exceptions set forth on Schedule III hereto in the foregoing CLAUSES (the headings set forth in Schedule II hereto with respect to each representation and warranty being for convenience of reference only and in no way limiting, expanding or otherwise affecting the scope or subject matter thereof). Except as expressly provided in Section 2.04(aA), (B) and (C) collectively, "PERMITTED ENCUMBRANCES"); and such Permitted Encumbrances do not, individually or in the Depositor does not make aggregate, materially and adversely interfere with the benefits of the security intended to be provided by such Mortgage, materially and adversely interfere with the current use or operation of the related Mortgaged Property or materially and adversely affect the value or marketability of such Mortgaged Property or the ability of the related Mortgagor to timely pay in full the principal and interest on the related Mortgage Note. If the related Mortgaged Property is operated as a nursing facility or a hospitality property, the related Mortgage, together with any representations separate security agreement, chattel mortgage or warranties regarding similar agreement and UCC financing statement, if any, establishes and creates a first priority, perfected security interest (subject only to any prior purchase money security interest), to the UBS Trust extent such security interest can be perfected by the recordation of a Mortgage Loansor the filing of a UCC financing statement, in all personal property owned by the Mortgagor that is used in, and is reasonably necessary to, the operation of the related Mortgaged Property.
(cix) The representationsrelated Mortgage Loan Seller has filed and/or recorded in all appropriate public filing and recording offices all UCC-1 financing statements necessary to create and perfect a security interest in and lien on the items of personal property described therein (such description being consistent with the practices of prudent commercial mortgage lenders), warranties which personal property includes, in the case of healthcare facilities and covenants hotel properties, all furniture, fixtures, equipment and other personal property located at the subject Mortgaged Property that is owned by the related Mortgagor and necessary or material to the operation of the Depositor set forth subject Mortgaged Property (or, if not filed and/or recorded, the related Mortgage Loan Seller has submitted such UCC-1 financing statements for filing and/or recording and such UCC-1 financing statements are in or made form and substance acceptable for filing and/or recording), to the extent perfection may be effected pursuant to Section 2.04(aapplicable law by recording or filing.
(x) All taxes, governmental assessments, ground rents, water charges or sewer rents that prior to the Cut-off Date became due and Section 2.04(bowing in respect of, and materially affect, any related Mortgaged Property have been paid, or an escrow of funds in an amount sufficient to cover such payments has been established.
(xi) shall survive As of the execution date of its origination, there was no proceeding pending for the total or partial condemnation of any related Mortgaged Property that materially affects the value thereof, and delivery each such Mortgaged Property was free of this Agreement material damage; and, as of the Cut-off Date, to the actual knowledge of the Depositor, there was no pending proceeding for the total or partial condemnation of any related Mortgaged Property that materially affects the value thereof, and shall such Mortgaged Property is free of material damage.
(xii) Each related Mortgaged Property is covered by an ALTA (or its equivalent) lender's title insurance policy issued by a nationally recognized title insurance company, insuring that each related Mortgage is a valid first lien on such Mortgaged Property in the original principal amount of such Mortgage Loan after all advances of principal, subject only to Permitted Encumbrances (which Permitted Encumbrances do not, individually or in the aggregate, materially and adversely interfere with the benefits of the security intended to be provided by such Mortgage, materially and adversely interfere with the current use or operation of the related Mortgaged Property or materially or adversely affect the value or marketability of such Mortgaged Property or the ability of the related Mortgagor to timely pay in full the principal and interest on the related Mortgage Note), or there is a binding commitment from a title insurer qualified and/or licensed in the applicable jurisdiction, as required, to issue such policy; such title insurance policy, if issued, is in full force and effect, all premiums have been paid, is freely assignable and will inure solely to the benefit of the Persons Trustee as mortgagee of record, or any such commitment is a legal, valid and binding obligation of such insurer; no claims have been made under such title insurance policy, if issued; and, to the best of the Depositor's knowledge, no prior mortgagee has done, by act or omission, anything that would materially impair the coverage of any such title insurance policy; such policy or commitment contains no exclusion for whose benefit they were made for so long as (or alternatively it insures, unless such coverage is unavailable in the Trust Fund remains in existence. Upon discovery relevant jurisdiction) (A) access to a public road, (B) that there is no material encroachment by any party hereto of any breach of any of such representationsimprovements on the Mortgaged Property, warranties and covenants, (C) that the party discovering such breach shall give prompt written notice thereof area shown on the survey materially conforms to the other partieslegal description of the Mortgaged Property.
(xiii) As of the date of its origination and, to the best of the Depositor's knowledge, as of the Cut-off Date, all insurance required under each related Mortgage was in full force and effect with respect to each related Mortgaged Property; such insurance covered (except where a Tenant
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Structured Asset Sec Corp Com Mort Pas THR Certs Ser 2000-C3)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, represents and warrants and covenants to the Trustee, for its own benefit and the benefit of the Certificateholders, and to the Master Servicer and the Special ServicerTrustee as follows, as of the Closing Date, that:date hereof
(i) The Depositor is duly organized and is validly existing as a corporation duly organized, validly existing and in good standing under the laws of the State of DelawareDelaware and has full power and authority (corporate and other) 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 and the Sale Agreement.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full corporate power and authority to execute, deliver and perform, and to enter into and consummate all the transactions contemplated by by, this Agreement, Agreement and the Sale Agreement and has duly authorized authorized, by all necessary corporate action on its part, the execution, delivery and performance of this Agreement and the Sale Agreement, ; and has duly executed this Agreement and delivered this Agreement.
(iv) This the Sale Agreement, assuming the due authorization, execution and delivery hereof by each of the other parties hereto, constitutes a validlegal, legal valid and binding obligation of the Depositor, enforceable against the Depositor in accordance with the terms hereofits terms, subject subject, as to enforceability, to (Ai) applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally, generally and (Bii) general principles of equity, regardless of whether such enforcement is considered sought in a proceeding in equity or at law.
(viii) The Depositor is not in violation of, and its execution and delivery of this Agreement and its performance the Sale Agreement by the Depositor, the consummation of the transactions contemplated by this Agreement and the Sale Agreement, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Depositor and will not (A) result in a material breach of any term or provision of the charter or by-laws of the Depositor or (B) materially conflict with, result in a violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Depositor is a party or by which it may be bound or (C) constitute a material violation of any statute, order or regulation applicable to the Depositor of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Depositor; and the Depositor is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Depositor's ability to perform or meet any of its obligations under this Agreement.
(iv) No litigation is pending, or, to the best of the Depositor's knowledge, threatened, against the Depositor that would materially and adversely affect the execution, delivery or enforceability of this Agreement will not constitute a violation of, any law, any order and the Sale Agreement or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Depositor's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Depositor to perform its obligations under this Agreement and the Sale Agreement in accordance with the terms hereof.
(v) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Depositor of, or compliance by the Depositor with, this Agreement and the Sale Agreement or the financial condition consummation of the Depositortransactions contemplated hereby, or if any such consent, approval, authorization or order is required, the Depositor has obtained the same. The Depositor hereby represents and warrants to the Trustee with respect to each Mortgage Loan as of the Closing Date, and following the transfer of the Mortgage Loans to it by the Seller, the Depositor had good title to the Mortgage Loans and the Mortgage Notes were subject to no offsets, claims, liens, mortgage, pledge, charge, security interest, defenses or counterclaims.
(vi) The transfer Each Mortgage Loan in Group One has a Stated Principal Balance as of the Trust Mortgage Loans to Cut-off Date that complies with the Trustee loan limitations of Xxxxxx Xxx and Xxxxxxx Mac as contemplated herein requires no regulatory approval, other than any such approvals as have been obtained, and is not subject to any bulk transfer or similar law in effect in any applicable jurisdiction.
(vii) The Depositor is not transferring on the Trust Mortgage Loans to the Trustee with any intent to hinder, delay or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left with unreasonably small assets or capital with which to engage in and conduct its business.
(x) The Depositor 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.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xii) No litigation is pending or, to the best of the Depositor's knowledge, threatened against the Depositor that, if determined adversely to the Depositor, would prohibit the Depositor from entering into this Agreement or that, in the Depositor's good faith and reasonable judgment, is likely to materially and adversely affect either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(xiii) Except for any actions that are the express responsibility of another party hereunder or under the Mortgage Loan Purchase Agreements, and further except for actions that the Depositor is expressly permitted to complete subsequent to the Closing Cut-off Date, the Depositor has taken all actions required under applicable law to effectuate the transfer of the Trust Mortgage Loans by the Depositor to the Trustee.
(xiv) Immediately prior to the transfer of the UBS Trust Mortgage Loans to the Trust pursuant to this Agreement (and assuming that the UBS Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Trust Mortgage Loan, free and clear of all liens, claims, encumbrances and other interests), (A) the Depositor had good and marketable title to, and was the sole owner and holder of, each UBS Trust Mortgage Loan; and (B) the Depositor has full right and authority to sell, assign and transfer the UBS Trust Mortgage Loans, exclusive of the servicing rights pertaining thereto.
(b) The Depositor hereby makes To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of a representation or warranty of the TrusteeSeller under the Sale Agreement, for the only right or remedy of the Trustee or of any Certificateholder shall be the Trustee's own benefit and right to enforce the benefit obligations of the Certificateholders, Seller under any applicable representation or warranty made by it. The Trustee acknowledges that the Depositor shall have no obligation or liability with respect to each Xxxxxx Trust Mortgage Loan only, the representations and warranties shown on Schedule II hereto, as any breach of the Closing Date any representation or such other date specified in the particular representation and warranty, subject warranty with respect to the exceptions set forth on Schedule III hereto Mortgage Loans (the headings except as set forth in Schedule II hereto with respect to each representation and warranty being for convenience of reference only and in no way limiting, expanding or otherwise affecting the scope or subject matter thereofSection 2.03(a)(v). Except as expressly provided in Section 2.04(a), the Depositor does not make ) under any representations or warranties regarding the UBS Trust Mortgage Loanscircumstances.
(c) The representations, warranties and covenants of the Depositor set forth in or made pursuant to Section 2.04(a) and Section 2.04(b) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any the Depositor, the Servicer or the Trustee of a breach of any of such representationsrepresentations and warranties set forth in the Sale Agreement that adversely and materially affects the value of the related Mortgage Loan, warranties and covenantsprepayment charges or the interests of the Certificateholders, the party discovering such breach shall give prompt written notice thereof to the other parties.. Within 90 days of the discovery of a breach of any representation or warranty given to the Trustee by the Depositor, the Seller and assigned to the Trustee, the Depositor, or the Seller shall either (a) cure such breach in all material respects, (b) repurchase such Mortgage Loan or any property acquired in respect thereof from the Trustee at the Purchase Price or (c) within the two year period following the Closing Date, substitute a Replacement Mortgage Loan for the affected Mortgage Loan. In the event of discovery of a breach of any representation and warranty of the Seller or the Depositor, the Trustee shall enforce its rights under the Sale Agreement or thereunder for the benefit of Certificateholders. In the event of a breach of the representations and warranties with respect to the Mortgage Loans set forth in a Sale Agreement, the Trustee shall enforce the right of the Trust Fund to be indemnified for such breach of representation and
Appears in 1 contract
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, represents and warrants and covenants to the TrusteeNIMs Insurer, for its own benefit and the benefit of the Certificateholders, and to the Master Servicer and the Special ServicerTrustee as follows, as of the Closing Date, thatdate hereof:
(i) The Depositor is duly organized and is validly existing as a corporation duly organized, validly existing and in good standing under the laws of the State of DelawareDelaware and has full power and authority (corporate and other) 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 and the Sale Agreement.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full corporate power and authority to execute, deliver and perform, and to enter into and consummate all the transactions contemplated by by, this Agreement, Agreement and the Sale Agreement and has duly authorized authorized, by all necessary corporate action on its part, the execution, delivery and performance of this Agreement and the Sale Agreement, ; and has duly executed this Agreement and delivered this Agreement.
(iv) This the Sale Agreement, assuming the due authorization, execution and delivery hereof by each of the other parties hereto, constitutes a validlegal, legal valid and binding obligation of the Depositor, enforceable against the Depositor in accordance with the terms hereofits terms, subject subject, as to enforceability, to (Ai) applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally, generally and (Bii) general principles of equity, regardless of whether such enforcement is considered sought in a proceeding in equity or at law.
(viii) The Depositor is not in violation of, and its execution and delivery of this Agreement and its performance the Sale Agreement by the Depositor, the consummation of the transactions contemplated by this Agreement and the Sale Agreement, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Depositor and will not (A) result in a material breach of any term or provision of the charter or by-laws of the Depositor or (B) materially conflict with, result in a violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Depositor is a party or by which it may be bound or (C) constitute a material violation of any statute, order or regulation applicable to the Depositor of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Depositor; and the Depositor is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Depositor's ability to perform or meet any of its obligations under this Agreement.
(iv) No litigation is pending, or, to the best of the Depositor's knowledge, threatened, against the Depositor that would materially and adversely affect the execution, delivery or enforceability of this Agreement will not constitute a violation of, any law, any order and the Sale Agreement or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Depositor's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Depositor to perform its obligations under this Agreement or and the financial condition of Sale Agreement in accordance with the Depositorterms hereof.
(viv) The transfer No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Depositor of, or compliance by the Depositor with, this Agreement and the Sale Agreement or the consummation of the Trust Mortgage Loans to the Trustee as transactions contemplated herein requires no regulatory hereby, or if any such consent, approval, other than any such approvals as have been obtainedauthorization or order is required, and is not subject to any bulk transfer or similar law in effect in any applicable jurisdiction.
(vii) the Depositor has obtained the same. The Depositor is not transferring the Trust Mortgage Loans hereby represents and warrants to the Trustee with any intent respect to hinder, delay or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left with unreasonably small assets or capital with which to engage in and conduct its business.
(x) The Depositor 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.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xii) No litigation is pending or, to the best of the Depositor's knowledge, threatened against the Depositor that, if determined adversely to the Depositor, would prohibit the Depositor from entering into this Agreement or that, in the Depositor's good faith and reasonable judgment, is likely to materially and adversely affect either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(xiii) Except for any actions that are the express responsibility of another party hereunder or under the each Mortgage Loan Purchase Agreements, and further except for actions that the Depositor is expressly permitted to complete subsequent to as of the Closing Date, the Depositor has taken all actions required under applicable law to effectuate and following the transfer of the Trust Mortgage Loans by the Depositor to the Trustee.
(xiv) Immediately prior to the transfer of the UBS Trust Mortgage Loans to it by the Trust pursuant to this Agreement (and assuming that the UBS Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Trust Mortgage LoanSponsor, free and clear of all liens, claims, encumbrances and other interests), (A) the Depositor had good title to the Mortgage Loans and marketable title tothe Mortgage Notes were subject to no offsets, and was the sole owner and holder ofclaims, each UBS Trust Mortgage Loan; and (B) the Depositor has full right and authority to sellliens, assign and transfer the UBS Trust Mortgage Loansmortgage, exclusive of the servicing rights pertaining theretopledge, charge, security interest, defenses or counterclaims.
(b) The Depositor hereby makes representations and warranties of the Transferor with respect to the Trusteerelated Mortgage Loans in the Transfer Agreement, for which have been assigned to the Trustee's own benefit and the benefit Trustee hereunder, were made as of the Certificateholdersdate specified in the Transfer Agreement and brought forward to the Closing Date pursuant to the Bring Down Letter. The representations and warranties of the Transferor with respect to the Mortgage Loans contained in the Bring Down Letter were made as of the Closing Date. The representations and warranties of the Sponsor with respect to the Mortgage Loans contained in the Sale Agreement were made as of the Closing Date. To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of a representation or warranty of the Sponsor under the Sale Agreement, the obligations of the Sponsor under the Sale Agreement shall be enforced against the Sponsor, as set forth in the Sale Agreement. The Trustee acknowledges that the Depositor shall have no obligation or liability with respect to any breach of any representation or warranty with respect to the Mortgage Loans (except as set forth in Section 2.03(a)(v)) under any circumstances. In addition to the representations and warranties of the Transferor in the Transfer Agreement that were brought forward to the Closing Date pursuant to the Bring Down Letter, with respect to each Xxxxxx Trust Mortgage Loan onlyLoan, the representations and warranties shown on Schedule II heretoTransferor made certain additional covenants regarding such Mortgage Loan, as of the Closing Date or such other date specified in the particular representation and warranty, subject to the exceptions set forth on Schedule III hereto (the headings set forth in Schedule II hereto with the Transfer Agreement. With respect to each representation any breach of such additional covenants that materially and warranty being for convenience adversely affects the interests of reference only and the Certificateholders in no way limiting, expanding or otherwise affecting the scope or subject matter thereof). Except as expressly provided in Section 2.04(a)such Mortgage Loan, the Depositor does not make any representations or warranties regarding the UBS Trust Sponsor shall repurchase such Mortgage LoansLoan in accordance with this Section 2.03.
(c) The representations, warranties and covenants of the Depositor set forth in or made pursuant to Section 2.04(a) and Section 2.04(b) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any NIMs Insurer, the Depositor, the Servicer or the Trustee of a breach of any of such representationsrepresentations and warranties that adversely and materially affects the value of the related Mortgage Loan, warranties and covenantsPrepayment Charges or the interests of the Certificateholders, the party discovering such breach shall give prompt written notice thereof to the other parties. Within 90 days of the discovery of such breach of any representation or warranty, the Sponsor shall either (a) cure such breach in all material respects, (b) repurchase such Mortgage Loan or any property acquired in respect thereof from the Trustee at the Purchase Price or (c) within the two year period following the Closing Date, substitute a Replacement Mortgage Loan for the affected Mortgage Loan. In the event of discovery of a breach of any representation and warranty of the Sponsor, the Trustee's rights shall be enforced under the Sale Agreement for the benefit of Certificateholders and the NIMs Insurer. If a breach of the representations and warranties set forth in the Transfer Agreement hereof exists solely due to the unenforceability of a Prepayment Charge, the Trustee or the other party having notice thereof shall notify the Servicer thereof and not seek to enforce the repurchase remedy provided for herein unless such Mortgage Loan is not current. In the event of a breach of the representations and warranties with respect to the Mortgage Loans set forth in the Transfer Agreement, the Trustee shall enforce the right of the Trust Fund to be indemnified for such breach of representation and warranty. In the event that such breach relates solely to the unenforceability of a Prepayment Charge, amounts received in respect of such indemnity up to the amount of such Prepayment Charge shall be distributed pursuant to Section 4.04(b)(i). As provided in the Sale Agreement, if the Sponsor substitutes for a Mortgage Loan for which there is a breach of any representations and warranties in the Transfer Agreement which adversely and materially affects the value of such Mortgage Loan and such substitute mortgage loan is not a Replacement Mortgage Loan, under the terms of the Sale Agreement, the Sponsor will, in exchange for such substitute Mortgage Loan, (i) provide the applicable Purchase Price for the affected Mortgage Loan or (ii) within two years of the Closing Date, substitute such affected Mortgage Loan with a Replacement Mortgage Loan. Any such substitution shall not be effected prior to the additional delivery to the Trustee of a Request for Release substantially in the form of Exhibit I and shall not be effected unless it is within two years of the Startup Day. The Sponsor indemnifies and holds the Trust Fund, the Trustee, the Depositor, the Servicer, the Custodian, the NIMs Insurer and each Certificateholder harmless against any and all taxes, claims, losses, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, fees and expenses that the Trust Fund, the Trustee, the Depositor, the Servicer, the Custodian, the NIMs Insurer and any Certificateholder may sustain in connection with any actions of the Sponsor relating to a repurchase of a Mortgage Loan other than in compliance with the terms of this Section 2.03 and the Sale Agreement, to the extent that any such action causes (i) any federal or state tax to be imposed on the Trust Fund or any REMIC provided for herein, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup day" under Section 860G(d)(1) of the Code, or (ii) any REMIC created hereunder to fail to qualify as a REMIC at any time that any Certificate is outstanding. In furtherance of the foregoing, if the Sponsor is not a member of MERS and repurchases a Mortgage Loan which is registered on the MERS System, the Sponsor, at its own expense and without any right of reimbursement, shall cause MERS to execute and deliver an assignment of the Mortgage in recordable form to transfer the Mortgage from MERS to the Sponsor and shall cause such Mortgage to be removed from registration on the MERS System in accordance with MERS' rules and regulations. With respect to any Mortgage Loan repurchased by the Sponsor pursuant to the Sale Agreement, the principal portion of the funds received by the Servicer in respect of such repurchase of a Mortgage Loan will be considered a Principal Prepayment and shall be deposited in the Certificate Account pursuant to Section 3.05. Upon receipt by the Trustee of notice from the Servicer of receipt by the Servicer of the full amount of the Purchase Price for a Deleted Mortgage Loan, and upon receipt by the Trustee or the Custodian of the Mortgage File for a Replacement Mortgage Loan substituted for a Deleted Mortgage Loan and a Request for Release, the Trustee or the Custodian shall release and reassign to the Sponsor the related Mortgage File for the Deleted Mortgage Loan and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation or warranty, as shall be necessary to vest in such party or its designee or assignee title to any Deleted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Depositor or the Sponsor, and the Trustee shall have no further responsibility with respect to the Mortgage File relating to such Deleted Mortgage Loan. With respect to each Replacement Mortgage Loan to be delivered to the Trustee or the Custodian pursuant to the terms of this Article II in exchange for a Deleted Mortgage Loan: (i) the Sponsor must deliver to the Trustee or the Custodian the Mortgage File for the Replacement Mortgage Loan containing the documents set forth in Section 2.01 along with a written certification certifying as to the Mortgage Loan satisfying all requirements under the definition of Replacement Mortgage Loan and the delivery of such Mortgage File and containing the granting language set forth in Section 2.01; and (ii) the Depositor will be deemed to have made, with respect to such Replacement Mortgage Loan, each of the representations and warranties made by it with respect to the related Deleted Mortgage Loan. The Trustee or the Custodian shall review the Mortgage File with respect to each Replacement Mortgage Loan and certify to the Depositor that all documents required by Section 2.01(A)-(B), (C) (if applicable), and (D)-(E) have been executed and received. For any month in which the Sponsor substitutes one or more Replacement Mortgage Loans for one or more Deleted Mortgage Loans, the Sponsor will determine the amount (if any) by which the aggregate principal balance of all such Replacement Mortgage Loans as of the date of substitution and the aggregate Prepayment Charges with respect to such Replacement Mortgage Loans is less than the aggregate Stated Principal Balance (after application of the principal portion of the Scheduled Payment due in the month of substitution) and aggregate Prepayment Charges of all such Deleted Mortgage Loans. An amount equal to the aggregate of the deficiencies described in the preceding sentence (such amount, the "Substitution Adjustment Amount") plus an amount equal to any unreimbursed costs, penalties and/or damages incurred by the Trust Fund in connection with any violation relating to such Deleted Mortgage Loan of any predatory or abusive lending law shall be remitted by the Sponsor to the Trustee for deposit into the Certificate Account by the Sponsor on the Determination Date for the Distribution Date relating to the Prepayment Period during which the related Mortgage Loan became required to be purchased or replaced hereunder. Notwithstanding any other provision of this Agreement, the right to substitute Mortgage Loans pursuant to this Article II shall be subject to the additional limitations that no substitution of a Replacement Mortgage Loan for a Deleted Mortgage Loan shall be made unless the Trustee and the NIMs Insurer shall each have received an Opinion of Counsel (at the expense of the party seeking to make the substitution) that, under current law, such substitution will not (A) affect adversely the status of any REMIC established hereunder as a REMIC, or of the related "regular interests" as "regular interests" in any such REMIC, or (B) cause any such REMIC to engage in a "prohibited transaction" or prohibited contribution pursuant to the REMIC Provisions. The Depositor shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Replacement Mortgage Loan or Replacement Mortgage Loans. Upon such substitution by the Sponsor, such Replacement Mortgage Loan or Replacement Mortgage Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and the applicable Sale Agreement, including all applicable representations and warranties thereof included in the applicable Sale Agreement as of the date of substitution.
(d) It is understood and agreed that the representations, warranties and indemnification (i) set forth in this Section 2.03, (ii) of the Sponsor and the Depositor set forth in the Sale Agreement and assigned to the Trustee by the Depositor hereunder and (iii) of each Transferor, assigned by the Sponsor to the Depositor pursuant to the Sale Agreement and assigned to the Trustee by the Depositor hereunder shall each survive delivery of the Mortgage Files and the Assignment of Mortgage of each Mortgage Loan to the Trustee and shall continue throughout the term of this Agreement.
(e) The Depositor shall deliver a copy of the Mortgage Loan Schedule to the Servicer on the Closing Date.
(f) The Depositor shall notify the Servicer and the Trustee when any NIM Notes are issued and when such NIM Notes are no longer outstanding.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Mortgage Loan Asset-Backed Certificates, Series 2006-Rm1)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, warrants and covenants to the Trustee, for its own benefit and the benefit of the Certificateholders, and to the Master Servicer and the Special Servicer, as of the Closing Date, that:
(i) The Depositor is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full power and authority to enter into and consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and delivery by each of the other parties hereto, constitutes a valid, legal and binding obligation of the Depositor, enforceable against the Depositor in accordance with the terms hereof, subject to (A) applicable bankruptcy, insolvency, reorganization, moratorium and other laws affecting the enforcement of creditors' rights generally, and (B) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law.
(v) The Depositor is not in violation of, and its execution and delivery of this Agreement and its performance and compliance with the terms of this Agreement will not constitute a violation of, any law, any order or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Depositor's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(vi) The transfer of the Trust Mortgage Loans to the Trustee as contemplated herein requires no regulatory approval, other than any such approvals as have been obtained, and is not subject to any bulk transfer or similar law in effect in any applicable jurisdiction.
(vii) The Depositor is not transferring the Trust Mortgage Loans to the Trustee with any intent to hinder, delay or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left with unreasonably small assets or capital with which to engage in and conduct its business.
(x) The Depositor 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.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xii) No litigation is pending or, to the best of the Depositor's knowledge, threatened against the Depositor that, if determined adversely to the Depositor, would prohibit the Depositor from entering into this Agreement or that, in the Depositor's good faith and reasonable judgment, is likely to materially and adversely affect either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(xiii) Except for any actions that are the express responsibility of another party hereunder or under the Mortgage Loan Purchase Agreements, and further except for actions that the Depositor is expressly permitted to complete subsequent to the Closing Date, the Depositor has taken all actions required under applicable law to effectuate the transfer of the Trust Mortgage Loans by the Depositor to the Trustee.
(xiv) Immediately prior to the transfer of the UBS Trust Mortgage Loans to the Trust pursuant to this Agreement (and assuming that the UBS Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Trust Mortgage Loan, free and clear of all liens, claims, encumbrances and other interests), (A) the Depositor had good and marketable title to, and was the sole owner and holder of, each UBS Trust Mortgage Loan; and (B) the Depositor has full right and authority to sell, assign and transfer the UBS Trust Mortgage Loans, exclusive of the servicing rights pertaining thereto.
(xv) Immediately prior to the transfer of the KeyBank Trust Mortgage Loans to the Trust pursuant to this Agreement (and assuming that the KeyBank Mortgage Loan Seller transferred to the Depositor good and marketable title to each KeyBank Trust Mortgage Loan, free and clear of all liens, claims, encumbrances and other interests), (A) the Depositor had good and marketable title to, and was the sole owner and holder of, each KeyBank Trust Mortgage Loan; and (B) the Depositor has full right and authority to sell, assign and transfer the KeyBank Trust Mortgage Loans, exclusive of the servicing rights pertaining thereto.
(b) The Depositor hereby makes to the Trustee, for the Trustee's own benefit and the benefit of the Certificateholders, with respect to each Xxxxxx Trust Mortgage Loan only, the representations and warranties shown on Schedule II hereto, as of the Closing Date or such other date specified in the particular representation and warranty, subject to the exceptions set forth on Schedule III hereto (the headings set forth in Schedule II hereto with respect to each representation and warranty being for convenience of reference only and in no way limiting, expanding or otherwise affecting the scope or subject matter thereof). Except as expressly provided in Section 2.04(a), the Depositor does not make any representations or warranties regarding the UBS Trust Mortgage Loans and the KeyBank Trust Mortgage Loans.
(c) The representations, warranties and covenants of the Depositor set forth in or made pursuant to Section 2.04(a) and Section 2.04(b) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any breach of any of such representations, warranties and covenants, the party discovering such breach shall give prompt written notice thereof to the other parties.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (LB-UBS Commercial Mortgage Trust 2006-C7)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, represents and warrants and covenants to the Trustee, for its own benefit and the benefit of the Certificateholders, and to the Master Servicer and the Special ServicerTrustee as follows, as of the Closing Date, thatdate hereof:
(i) The Depositor is duly organized and is validly existing as a corporation duly organized, validly existing and in good standing under the laws of the State of DelawareDelaware and has full power and authority (corporate and other) 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 and the Sale Agreement.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full corporate power and authority to execute, deliver and perform, and to enter into and consummate all the transactions contemplated by by, this Agreement, Agreement and the Sale Agreement and has duly authorized authorized, by all necessary corporate action on its part, the execution, delivery and performance of this Agreement and the Sale Agreement, ; and has duly executed this Agreement and delivered this Agreement.
(iv) This the Sale Agreement, assuming the due authorization, execution and delivery hereof by each of the other parties hereto, constitutes a validlegal, legal valid and binding obligation of the Depositor, enforceable against the Depositor in accordance with the terms hereofits terms, subject subject, as to enforceability, to (Ai) applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally, generally and (Bii) general principles of equity, regardless of whether such enforcement is considered sought in a proceeding in equity or at law.
(viii) The Depositor is not in violation of, and its execution and delivery of this Agreement and its performance the Sale Agreement by the Depositor, the consummation of the transactions contemplated by this Agreement and the Sale Agreement, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Depositor and will not (A) result in a material breach of any term or provision of the charter or by-laws of the Depositor or (B) materially conflict with, result in a violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Depositor is a party or by which it may be bound or (C) constitute a material violation of any statute, order or regulation applicable to the Depositor of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Depositor; and the Depositor is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Depositor's ability to perform or meet any of its obligations under this Agreement.
(iv) No litigation is pending, or, to the best of the Depositor's knowledge, threatened, against the Depositor that would materially and adversely affect the execution, delivery or enforceability of this Agreement will not constitute a violation of, any law, any order and the Sale Agreement or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Depositor's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Depositor to perform its obligations under this Agreement or and the financial condition of Sale Agreement in accordance with the Depositorterms hereof.
(viv) The transfer No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Depositor of, or compliance by the Depositor with, this Agreement and the Sale Agreement or the consummation of the Trust Mortgage Loans to the Trustee as transactions contemplated herein requires no regulatory hereby, or if any such consent, approval, other than any such approvals as have been obtainedauthorization or order is required, and is not subject to any bulk transfer or similar law in effect in any applicable jurisdiction.
(vii) the Depositor has obtained the same. The Depositor is not transferring the Trust Mortgage Loans hereby represents and warrants to the Trustee with any intent respect to hinder, delay or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left with unreasonably small assets or capital with which to engage in and conduct its business.
(x) The Depositor 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.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xii) No litigation is pending or, to the best of the Depositor's knowledge, threatened against the Depositor that, if determined adversely to the Depositor, would prohibit the Depositor from entering into this Agreement or that, in the Depositor's good faith and reasonable judgment, is likely to materially and adversely affect either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(xiii) Except for any actions that are the express responsibility of another party hereunder or under the each Mortgage Loan Purchase Agreements, and further except for actions that the Depositor is expressly permitted to complete subsequent to as of the Closing Date, the Depositor has taken all actions required under applicable law to effectuate and following the transfer of the Trust Mortgage Loans by the Depositor to the Trustee.
(xiv) Immediately prior to the transfer of the UBS Trust Mortgage Loans to it by the Trust pursuant to this Agreement (and assuming that the UBS Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Trust Mortgage LoanSeller, free and clear of all liens, claims, encumbrances and other interests), (A) the Depositor had good title to the Mortgage Loans and marketable title tothe Mortgage Notes were subject to no offsets, and was the sole owner and holder ofclaims, each UBS Trust Mortgage Loan; and (B) the Depositor has full right and authority to sellliens, assign and transfer the UBS Trust Mortgage Loansmortgage, exclusive of the servicing rights pertaining theretopledge, charge, security interest, defenses or counterclaims.
(b) The Depositor hereby makes to the Trustee, for the Trustee's own benefit representations and the benefit warranties of the Certificateholders, Transferor with respect to each Xxxxxx Trust the related Mortgage Loan onlyLoans in the Transfer Agreement, which have been assigned to the Trustee hereunder, were made as of the date specified in the Transfer Agreement (or underlying agreement, if the Transfer Agreement is in the form of an assignment of a prior agreement), except to the extent such representations and warranties shown on Schedule II hereto, were brought forward in the letter agreement dated as of the date hereof from the Transferor to the Seller. The representations and warranties of the Seller with respect to the Mortgage Loans contained in the Sale Agreement were made as of the Closing Date Date. To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of both (i) a representation or warranty of the Transferor under the Transfer Agreement and (ii) a representation or warranty of the Seller under the Sale Agreement, the only right or remedy of the Trustee or of any Certificateholder shall be the Trustee's right to enforce the obligations of the Transferor under any applicable representation or warranty made by it. The Trustee acknowledges that the Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Mortgage Loans if the fact, condition or event constituting such other date specified breach also constitutes a breach of a representation or warranty made by the Transferor in the particular Transfer Agreement, without regard to whether the Transferor fulfills its contractual obligations in respect of such representation and or warranty, subject . The Trustee also acknowledges that the Seller shall have no obligation or liability with respect to any breach of a representation or warranty made solely by the Transferor with respect to the exceptions set forth on Schedule III hereto Mortgage Loans, without regard to whether the Transferor fulfills its contractual obligations in respect of such representation or warranty. The Trustee further acknowledges that the Depositor shall have no obligation or liability with respect to any breach of any representation or warranty with respect to the Mortgage Loans (the headings except as set forth in Schedule II hereto with respect to each representation and warranty being for convenience of reference only and in no way limiting, expanding or otherwise affecting the scope or subject matter thereofSection 2.03(a)(v). Except as expressly provided in Section 2.04(a), the Depositor does not make ) under any representations or warranties regarding the UBS Trust Mortgage Loanscircumstances.
(c) The representations, warranties and covenants of the Depositor set forth in or made pursuant to Section 2.04(a) and Section 2.04(b) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any the Depositor, the Servicer or the Trustee of a breach of any of such representationsrepresentations and warranties that adversely and materially affects the value of the related Mortgage Loan, warranties and covenantsPrepayment Charges or the interests of the Certificateholders, the party discovering such breach shall give prompt written notice thereof to the other parties. Within 90 days of the discovery of such breach of any representation or warranty the Transferor or the Seller, as applicable, shall either (a) cure such breach in all material respects, (b) repurchase such Mortgage Loan or any property acquired in respect thereof from the Trustee at the Purchase Price or (c) within the two year period following the Closing Date, substitute a Replacement Mortgage Loan for the affected Mortgage Loan. In the event of discovery of a breach of any representation and warranty of the Transferor, the Depositor or the Seller, the Trustee shall enforce its rights under the Transfer Agreement or the Sale Agreement for the benefit of the Certificateholders. If a breach of the representations and warranties set forth in the Transfer Agreement exists solely due to the unenforceability of a Prepayment Charge, the Trustee not seek to enforce the repurchase remedy provided for herein unless directed in writing to do so by the Depositor. In the event of a breach of the representations and warranties with respect to the Mortgage Loans set forth in the Transfer Agreement, the Trustee shall enforce the right of the Trust Fund to be indemnified for such breach of representation and warranty. In the event that such breach relates solely to the unenforceability of a Prepayment Charge, amounts received in respect of such indemnity up to the amount of such Prepayment Charge shall be distributed pursuant to Section 4.04(b)(i). As provided in the Sale Agreement, if the Transferor substitutes for a Mortgage Loan for which there is a breach of any representations and warranties in the Transfer Agreement which adversely and materially affects the value of such Mortgage Loan and such substitute mortgage loan is not a Replacement Mortgage Loan, under the terms of the Sale Agreement, the Seller will, in exchange for such substitute Mortgage Loan, (i) provide the applicable Purchase Price for the affected Mortgage Loan or (ii) within two years of the Closing Date, substitute such affected Mortgage Loan with a Replacement Mortgage Loan. Any such substitution shall not be effected prior to the additional delivery to the Trustee of a Request for Release substantially in the form of Exhibit I and shall not be effected unless it is within two years of the Startup Day. As provided in the Sale Agreement, the Seller indemnifies and holds the Trust Fund, the Trustee, the Depositor, the Servicer and each Certificateholder harmless against any and all taxes, claims, losses, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, fees and expenses that the Trust Fund, the Trustee, the Depositor, the Servicer and any Certificateholder may sustain in connection with any actions of the Seller relating to a repurchase of a Mortgage Loan other than in compliance with the terms of this Section 2.03 and the Sale Agreement, to the extent that any such action causes (i) any federal or state tax to be imposed on the Trust Fund or any REMIC provided for herein, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup day" under Section 860(d)(1) of the Code, or (ii) any REMIC created hereunder to fail to qualify as a REMIC at any time that any Certificate is outstanding. With respect to any Mortgage Loan repurchased by the Depositor pursuant to this Agreement, by the Seller pursuant to the Sale Agreement or by the Transferor pursuant to the Transfer Agreement, the principal portion of the funds received by the Servicer in respect of such repurchase of a Mortgage Loan will be considered a Principal Prepayment and shall be deposited by the Servicer in the Collection Account pursuant to Section 3.05(d) and the Servicer shall notify the Trustee of its receipt of the same. The Trustee, upon receipt of the full amount of the Purchase Price for a Deleted Mortgage Loan, or upon receipt of the Mortgage File for a Replacement Mortgage Loan substituted for a Deleted Mortgage Loan, shall release or cause to be released and reassign to the Depositor, the Seller or the Transferor, as applicable, the related Mortgage File for the Deleted Mortgage Loan and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation or warranty as shall be necessary to vest in such party or its designee or assignee title to any Deleted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Trustee, and the Trustee shall not have any further responsibility with respect to the Mortgage File relating to such Deleted Mortgage Loan. With respect to each Replacement Mortgage Loan to be delivered to the Trustee pursuant to the terms of this Article II in exchange for a Deleted Mortgage Loan: (i) the Depositor, the Transferor or the Seller, as applicable, must deliver to the Trustee the Mortgage File for the Replacement Mortgage Loan containing the documents set forth in Section 2.01 along with a written certification certifying as to the delivery of such Mortgage File and containing the granting language set forth in Section 2.01; and (ii) the Depositor will be deemed to have made, with respect to such Replacement Mortgage Loan, each of the representations and warranties made by it with respect to the related Deleted Mortgage Loan. The Trustee shall review the Mortgage File with respect to each Replacement Mortgage Loan and certify to the Depositor that all documents required by Section 2.01 have been executed and received. For any month in which the Seller substitutes one or more Replacement Mortgage Loans for one or more Deleted Mortgage Loans, the Seller will determine the amount (if any) by which the aggregate principal balance of all such Replacement Mortgage Loans as of the date of substitution and the aggregate Prepayment Charges with respect to such Replacement Mortgage Loans is less than the aggregate Stated Principal Balance (after application of the principal portion of the Scheduled Payment due in the month of substitution) and aggregate Prepayment Charges of all such Deleted Mortgage Loans. An amount equal to the aggregate of the deficiencies described in the preceding sentence (such amount, the "Substitution Adjustment Amount") plus an amount equal to any unreimbursed costs, penalties and/or damages incurred by the Trust Fund in connection with any violation relating to such Deleted Mortgage Loan of any predatory or abusive lending law shall be remitted by the Seller to the Servicer for deposit into the Collection Account on the Determination Date for the Distribution Date relating to the Prepayment Period during which the related Mortgage Loan became required to be purchased or replaced hereunder. Notwithstanding any other provision of this Agreement, the right to substitute Mortgage Loans pursuant to this Article II shall be subject to the additional limitations that no substitution of a Replacement Mortgage Loan for a Deleted Mortgage Loan shall be made unless the Trustee shall have received an Opinion of Counsel (at the expense of the party seeking to make the substitution) that, under current law, such substitution will not (A) affect adversely the status of any REMIC established hereunder as a REMIC, or of the related "regular interests" as "regular interests" in any such REMIC, or (B) cause any such REMIC to engage in a "prohibited transaction" or prohibited contribution pursuant to the REMIC Provisions. The Trustee shall cause the relevant Mortgage Loan Schedules to be amended in accordance with the terms of this Agreement. The Seller shall give or cause to be given written notice to the Certificateholders that such substitution has taken place, shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Replacement Mortgage Loan or Replacement Mortgage Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the Servicer and the Trustee. Upon such substitution by the Seller, such Replacement Mortgage Loan or Replacement Mortgage Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and the Sale Agreement, including all applicable representations and warranties thereof included in the Sale Agreement as of the date of substitution.
(d) It is understood and agreed that the representations, warranties and indemnification (i) set forth in this Section 2.03, (ii) of the Seller and the Depositor set forth in the Sale Agreement and assigned to the Trustee by the Depositor hereunder and (iii) of the Transferor, assigned by the Seller to the Depositor pursuant to the Sale Agreement and assigned to the Trustee by the Depositor hereunder shall each survive delivery of the Mortgage Files and the Assignment of Mortgage of each Mortgage Loan to the Trustee and shall continue throughout the term of this Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Trust, Series 2004-Opt1)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, represents and warrants and covenants to the Trustee, for its own benefit and the benefit of the Certificateholders, and to the Master Servicer and the Special ServicerTrustee as follows, as of the Closing Date, thatdate hereof:
(i) The Depositor is duly organized and is validly existing as a corporation duly organized, validly existing and in good standing under the laws of the State of DelawareDelaware and has full power and authority (corporate and other) 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 and the Sale Agreement.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full corporate power and authority to execute, deliver and perform, and to enter into and consummate all the transactions contemplated by by, this Agreement, Agreement and the Sale Agreement and has duly authorized authorized, by all necessary corporate action on its part, the execution, delivery and performance of this Agreement and the Sale Agreement, ; and has duly executed this Agreement and delivered this Agreement.
(iv) This the Sale Agreement, assuming the due authorization, execution and delivery hereof by each of the other parties hereto, constitutes a validlegal, legal valid and binding obligation of the Depositor, enforceable against the Depositor in accordance with the terms hereofits terms, subject subject, as to enforceability, to (Ai) applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally, generally and (Bii) general principles of equity, regardless of whether such enforcement is considered sought in a proceeding in equity or at law.
(viii) The Depositor is not in violation of, and its execution and delivery of this Agreement and its performance the Sale Agreement by the Depositor, the consummation of the transactions contemplated by this Agreement and the Sale Agreement, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Depositor and will not (A) result in a material breach of any term or provision of the charter or by-laws of the Depositor or (B) materially conflict with, result in a violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Depositor is a party or by which it may be bound or (C) constitute a material violation of any statute, order or regulation applicable to the Depositor of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Depositor; and the Depositor is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Depositor's ability to perform or meet any of its obligations under this Agreement.
(iv) No litigation is pending, or, to the best of the Depositor's knowledge, threatened, against the Depositor that would materially and adversely affect the execution, delivery or enforceability of this Agreement will not constitute a violation of, any law, any order and the Sale Agreement or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Depositor's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Depositor to perform its obligations under this Agreement or and the financial condition of Sale Agreement in accordance with the Depositorterms hereof.
(viv) The transfer No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Depositor of, or compliance by the Depositor with, this Agreement and the Sale Agreement or the consummation of the Trust Mortgage Loans to the Trustee as transactions contemplated herein requires no regulatory hereby, or if any such consent, approval, other than any such approvals as have been obtainedauthorization or order is required, and is not subject to any bulk transfer or similar law in effect in any applicable jurisdiction.
(vii) the Depositor has obtained the same. The Depositor is not transferring the Trust Mortgage Loans hereby represents and warrants to the Trustee with any intent respect to hinder, delay or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left with unreasonably small assets or capital with which to engage in and conduct its business.
(x) The Depositor 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.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xii) No litigation is pending or, to the best of the Depositor's knowledge, threatened against the Depositor that, if determined adversely to the Depositor, would prohibit the Depositor from entering into this Agreement or that, in the Depositor's good faith and reasonable judgment, is likely to materially and adversely affect either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(xiii) Except for any actions that are the express responsibility of another party hereunder or under the each Mortgage Loan Purchase Agreements, and further except for actions that the Depositor is expressly permitted to complete subsequent to as of the Closing Date, the Depositor has taken all actions required under applicable law to effectuate and following the transfer of the Trust Mortgage Loans by the Depositor to the Trustee.
(xiv) Immediately prior to the transfer of the UBS Trust Mortgage Loans to it by the Trust pursuant to this Agreement (and assuming that the UBS Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Trust Mortgage LoanSeller, free and clear of all liens, claims, encumbrances and other interests), (A) the Depositor had good title to the Mortgage Loans and marketable title tothe Mortgage Notes were subject to no offsets, and was the sole owner and holder ofclaims, each UBS Trust Mortgage Loan; and (B) the Depositor has full right and authority to sellliens, assign and transfer the UBS Trust Mortgage Loansmortgage, exclusive of the servicing rights pertaining theretopledge, charge, security interest, defenses or counterclaims.
(b) The Depositor hereby makes to the Trustee, for the Trustee's own benefit representations and the benefit warranties of the Certificateholders, Transferor with respect to each Xxxxxx Trust the Mortgage Loan only, Loans contained in the Transfer Agreement were made as of the date of the Transfer Agreement and brought forward to the Closing Date pursuant to the Bring Down Letter. The representations and warranties shown on Schedule II hereto, of the Transferor with respect to the Mortgage Loans contained in the Bring Down Letter were made as of the Closing Date or such other date specified in Date. The representations and warranties of the particular representation and warranty, subject to the exceptions set forth on Schedule III hereto (the headings set forth in Schedule II hereto Seller with respect to each the Mortgage Loans contained in the Sale Agreement were made as of the Closing Date. To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of both (i) a representation or warranty of the Transferor under the Transfer Agreement and (ii) a representation or warranty being for convenience of reference only and in no way limiting, expanding or otherwise affecting the scope or subject matter thereof). Except as expressly provided in Section 2.04(a)Seller under the Sale Agreement, the Depositor does not make only right or remedy of the Trustee or of any representations Certificateholder shall be the Trustee's right to enforce the obligations of the Transferor under any applicable representation or warranties regarding warranty made by it. The Trustee acknowledges that the UBS Trust Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Mortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the Transferor in the Transfer Agreement, without regard to whether the Transferor fulfills its contractual obligations in respect of such representation or warranty. The Trustee also acknowledges that the Seller shall have no obligation or liability with respect to any breach of a representation or warranty made solely by the Transferor with respect to the Mortgage Loans.
(c) , without regard to whether the Transferor fulfills its contractual obligations in respect of such representation or warranty. The representations, warranties and covenants of Trustee further acknowledges that the Depositor set forth in shall have no obligation or made pursuant liability with respect to Section 2.04(a) and Section 2.04(b) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any breach of any of such representations, warranties and covenants, the party discovering such breach shall give prompt written notice thereof representation or warranty with respect to the other partiesMortgage Loans (except as set forth in Section 2.03(a)(v)) under any circumstances.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Trust, Series 2005-Fm1)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, represents and warrants and covenants to the TrusteeServicer, for its own benefit the Trustee and the benefit of the Certificateholders, and to the Master Servicer and the Special ServicerNIMs Insurer as follows, as of the Closing Date, thatdate hereof:
(i) The Depositor is duly organized and is validly existing as a corporation duly organized, validly existing and in good standing under the laws of the State of DelawareDelaware and has full power and authority (corporate and other) 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 and the Sale Agreement.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full corporate power and authority to execute, deliver and perform, and to enter into and consummate all the transactions contemplated by by, this Agreement, Agreement and the Sale Agreement and has duly authorized authorized, by all necessary corporate action on its part, the execution, delivery and performance of this Agreement and the Sale Agreement, ; and has duly executed this Agreement and delivered this Agreement.
(iv) This the Sale Agreement, assuming the due authorization, execution and delivery hereof by each of the other parties hereto, constitutes a validlegal, legal valid and binding obligation of the Depositor, enforceable against the Depositor in accordance with the terms hereofits terms, subject subject, as to enforceability, to (Ai) applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally, generally and (Bii) general principles of equity, regardless of whether such enforcement is considered sought in a proceeding in equity or at law.
(viii) The Depositor is not in violation of, and its execution and delivery of this Agreement and its performance the Sale Agreement by the Depositor, the consummation of the transactions contemplated by this Agreement and the Sale Agreement, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Depositor and will not (A) result in a material breach of any term or provision of the charter or by-laws of the Depositor or (B) materially conflict with, result in a violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Depositor is a party or by which it may be bound or (C) constitute a material violation of any statute, order or regulation applicable to the Depositor of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Depositor; and the Depositor is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Depositor's ability to perform or meet any of its obligations under this Agreement.
(iv) No litigation is pending, or, to the best of the Depositor's knowledge, threatened, against the Depositor that would materially and adversely affect the execution, delivery or enforceability of this Agreement will not constitute a violation of, any law, any order and the Sale Agreement or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Depositor's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Depositor to perform its obligations under this Agreement or and the financial condition of Sale Agreement in accordance with the Depositorterms hereof.
(viv) The transfer No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Depositor of, or compliance by the Depositor with, this Agreement and the Sale Agreement or the consummation of the Trust Mortgage Loans to the Trustee as transactions contemplated herein requires no regulatory hereby, or if any such consent, approval, other than any such approvals as have been obtainedauthorization or order is required, and is not subject to any bulk transfer or similar law in effect in any applicable jurisdiction.
(vii) the Depositor has obtained the same. The Depositor is not transferring the Trust Mortgage Loans hereby represents and warrants to the Trustee with any intent respect to hinder, delay or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left with unreasonably small assets or capital with which to engage in and conduct its business.
(x) The Depositor 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.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xii) No litigation is pending or, to the best of the Depositor's knowledge, threatened against the Depositor that, if determined adversely to the Depositor, would prohibit the Depositor from entering into this Agreement or that, in the Depositor's good faith and reasonable judgment, is likely to materially and adversely affect either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(xiii) Except for any actions that are the express responsibility of another party hereunder or under the each Mortgage Loan Purchase Agreements, and further except for actions that the Depositor is expressly permitted to complete subsequent to as of the Closing Date, the Depositor has taken all actions required under applicable law to effectuate and following the transfer of the Trust Mortgage Loans by the Depositor to the Trustee.
(xiv) Immediately prior to the transfer of the UBS Trust Mortgage Loans to it by the Trust pursuant to this Agreement (and assuming that the UBS Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Trust Mortgage LoanSponsor, free and clear of all liens, claims, encumbrances and other interests), (A) the Depositor had good title to the Mortgage Loans and marketable title tothe Mortgage Notes were subject to no offsets, and was the sole owner and holder ofclaims, each UBS Trust Mortgage Loan; and (B) the Depositor has full right and authority to sellliens, assign and transfer the UBS Trust Mortgage Loansmortgage, exclusive of the servicing rights pertaining theretopledge, charge, security interest, defenses or counterclaims.
(b) The Depositor hereby makes to the Trustee, for the Trustee's own benefit representations and the benefit warranties of the Certificateholders, Seller with respect to each Xxxxxx Trust the Mortgage Loan onlyLoans in the Sale Agreement, which have been assigned to the representations and warranties shown on Schedule II heretoTrustee hereunder, were made as of the Closing Date or such other date as specified in the particular Sale Agreement. To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of a representation and warrantyor warranty of the Seller under the Sale Agreement, subject the only right or remedy of the Trustee or any Certificateholder shall be the Trustee' right to enforce the obligations of the Seller under any applicable representation or warranty made by it. The Trustee acknowledges that the Depositor shall have no obligation or liability with respect to any breach of any representation or warranty with respect to the exceptions set forth on Schedule III hereto Mortgage Loans (the headings except as set forth in Schedule II hereto with respect to each representation and warranty being for convenience of reference only and in no way limiting, expanding or otherwise affecting the scope or subject matter thereofSection 2.03(a)(v). Except as expressly provided in Section 2.04(a), the Depositor does not make ) under any representations or warranties regarding the UBS Trust Mortgage Loanscircumstances.
(c) The representations, warranties and covenants of the Depositor set forth in or made pursuant to Section 2.04(a) and Section 2.04(b) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any the Depositor, the Servicer, the Seller, the Trustee (or its custodian) or the NIMs Insurer of a breach of any of such representationsrepresentations and warranties set forth in the Sale Agreement that adversely and materially affects the value of the related Mortgage Loan, warranties and covenantsPrepayment Charges or the interests of the Certificateholders, the party discovering such breach shall give prompt written notice thereof to the other parties. Within ninety (90) days of the discovery of such breach of any representation or warranty, the Depositor shall cause the Seller to either (a) cure such breach in all material respects, (b) repurchase such Mortgage Loan or any property acquired in respect thereof from the Trustee at the Purchase Price or (c) within the two year period following the Closing Date, substitute a Replacement Mortgage Loan for the affected Mortgage Loan. If a breach of the representations and warranties set forth in the Purchase Agreement hereof exists solely due to the unenforceability of a Prepayment Charge, the Trustee or the other party having notice thereof shall notify the Servicer thereof and not seek to enforce the repurchase remedy provided for herein unless such Mortgage Loan is not current. In the event that such breach relates solely to the unenforceability of a Prepayment Charge, amounts received in respect of such indemnity up to the amount of such Prepayment Charge shall be distributed pursuant to Section 4.04(b)(i). As provided in the Sale Agreement, if the Seller substitutes for a Mortgage Loan for which there is a breach of any representation or warranty in the Sale Agreement, as applicable, which adversely and materially affects the value of such Mortgage Loan and such substitute mortgage loan is not a Replacement Mortgage Loan, under the terms of the Sale Agreement, the Seller will, in exchange for such substitute Mortgage Loan, (i) provide the applicable Purchase Price for the affected Mortgage Loan or (ii) within two years of the Closing Date, substitute such affected Mortgage Loan with a Replacement Mortgage Loan. Any such substitution shall not be effected prior to the additional delivery to the Trustee of a Request for Release substantially in the form of Exhibit I and shall not be effected unless it is within two years of the Startup Day. With respect to any Mortgage Loan repurchased by the Seller pursuant to the Sale Agreement, as applicable, the principal portion of the funds received by the Servicer in respect of such repurchase of a Mortgage Loan will be considered a Principal Prepayment and shall be deposited in the Certificate Account pursuant to Section 3.05. Upon receipt by the Trustee of notice from the Servicer of receipt by the Servicer of the full amount of the Purchase Price for a Deleted Mortgage Loan, and upon receipt by the Trustee of the Mortgage File for a Replacement Mortgage Loan substituted for a Deleted Mortgage Loan and a Request for Release, the Trustee shall release and reassign to the Seller the related Mortgage File for the Deleted Mortgage Loan and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation or warranty, as shall be necessary to vest in such party or its designee or assignee title to any Deleted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Depositor or the Seller, and the Trustee (and its custodian) shall have no further responsibility with respect to the Mortgage File relating to such Deleted Mortgage Loan. With respect to each Replacement Mortgage Loan to be delivered to the Trustee pursuant to the terms of this Article II in exchange for a Deleted Mortgage Loan: (i) the Seller must deliver to the Trustee the Mortgage File for the Replacement Mortgage Loan containing the documents set forth in Section 2.01 along with a written certification certifying as to the Mortgage Loan satisfying all requirements under the definition of Replacement Mortgage Loan and the delivery of such Mortgage File and containing the granting language set forth in Section 2.01; and (ii) the Depositor will be deemed to have made, with respect to such Replacement Mortgage Loan, each of the representations and warranties made by it with respect to the related Deleted Mortgage Loan. The Trustee shall review the Mortgage File with respect to each Replacement Mortgage Loan and certify to the Depositor that all documents required by Section 2.01(A)-(B), (C) (if applicable), and (D)-(E) have been executed and received. For any month in which a Seller substitutes one or more Replacement Mortgage Loans for one or more Deleted Mortgage Loans, the Seller will determine the amount (if any) by which the aggregate principal balance of all such Replacement Mortgage Loans as of the date of substitution and the aggregate Prepayment Charges with respect to such Replacement Mortgage Loans is less than the aggregate Stated Principal Balance (after application of the principal portion of the Scheduled Payment due in the month of substitution) and aggregate Prepayment Charges of all such Deleted Mortgage Loans. An amount equal to the aggregate of the deficiencies described in the preceding sentence (such amount, the "Substitution Adjustment Amount") plus an amount equal to any unreimbursed costs, penalties and/or damages incurred by the Trust Fund in connection with any violation relating to such Deleted Mortgage Loan of any predatory or abusive lending law shall be remitted by the Seller to the Trustee for deposit into the Certificate Account by the Seller on the Determination Date for the Distribution Date relating to the Prepayment Period during which the related Mortgage Loan became required to be purchased or replaced hereunder. Notwithstanding any other provision of this Agreement, the right to substitute Mortgage Loans pursuant to this Article II shall be subject to the additional limitations that no substitution of a Replacement Mortgage Loan for a Deleted Mortgage Loan shall be made unless the Trustee shall have received an Opinion of Counsel (at the expense of the party seeking to make the substitution) that, under current law, such substitution will not (A) affect adversely the status of any REMIC established hereunder as a REMIC, or of the related "regular interests" as "regular interests" in any such REMIC, or (B) cause any such REMIC to engage in a "prohibited transaction" or prohibited contribution pursuant to the REMIC Provisions. The Depositor shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Replacement Mortgage Loan or Replacement Mortgage Loans. Upon such substitution by the Seller, such Replacement Mortgage Loan or Replacement Mortgage Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and the Sale Agreement, as applicable, including all applicable representations and warranties thereof included in the Sale Agreement, as applicable, as of the date of substitution.
(d) It is understood and agreed that the representations, warranties and indemnification (i) set forth in this Section 2.03 and (ii) of the Seller set forth in the Sale Agreement and assigned to the Trustee by the Depositor hereunder shall each survive delivery of the Mortgage Files and the Assignment of Mortgage of each Mortgage Loan to the Trustee and shall continue throughout the term of this Agreement.
(e) The Depositor shall deliver a copy of the Mortgage Loan Schedule to the Servicer on the Closing Date.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Trust, Series 2007-Sd1)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, represents and warrants and covenants to the Trustee, for its own benefit and the benefit of the Certificateholders, and to the Master Servicer and the Special ServicerTrustee as follows, as of the Closing Date, thatdate hereof:
(i) The Depositor is duly organized and is validly existing as a corporation duly organized, validly existing and in good standing under the laws of the State of DelawareDelaware and has full power and authority (corporate and other) 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 and the Sale Agreement.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full corporate power and authority to execute, deliver and perform, and to enter into and consummate all the transactions contemplated by by, this Agreement, Agreement and the Sale Agreement and has duly authorized authorized, by all necessary corporate action on its part, the execution, delivery and performance of this Agreement and the Sale Agreement, ; and has duly executed this Agreement and delivered this Agreement.
(iv) This the Sale Agreement, assuming the due authorization, execution and delivery hereof by each of the other parties hereto, constitutes a validlegal, legal valid and binding obligation of the Depositor, enforceable against the Depositor in accordance with the terms hereofits terms, subject subject, as to enforceability, to (Ai) applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally, generally and (Bii) general principles of equity, regardless of whether such enforcement is considered sought in a proceeding in equity or at law.
(viii) The Depositor is not in violation of, and its execution and delivery of this Agreement and its performance the Sale Agreement by the Depositor, the consummation of the transactions contemplated by this Agreement and the Sale Agreement, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Depositor and will not (A) result in a material breach of any term or provision of the charter or by-laws of the Depositor or (B) materially conflict with, result in a violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Depositor is a party or by which it may be bound or (C) constitute a material violation of any statute, order or regulation applicable to the Depositor of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Depositor; and the Depositor is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Depositor's ability to perform or meet any of its obligations under this Agreement.
(iv) No litigation is pending, or, to the best of the Depositor's knowledge, threatened, against the Depositor that would materially and adversely affect the execution, delivery or enforceability of this Agreement will not constitute a violation of, any law, any order and the Sale Agreement or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Depositor's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Depositor to perform its obligations under this Agreement or and the financial condition of Sale Agreement in accordance with the Depositorterms hereof.
(viv) The transfer No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Depositor of, or compliance by the Depositor with, this Agreement and the Sale Agreement or the consummation of the Trust Mortgage Loans to the Trustee as transactions contemplated herein requires no regulatory hereby, or if any such consent, approval, other than any such approvals as have been obtainedauthorization or order is required, and is not subject to any bulk transfer or similar law in effect in any applicable jurisdiction.
(vii) the Depositor has obtained the same. The Depositor is not transferring the Trust Mortgage Loans hereby represents and warrants to the Trustee with any intent respect to hinder, delay or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left with unreasonably small assets or capital with which to engage in and conduct its business.
(x) The Depositor 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.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xii) No litigation is pending or, to the best of the Depositor's knowledge, threatened against the Depositor that, if determined adversely to the Depositor, would prohibit the Depositor from entering into this Agreement or that, in the Depositor's good faith and reasonable judgment, is likely to materially and adversely affect either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(xiii) Except for any actions that are the express responsibility of another party hereunder or under the each Mortgage Loan Purchase Agreements, and further except for actions that the Depositor is expressly permitted to complete subsequent to as of the Closing Date, the Depositor has taken all actions required under applicable law to effectuate and following the transfer of the Trust Mortgage Loans by the Depositor to the Trustee.
(xiv) Immediately prior to the transfer of the UBS Trust Mortgage Loans to it by the Trust pursuant to this Agreement (and assuming that the UBS Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Trust Mortgage LoanSponsor, free and clear of all liens, claims, encumbrances and other interests), (A) the Depositor had good title to the Mortgage Loans and marketable title tothe Mortgage Notes were subject to no offsets, and was the sole owner and holder ofclaims, each UBS Trust Mortgage Loan; and (B) the Depositor has full right and authority to sellliens, assign and transfer the UBS Trust Mortgage Loansmortgage, exclusive of the servicing rights pertaining theretopledge, charge, security interest, defenses or counterclaims.
(b) The Depositor hereby makes to the Trustee, for the Trustee's own benefit representations and the benefit warranties of the Certificateholders, Sponsor with respect to each Xxxxxx Trust the Mortgage Loan only, Loans contained in the representations and warranties shown on Schedule II hereto, Sale Agreement were made as of the Closing Date Date. To the extent that any fact, condition or such other date specified in event with respect to a Mortgage Loan constitutes a breach of a representation or warranty of the particular Sponsor under the Sale Agreement, the only right or remedy of the Trustee or any Certificateholder shall be the Trustee' right to enforce the obligations of the Seller under any applicable representation and warranty, subject or warranty made by it. The Trustee acknowledges that the Depositor shall have no obligation or liability with respect to any breach of any representation or warranty with respect to the exceptions set forth on Schedule III hereto Mortgage Loans (the headings except as set forth in Schedule II hereto with respect to each representation and warranty being for convenience of reference only and in no way limiting, expanding or otherwise affecting the scope or subject matter thereofSection 2.03(a)(v). Except as expressly provided in Section 2.04(a), the Depositor does not make ) under any representations or warranties regarding the UBS Trust Mortgage Loanscircumstances.
(c) The representations, warranties and covenants of the Depositor set forth in or made pursuant to Section 2.04(a) and Section 2.04(b) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any the Depositor, the Servicer or the Trustee (or its custodian) of a breach of any of such representationsrepresentations and warranties set forth in the Sale Agreement that adversely and materially affects the value of the related Mortgage Loan, warranties and covenantsPrepayment Charges or the interests of the Certificateholders, the party discovering such breach shall give prompt written notice thereof to the other parties. Within 90 days of the discovery of such breach of any representation or warranty, the Sponsor shall either (a) cure such breach in all material respects, (b) repurchase such Mortgage Loan or any property acquired in respect thereof from the Trustee at the Purchase Price or (c) within the two year period following the Closing Date, substitute a Replacement Mortgage Loan for the affected Mortgage Loan. In the event of discovery of a breach of any representation and warranty of the Sponsor, the Trustee shall enforce its rights under the Sale Agreement for the benefit of Certificateholders. If a breach of the representations and warranties set forth in the Sale Agreement exists solely due to the unenforceability of a Prepayment Charge, the Trustee or the other party having notice thereof shall notify the Servicer thereof and not seek to enforce the repurchase remedy provided for herein unless such Mortgage Loan is not current. In the event of a breach of the representations and warranties with respect to the Mortgage Loans set forth in the Sale Agreement, the Trustee shall enforce the right of the Issuing Entity to be indemnified for such breach of representation and warranty. In the event that such breach relates solely to the unenforceability of a Prepayment Charge, amounts received in respect of such indemnity up to the amount of such Prepayment Charge shall be distributed pursuant to Section 4.04(b)(i). As provided in the Sale Agreement, if the Sponsor substitutes for a Mortgage Loan for which there is a breach of any representations and warranties in the Sale Agreement which adversely and materially affects the value of such Mortgage Loan and such substitute mortgage loan is not a Replacement Mortgage Loan, under the terms of the Sale Agreement, the Sponsor will, in exchange for such substitute Mortgage Loan, (i) provide the applicable Purchase Price for the affected Mortgage Loan or (ii) within two years of the Closing Date, substitute such affected Mortgage Loan with a Replacement Mortgage Loan. Any such substitution shall not be effected prior to the additional delivery to the Trustee of a Request for Release substantially in the form of Exhibit I and shall not be effected unless it is within two years of the Startup Day. The Sponsor indemnifies and holds the Issuing Entity, the Trustee (or its custodian, as applicable), the Depositor, the Servicer and each Certificateholder harmless against any and all taxes, claims, losses, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, fees and expenses that the Issuing Entity, the Trustee (or its custodian, as applicable), the Depositor, the Servicer and any Certificateholder may sustain in connection with any actions of the Sponsor relating to a repurchase of a Mortgage Loan other than in compliance with the terms of this Section 2.03 and the Sale Agreement, to the extent that any such action causes (i) any federal or state tax to be imposed on the Issuing Entity or any REMIC provided for herein, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup day" under Section 860G(d)(1) of the Code, or (ii) any REMIC created hereunder to fail to qualify as a REMIC at any time that any Certificate is outstanding. In furtherance of the foregoing, if the Sponsor is not a member of MERS and repurchases a Mortgage Loan which is registered on the MERS System, the Sponsor, at its own expense and without any right of reimbursement, shall cause MERS to execute and deliver an assignment of the Mortgage in recordable form to transfer the Mortgage from MERS to the Sponsor and shall cause such Mortgage to be removed from registration on the MERS System in accordance with MERS' rules and regulations. With respect to any Mortgage Loan repurchased by the Sponsor pursuant to the Sale Agreement, the principal portion of the funds received by the Servicer in respect of such repurchase of a Mortgage Loan will be considered a Principal Prepayment and shall be deposited in the Certificate Account pursuant to Section 3.05. Upon receipt by the Trustee of notice from the Servicer of receipt by the Servicer of the full amount of the Purchase Price for a Deleted Mortgage Loan, and upon receipt by the Trustee of the Mortgage File for a Replacement Mortgage Loan substituted for a Deleted Mortgage Loan and a Request for Release, the Trustee shall release and reassign to the Sponsor the related Mortgage File for the Deleted Mortgage Loan and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation or warranty, as shall be necessary to vest in such party or its designee or assignee title to any Deleted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Depositor, the Sponsor and the Trustee (and its custodian) shall have no further responsibility with respect to the Mortgage File relating to such Deleted Mortgage Loan. With respect to each Replacement Mortgage Loan to be delivered to the Trustee pursuant to the terms of this Article II in exchange for a Deleted Mortgage Loan: (i) the Sponsor must deliver to the Trustee the Mortgage File for the Replacement Mortgage Loan containing the documents set forth in Section 2.01 along with a written certification certifying as to the Mortgage Loan satisfying all requirements under the definition of Replacement Mortgage Loan and the delivery of such Mortgage File and containing the granting language set forth in Section 2.01; and (ii) the Depositor will be deemed to have made, with respect to such Replacement Mortgage Loan, each of the representations and warranties made by it with respect to the related Deleted Mortgage Loan. The Trustee shall review the Mortgage File with respect to each Replacement Mortgage Loan and certify to the Depositor that all documents required by Section 2.01(A)-(B), (C) (if applicable), and (D)-(E) have been executed and received. For any month in which the Sponsor substitutes one or more Replacement Mortgage Loans for one or more Deleted Mortgage Loans, the Sponsor will determine the amount (if any) by which the aggregate principal balance of all such Replacement Mortgage Loans as of the date of substitution and the aggregate Prepayment Charges with respect to such Replacement Mortgage Loans is less than the aggregate Stated Principal Balance (after application of the principal portion of the Scheduled Payment due in the month of substitution) and aggregate Prepayment Charges of all such Deleted Mortgage Loans. An amount equal to the aggregate of the deficiencies described in the preceding sentence (such amount, the "Substitution Adjustment Amount") plus an amount equal to any unreimbursed costs, penalties and/or damages incurred by the Issuing Entity in connection with any violation relating to such Deleted Mortgage Loan of any predatory or abusive lending law shall be remitted by the Sponsor to the Trustee for deposit into the Certificate Account by the Sponsor on the Determination Date for the Distribution Date relating to the Prepayment Period during which the related Mortgage Loan became required to be purchased or replaced hereunder. Notwithstanding any other provision of this Agreement, the right to substitute Mortgage Loans pursuant to this Article II shall be subject to the additional limitations that no substitution of a Replacement Mortgage Loan for a Deleted Mortgage Loan shall be made unless the Trustee shall have received an Opinion of Counsel (at the expense of the party seeking to make the substitution) that, under current law, such substitution will not (A) affect adversely the status of any REMIC established hereunder as a REMIC, or of the related "regular interests" as "regular interests" in any such REMIC, or (B) cause any such REMIC to engage in a "prohibited transaction" or prohibited contribution pursuant to the REMIC Provisions. The Depositor shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Replacement Mortgage Loan or Replacement Mortgage Loans. Upon such substitution by the Sponsor, such Replacement Mortgage Loan or Replacement Mortgage Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and the applicable Sale Agreement, including all applicable representations and warranties thereof included in the applicable Sale Agreement as of the date of substitution.
(d) It is understood and agreed that the representations, warranties and indemnification (i) set forth in this Section 2.03 and (ii) of the Sponsor and the Depositor set forth in the Sale Agreement and assigned to the Trustee by the Depositor hereunder shall each survive delivery of the Mortgage Files and the Assignment of Mortgage of each Mortgage Loan to the Trustee and shall continue throughout the term of this Agreement.
(e) The Depositor shall deliver a copy of the Mortgage Loan Schedule to the Servicer on the Closing Date.
(f) The Depositor shall notify the Servicer and the Trustee when any NIM Notes are issued and when such NIM Notes are no longer outstanding.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Trust Series 2006-Sd1)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, represents and warrants and covenants to the Trustee, for its own benefit and the benefit of the Certificateholders, and to the Master Servicer and the Special ServicerTrustee as follows, as of the Closing Date, thatdate hereof:
(i) The Depositor is duly organized and is validly existing as a corporation duly organized, validly existing and in good standing under the laws of the State of DelawareDelaware and has full power and authority (corporate and other) 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 and the Purchase Agreement.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full corporate power and authority to execute, deliver and perform, and to enter into and consummate all the transactions contemplated by by, this Agreement, Agreement and the Purchase Agreement and has duly authorized authorized, by all necessary corporate action on its part, the execution, delivery and performance of this Agreement and the Purchase Agreement, ; and has duly executed this Agreement and delivered this Agreement.
(iv) This the Purchase Agreement, assuming the due authorization, execution and delivery hereof by each of the other parties hereto, constitutes a validlegal, legal valid and binding obligation of the Depositor, enforceable against the Depositor in accordance with the terms hereofits terms, subject subject, as to enforceability, to (Ai) applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally, generally and (Bii) general principles of equity, regardless of whether such enforcement is considered sought in a proceeding in equity or at law.
(viii) The Depositor is not in violation of, and its execution and delivery of this Agreement and its performance the Purchase Agreement by the Depositor, the consummation of the transactions contemplated by this Agreement and the Purchase Agreement, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Depositor and will not (A) result in a material breach of any term or provision of the charter or by-laws of the Depositor or (B) materially conflict with, result in a violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Depositor is a party or by which it may be bound or (C) constitute a material violation of any statute, order or regulation applicable to the Depositor of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Depositor; and the Depositor is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any xxxxx, xxxxxxxxxx body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Depositor's ability to perform or meet any of its obligations under this Agreement.
(iv) No litigation is pending, or, to the best of the Depositor's knowledge, threatened, against the Depositor that would materially and adversely affect the execution, delivery or enforceability of this Agreement will not constitute a violation of, any law, any order and the Purchase Agreement or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Depositor's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Depositor to perform its obligations under this Agreement or and the financial condition of Purchase Agreement in accordance with the Depositorterms hereof.
(viv) The transfer No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Depositor of, or compliance by the Depositor with, this Agreement and the Purchase Agreement or the consummation of the Trust Mortgage Loans to the Trustee as transactions contemplated herein requires no regulatory hereby, or if any such consent, approval, other than any such approvals as have been obtainedauthorization or order is required, and is not subject to any bulk transfer or similar law in effect in any applicable jurisdiction.
(vii) the Depositor has obtained the same. The Depositor is not transferring the Trust Mortgage Loans hereby represents and warrants to the Trustee with any intent respect to hinder, delay or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left with unreasonably small assets or capital with which to engage in and conduct its business.
(x) The Depositor 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.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xii) No litigation is pending or, to the best of the Depositor's knowledge, threatened against the Depositor that, if determined adversely to the Depositor, would prohibit the Depositor from entering into this Agreement or that, in the Depositor's good faith and reasonable judgment, is likely to materially and adversely affect either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(xiii) Except for any actions that are the express responsibility of another party hereunder or under the each Mortgage Loan Purchase Agreements, and further except for actions that the Depositor is expressly permitted to complete subsequent to as of the Closing Date, the Depositor has taken all actions required under applicable law to effectuate and following the transfer of the Trust Mortgage Loans by the Depositor to the Trustee.
(xiv) Immediately prior to the transfer of the UBS Trust Mortgage Loans to it by the Trust pursuant to this Agreement (and assuming that the UBS Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Trust Mortgage LoanSponsor, free and clear of all liens, claims, encumbrances and other interests), (A) the Depositor had good title to the Mortgage Loans and marketable title tothe Mortgage Notes were subject to no offsets, and was the sole owner and holder ofclaims, each UBS Trust Mortgage Loan; and (B) the Depositor has full right and authority to sellliens, assign and transfer the UBS Trust Mortgage Loansmortgage, exclusive of the servicing rights pertaining theretopledge, charge, security interest, defenses or counterclaims.
(b) The Depositor hereby makes to the Trustee, for the Trustee's own benefit representations and the benefit warranties of the Certificateholders, Sponsor with respect to each Xxxxxx Trust the Mortgage Loan only, Loans contained in the representations and warranties shown on Schedule II hereto, Purchase Agreement were made as of the Closing Date Date. To the extent that any fact, condition or such other date specified in event with respect to a Mortgage Loan constitutes a breach of a representation or warranty of the particular representation and warrantySponsor under the Purchase Agreement, subject to the exceptions set forth on Schedule III hereto (obligations of the headings Sponsor under the Purchase Agreement shall be enforced against the Sponsor, as set forth in Schedule II hereto the Purchase Agreement. The Trustee acknowledges that the Depositor shall have no obligation or liability with respect to each any breach of any representation and or warranty being for convenience of reference only and in no way limiting, expanding or otherwise affecting with respect to the scope or subject matter thereof). Except Mortgage Loans (except as expressly provided set forth in Section 2.04(a2.03(a)(v), the Depositor does not make ) under any representations or warranties regarding the UBS Trust Mortgage Loanscircumstances.
(c) The representations, warranties and covenants of the Depositor set forth in or made pursuant to Section 2.04(a) and Section 2.04(b) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any the Depositor, the Servicer or the Trustee (or its custodian) of a breach of any of such representationsrepresentations and warranties that adversely and materially affects the value of the related Mortgage Loan, warranties and covenantsPrepayment Charges or the interests of the Certificateholders, the party discovering such breach shall give prompt written notice thereof to the other parties. Within ninety (90) days of the discovery of such breach of any representation or warranty, the Sponsor shall either (a) cure such breach in all material respects, (b) repurchase such Mortgage Loan or any property acquired in respect thereof from the Trustee at the Purchase Price or (c) within the two year period following the Closing Date, substitute a Replacement Mortgage Loan for the affected Mortgage Loan. In the event of discovery of a breach of any representation and warranty of the Sponsor, the Trustee's rights shall be enforced under the Purchase Agreement for the benefit of Certificateholders. If a breach of the representations and warranties set forth in the Purchase Agreement exists solely due to the unenforceability of a Prepayment Charge, the Trustee or the other party having notice thereof shall notify the Servicer thereof and not seek to enforce the repurchase remedy provided for herein unless such Mortgage Loan is not current. In the event that such breach relates solely to the unenforceability of a Prepayment Charge, amounts received in respect of such indemnity up to the amount of such Prepayment Charge shall be distributed pursuant to Section 4.04(b)(i). As provided in the Purchase Agreement, if the Sponsor substitutes for a Mortgage Loan for which there is a breach of any representations and warranties in the Purchase Agreement which adversely and materially affects the value of such Mortgage Loan and such substitute mortgage loan is not a Replacement Mortgage Loan, under the terms of the Purchase Agreement, the Sponsor will, in exchange for such substitute Mortgage Loan, (i) provide the applicable Purchase Price for the affected Mortgage Loan or (ii) within two years of the Closing Date, substitute such affected Mortgage Loan with a Replacement Mortgage Loan. Any such substitution shall not be effected prior to the additional delivery to the Trustee of a Request for Release substantially in the form of Exhibit I and shall not be effected unless it is within two years of the Startup Day. As provided in the Purchase Agreement, the Sponsor indemnifies and holds the Issuing Entity, the Trustee (or its custodian, as applicable), the Depositor, the Servicer and each Certificateholder harmless against any and all taxes, claims, losses, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, fees and expenses that the Issuing Entity, the Trustee (or its custodian, as applicable), the Depositor, the Servicer and any Certificateholder may sustain in connection with any actions of the Sponsor relating to a repurchase of a Mortgage Loan other than in compliance with the terms of this Section 2.03 and the Purchase Agreement, to the extent that any such action causes (i) any federal or state tax to be imposed on the Issuing Entity or any REMIC provided for herein, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup day" under Section 860G(d)(1) of the Code, or (ii) any REMIC created hereunder to fail to qualify as a REMIC at any time that any Certificate is outstanding. In furtherance of the foregoing, if the Sponsor is not a member of MERS and repurchases a Mortgage Loan which is registered on the MERS System, the Sponsor, at its own expense and without any right of reimbursement, shall cause MERS to execute and deliver an assignment of the Mortgage in recordable form to transfer the Mortgage from MERS to the Sponsor and shall cause such Mortgage to be removed from registration on the MERS System in accordance with MERS' rules and regulations. With respect to any Mortgage Loan repurchased by the Sponsor pursuant to the Purchase Agreement, the principal portion of the funds received by the Servicer in respect of such repurchase of a Mortgage Loan will be considered a Principal Prepayment and shall be deposited in the Certificate Account pursuant to Section 3.05. Upon receipt by the Trustee of notice from the Servicer of receipt by the Servicer of the full amount of the Purchase Price for a Deleted Mortgage Loan, and upon receipt by the Trustee of the Mortgage File for a Replacement Mortgage Loan substituted for a Deleted Mortgage Loan and a Request for Release, the Trustee shall release and reassign to the Sponsor the related Mortgage File for the Deleted Mortgage Loan and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation or warranty, as shall be necessary to vest in such party or its designee or assignee title to any Deleted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Depositor or the Sponsor, and the Trustee (and its custodian) shall have no further responsibility with respect to the Mortgage File relating to such Deleted Mortgage Loan. With respect to each Replacement Mortgage Loan to be delivered to the Trustee pursuant to the terms of this Article II in exchange for a Deleted Mortgage Loan: (i) the Sponsor must deliver to the Trustee the Mortgage File for the Replacement Mortgage Loan containing the documents set forth in Section 2.01 along with a written certification certifying as to the Mortgage Loan satisfying all requirements under the definition of Replacement Mortgage Loan and the delivery of such Mortgage File and containing the granting language set forth in Section 2.01; and (ii) the Depositor will be deemed to have made, with respect to such Replacement Mortgage Loan, each of the representations and warranties made by it with respect to the related Deleted Mortgage Loan. The Trustee shall review the Mortgage File with respect to each Replacement Mortgage Loan and certify to the Depositor that all documents required by Section 2.01(A)-(B), (C) (if applicable), and (D)-(E) have been executed and received. For any month in which the Sponsor substitutes one or more Replacement Mortgage Loans for one or more Deleted Mortgage Loans, the Sponsor will determine the amount (if any) by which the aggregate principal balance of all such Replacement Mortgage Loans as of the date of substitution and the aggregate Prepayment Charges with respect to such Replacement Mortgage Loans is less than the aggregate Stated Principal Balance (after application of the principal portion of the Scheduled Payment due in the month of substitution) and aggregate Prepayment Charges of all such Deleted Mortgage Loans. An amount equal to the aggregate of the deficiencies described in the preceding sentence (such amount, the "Substitution Adjustment Amount") plus an amount equal to any unreimbursed costs, penalties and/or damages incurred by the Trust Fund in connection with any violation relating to such Deleted Mortgage Loan of any predatory or abusive lending law shall be remitted by the Sponsor to the Trustee for deposit into the Certificate Account by the Sponsor on the Determination Date for the Distribution Date relating to the Prepayment Period during which the related Mortgage Loan became required to be purchased or replaced hereunder. Notwithstanding any other provision of this Agreement, the right to substitute Mortgage Loans pursuant to this Article II shall be subject to the additional limitations that no substitution of a Replacement Mortgage Loan for a Deleted Mortgage Loan shall be made unless the Trustee shall have received an Opinion of Counsel (at the expense of the party seeking to make the substitution) that, under current law, such substitution will not (A) affect adversely the status of any REMIC established hereunder as a REMIC, or of the related "regular interests" as "regular interests" in any such REMIC, or (B) cause any such REMIC to engage in a "prohibited transaction" or prohibited contribution pursuant to the REMIC Provisions. The Depositor shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Replacement Mortgage Loan or Replacement Mortgage Loans. Upon such substitution by the Sponsor, such Replacement Mortgage Loan or Replacement Mortgage Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and the Purchase Agreement, including all applicable representations and warranties thereof included in the Purchase Agreement as of the date of substitution.
(d) It is understood and agreed that the representations, warranties and indemnification (i) set forth in this Section 2.03 and (ii) of the Sponsor and the Depositor set forth in the Purchase Agreement and assigned to the Trustee by the Depositor hereunder shall each survive delivery of the Mortgage Files and the Assignment of Mortgage of each Mortgage Loan to the Trustee and shall continue throughout the term of this Agreement.
(e) The Depositor shall deliver a copy of the Mortgage Loan Schedule to the Servicer on the Closing Date.
(f) The Depositor shall notify the Servicer and the Trustee when any NIM Notes are issued and when such NIM Notes are no longer outstanding.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Trust, Series 2006-Ff1)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, represents and warrants and covenants to the Trustee, for its own benefit and the benefit of the Certificateholders, and to the Master Servicer and the Special ServicerTrustee as follows, as of the Closing Date, that:date hereof
(i) The Depositor is duly organized and is validly existing as a corporation duly organized, validly existing and in good standing under the laws of the State of DelawareDelaware and has full power and authority (corporate and other) 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 and the Sale Agreement.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full corporate power and authority to execute, deliver and perform, and to enter into and consummate all the transactions contemplated by by, this Agreement, Agreement and the Sale Agreement and has duly authorized authorized, by all necessary corporate action on its part, the execution, delivery and performance of this Agreement and the Sale Agreement, ; and has duly executed this Agreement and delivered this Agreement.
(iv) This the Sale Agreement, assuming the due authorization, execution and delivery hereof by each of the other parties hereto, constitutes a validlegal, legal valid and binding obligation of the Depositor, enforceable against the Depositor in accordance with the terms hereofits terms, subject subject, as to enforceability, to (Ai) applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally, generally and (Bii) general principles of equity, regardless of whether such enforcement is considered sought in a proceeding in equity or at law.
(viii) The Depositor is not in violation of, and its execution and delivery of this Agreement and its performance the Sale Agreement by the Depositor, the consummation of the transactions contemplated by this Agreement and the Sale Agreement, and the fulfillment of or compliance with the terms hereof are in the ordinary course of this Agreement business of the Depositor and will not (A) result in a material breach of any term or provision of the charter or by-laws of the Depositor or (B) materially conflict with, result in a violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Depositor is a party or by which it may be bound or (C) constitute a material violation ofof any statute, any law, any order or decree regulation applicable to the Depositor of any court court, regulatory body, administrative agency or arbitergovernmental body having jurisdiction over the Depositor; and the Depositor is not in breach or violation of any material indenture or other material agreement or instrument, or any order, regulation or demand in violation of any federalstatute, state order or local regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or regulatory authority, which violation, in violation may materially impair the Depositor's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Depositor to perform or meet any of its obligations under this Agreement or the financial condition of the DepositorAgreement.
(vi) The transfer of the Trust Mortgage Loans to the Trustee as contemplated herein requires no regulatory approval, other than any such approvals as have been obtained, and is not subject to any bulk transfer or similar law in effect in any applicable jurisdiction.
(vii) The Depositor is not transferring the Trust Mortgage Loans to the Trustee with any intent to hinder, delay or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left with unreasonably small assets or capital with which to engage in and conduct its business.
(x) The Depositor 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.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xiiiv) No litigation is pending or, to the best of the Depositor's knowledge, threatened threatened, against the Depositor that, if determined adversely to the Depositor, that would prohibit the Depositor from entering into this Agreement or that, in the Depositor's good faith and reasonable judgment, is likely to materially and adversely affect either the execution, delivery or enforceability of this Agreement and the Sale Agreement or the ability of the Depositor to perform its obligations under this Agreement or and the financial condition of Sale Agreement in accordance with the Depositorterms hereof.
(xiiiv) 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 Depositor of, or compliance by the Depositor with, this Agreement and the Sale Agreement or the consummation of the transactions contemplated hereby, or if any actions that are such consent, approval, authorization or order is required, the express responsibility of another party hereunder or under Depositor has obtained the same. The Depositor hereby represents and warrants to the Trustee with respect to each Mortgage Loan Purchase Agreements, and further except for actions that the Depositor is expressly permitted to complete subsequent to as of the Closing Date, the Depositor has taken all actions required under applicable law to effectuate and following the transfer of the Trust Mortgage Loans by the Depositor to the Trustee.
(xiv) Immediately prior to the transfer of the UBS Trust Mortgage Loans to it by the Trust pursuant to this Agreement (and assuming that the UBS Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Trust Mortgage LoanSeller, free and clear of all liens, claims, encumbrances and other interests), (A) the Depositor had good title to the Mortgage Loans and marketable title tothe Mortgage Notes were subject to no offsets, and was the sole owner and holder ofclaims, each UBS Trust liens, mortgage, pledge, charge, security interest, defenses or counterclaims.
(vi) Each Mortgage Loan; and (B) the Depositor Loan in Group One has full right and authority to sell, assign and transfer the UBS Trust Mortgage Loans, exclusive a Stated Principal Balance as of the servicing rights pertaining theretoCut-off Date that complies with the loan limitations of Fannie Mae and Freddie Mac as in effect on the Cut-off Date.
(b) The Depositor hereby makes To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of a representation or warranty of the TrusteeSeller under the Sale Agreement, for the only right or remedy of the Trustee or of any Certificateholder shall be the Trustee's own benefit and right to enforce the benefit obligations of the Certificateholders, Seller under any applicable representation or warranty made by it. The Trustee acknowledges that the Depositor shall have no obligation or liability with respect to each Xxxxxx Trust Mortgage Loan only, the representations and warranties shown on Schedule II hereto, as any breach of the Closing Date any representation or such other date specified in the particular representation and warranty, subject warranty with respect to the exceptions set forth on Schedule III hereto Mortgage Loans (the headings except as set forth in Schedule II hereto with respect to each representation and warranty being for convenience of reference only and in no way limiting, expanding or otherwise affecting the scope or subject matter thereofSection 2.03(a)(v). Except as expressly provided in Section 2.04(a), the Depositor does not make ) under any representations or warranties regarding the UBS Trust Mortgage Loanscircumstances.
(c) The representations, warranties and covenants of the Depositor set forth in or made pursuant to Section 2.04(a) and Section 2.04(b) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any the Depositor, the Servicer, or the Trustee of a breach of any of such representationsrepresentations and warranties set forth in the Sale Agreement that adversely and materially affects the value of the related Mortgage Loan, warranties and covenantsprepayment charges or the interests of the Certificateholders, the party discovering such breach shall give prompt written notice thereof to the other parties. Within 90 days of the discovery of a breach of any representation or warranty given to the Trustee by the Depositor, the Seller and assigned to the Trustee, the Depositor, or the Seller shall either (a) cure such breach in all material respects, (b) repurchase such Mortgage Loan or any property acquired in respect thereof from the Trustee at the Purchase Price or (c) within the two year period following the Closing Date, substitute a Replacement Mortgage Loan for the affected Mortgage Loan. In the event of discovery of a breach of any representation and warranty of the Seller or the Depositor, the Trustee shall enforce its rights under the Sale Agreement or thereunder for the benefit of Certificateholders. In the event of a breach of the representations and warranties with respect to the Mortgage Loans set forth in a Sale Agreement, the Trustee shall enforce the right of the Trust Fund to be indemnified for such breach of representation and warranty. In the event that such breach relates solely to the unenforceability of a prepayment charge, amounts received in respect of such indemnity up to the amount of such prepayment charge shall be distributed pursuant to Section 4.04(b)(i)(B). As provided in the Sale Agreement, if the Seller substitutes for a Mortgage Loan for which there is a breach of any representations and warranties which adversely and materially affects the value of such Mortgage Loan and such substitute mortgage loan is not a Replacement Mortgage Loan, under the terms of the Sale Agreement, the Seller will, in exchange for such substitute Mortgage Loan, (i) provide the applicable Purchase Price for the affected Mortgage Loan or (ii) within two years of the Closing Date, substitute such affected Mortgage Loan with a Replacement Mortgage Loan. Any such substitution shall not be effected prior to the additional delivery to the Trustee of a Request for Release substantially in the form of Exhibit I and shall not be effected unless it is within two years of the Startup Day. As provided in the Sale Agreement, the Seller indemnifies and holds the Trust Fund, the Trustee, the Depositor, the Servicer and each Certificateholder harmless against any and all taxes, claims, losses, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, fees and expenses that the Trust Fund, the Trustee, the Depositor, the Servicer and any Certificateholder may sustain in connection with any actions of the Seller relating to a repurchase of a Mortgage Loan other than in compliance with the terms of this Section 2.03 and the Sale Agreement, to the extent that any such action causes (i) any federal or state tax to be imposed on the Trust Fund or any REMIC provided for herein, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup day" under Section 860G(d)(1) of the Code, or (ii) any REMIC created hereunder to fail to qualify as a REMIC at any time that any Certificate is outstanding. With respect to any Mortgage Loan repurchased by the Depositor pursuant to this Agreement or by the Seller pursuant to the Sale Agreement, the principal portion of the funds received by the Servicer in respect of such repurchase of a Mortgage Loan will be considered a Principal Prepayment and shall be deposited by the Servicer in the Certificate Account pursuant to Section 3.05. The Trustee, upon receipt of the full amount of the Purchase Price for a Deleted Mortgage Loan, or upon receipt of the Mortgage File for a Replacement Mortgage Loan substituted for a Deleted Mortgage Loan, shall release or cause to be released and reassign to the Depositor or the Seller, as applicable, the related Mortgage File for the Deleted Mortgage Loan and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation or warranty, as shall be necessary to vest in such party or its designee or assignee title to any Deleted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Trustee, and the Trustee shall not have any further responsibility with respect to the Mortgage File relating to such Deleted Mortgage Loan. With respect to each Replacement Mortgage Loan to be delivered to the Trustee pursuant to the terms of this Article II in exchange for a Deleted Mortgage Loan: (i) the Depositor or the Seller, as applicable, must deliver to the Trustee the Mortgage File for the Replacement Mortgage Loan containing the documents set forth in Section 2.01 along with a written certification certifying as to the delivery of such Mortgage File and containing the granting language set forth in the first sentence of Section 2.01; and (ii) the Depositor will be deemed to have made, with respect to such Replacement Mortgage Loan, each of the representations and warranties made by it with respect to the related Deleted Mortgage Loan. The Trustee shall review the Mortgage File with respect to each Replacement Mortgage Loan and certify to the Depositor that all documents required by Section 2.01 have been executed and received. For any month in which the Seller substitutes one or more Replacement Mortgage Loans for one or more Deleted Mortgage Loans, the Seller will determine the amount (if any) by which the aggregate principal balance of all such Replacement Mortgage Loans as of the date of substitution and the aggregate prepayment charges with respect to such Replacement Mortgage Loans is less than the aggregate Stated Principal Balance (after application of the principal portion of the Scheduled Payment due in the month of substitution) and aggregate prepayment charges of all such Deleted Mortgage Loans. An amount equal to the aggregate of the deficiencies described in the preceding sentence (such amount, the "Substitution Adjustment Amount") shall be delivered by the Seller to the Servicer for deposit into the Collection Account on the Determination Date for the Distribution Date relating to the Prepayment Period during which the related Mortgage Loan became required to be purchased or replaced hereunder. The Seller shall give or cause to be given written notice to the Certificateholders that such substitution has taken place, shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Replacement Mortgage Loan or Replacement Mortgage Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the Trustee. Upon such substitution by the Seller, such Replacement Mortgage Loan or Replacement Mortgage Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and the Sale Agreement, including all applicable representations and warranties thereof included in the Sale Agreement as of the date of substitution. In addition, the Seller shall obtain at its own expense and deliver to the Trustee an Opinion of Counsel addressed to the Trustee to the effect that such substitution will not (a) cause any federal tax to be imposed on the Trust Fund or any REMIC provided for herein, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup day" under Section 860G(d)(1) of the Code or (b) adversely affect the status of any REMIC provided for herein as a REMIC. If any such Opinion of Counsel can not be delivered, then such substitution may only be effected at such time as the required Opinion of Counsel can be given.
(d) It is understood and agreed that the representations, warranties and indemnification (i) set forth in this Section 2.03 and (ii) of the Seller and the Depositor set forth in the Sale Agreement and assigned to the Trustee by the Depositor hereunder shall each survive delivery of the Mortgage Files and the Assignment of Mortgage of each Mortgage Loan to the Trustee and shall continue throughout the term of this Agreement.
Appears in 1 contract
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, represents and warrants and covenants to the TrusteeNIMs Insurer, for its own benefit and the benefit of the Certificateholders, and to the Master Servicer and the Special ServicerTrustee as follows, as of the Closing Date, thatdate hereof:
(i) The Depositor is duly organized and is validly existing as a corporation duly organized, validly existing and in good standing under the laws of the State of DelawareDelaware and has full power and authority (corporate and other) 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 and the Sale Agreement.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full corporate power and authority to execute, deliver and perform, and to enter into and consummate all the transactions contemplated by by, this Agreement, Agreement and the Sale Agreement and has duly authorized authorized, by all necessary corporate action on its part, the execution, delivery and performance of this Agreement and the Sale Agreement, ; and has duly executed this Agreement and delivered this Agreement.
(iv) This the Sale Agreement, assuming the due authorization, execution and delivery hereof by each of the other parties hereto, constitutes a validlegal, legal valid and binding obligation of the Depositor, enforceable against the Depositor in accordance with the terms hereofits terms, subject subject, as to enforceability, to (Ai) applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally, generally and (Bii) general principles of equity, regardless of whether such enforcement is considered sought in a proceeding in equity or at law.
(viii) The Depositor is not in violation of, and its execution and delivery of this Agreement and its performance the Sale Agreement by the Depositor, the consummation of the transactions contemplated by this Agreement and the Sale Agreement, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Depositor and will not (A) result in a material breach of any term or provision of the charter or by-laws of the Depositor or (B) materially conflict with, result in a violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Depositor is a party or by which it may be bound or (C) constitute a material violation of any statute, order or regulation applicable to the Depositor of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Depositor; and the Depositor is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Depositor's ability to perform or meet any of its obligations under this Agreement.
(iv) No litigation is pending, or, to the best of the Depositor's knowledge, threatened, against the Depositor that would materially and adversely affect the execution, delivery or enforceability of this Agreement will not constitute a violation of, any law, any order and the Sale Agreement or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Depositor's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Depositor to perform its obligations under this Agreement or and the financial condition of Sale Agreement in accordance with the Depositorterms hereof.
(viv) The transfer No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Depositor of, or compliance by the Depositor with, this Agreement and the Sale Agreement or the consummation of the Trust Mortgage Loans to the Trustee as transactions contemplated herein requires no regulatory hereby, or if any such consent, approval, other than any such approvals as have been obtainedauthorization or order is required, and is not subject to any bulk transfer or similar law in effect in any applicable jurisdiction.
(vii) the Depositor has obtained the same. The Depositor is not transferring the Trust Mortgage Loans hereby represents and warrants to the Trustee with any intent respect to hinder, delay or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left with unreasonably small assets or capital with which to engage in and conduct its business.
(x) The Depositor 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.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xii) No litigation is pending or, to the best of the Depositor's knowledge, threatened against the Depositor that, if determined adversely to the Depositor, would prohibit the Depositor from entering into this Agreement or that, in the Depositor's good faith and reasonable judgment, is likely to materially and adversely affect either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(xiii) Except for any actions that are the express responsibility of another party hereunder or under the each Mortgage Loan Purchase Agreements, and further except for actions that the Depositor is expressly permitted to complete subsequent to as of the Closing Date, the Depositor has taken all actions required under applicable law to effectuate and following the transfer of the Trust Mortgage Loans by the Depositor to the Trustee.
(xiv) Immediately prior to the transfer of the UBS Trust Mortgage Loans to it by the Trust pursuant to this Agreement (and assuming that the UBS Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Trust Mortgage LoanSponsor, free and clear of all liens, claims, encumbrances and other interests), (A) the Depositor had good title to the Mortgage Loans and marketable title tothe Mortgage Notes were subject to no offsets, and was the sole owner and holder ofclaims, each UBS Trust Mortgage Loan; and (B) the Depositor has full right and authority to sellliens, assign and transfer the UBS Trust Mortgage Loansmortgage, exclusive of the servicing rights pertaining theretopledge, charge, security interest, defenses or counterclaims.
(b) The Depositor hereby makes to the Trustee, for the Trustee's own benefit representations and the benefit warranties of the Certificateholders, each Transferor with respect to each Xxxxxx Trust the related Mortgage Loan onlyLoans in the applicable Transfer Agreement, which have been assigned to the Trustee hereunder, were made as of the date specified in the applicable Transfer Agreement and brought forward to the Closing Date pursuant to the related Bring Down Letter. The representations and warranties shown on Schedule II hereto, of each Transferor with respect to the Mortgage Loans contained in the Bring Down Letter were made as of the Closing Date or such other date specified Date. The representations and warranties of the Sponsor with respect to the Mortgage Loans contained in the particular Sale Agreement were made as of the Closing Date. To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of (i) both representation or warranty of the applicable Transferor under the applicable Transfer Agreements or Bring Down Letters and warranty(ii) a representation or warranty of the Sponsor under the Sale Agreement, subject to the exceptions set forth on Schedule III hereto (obligations of the headings Sponsor under the Sale Agreement shall be enforced against the Transferor or the Sponsor, as applicable, as set forth in Schedule II hereto the Sale Agreement. The Trustee is hereby directed to and does acknowledge that the Sponsor shall have no obligation or liability with respect to each any breach of a representation and or warranty being for convenience of reference only and in no way limiting, expanding or otherwise affecting the scope or subject matter thereof). Except as expressly provided in Section 2.04(a), the Depositor does not make made by it with respect to any representations or warranties regarding the UBS Trust related Mortgage Loans.
(c) The representations, warranties and covenants of the Depositor except as otherwise set forth in or made pursuant to Section 2.04(a) and Section 2.04(b) shall survive the execution and delivery of this Agreement and shall inure Sale Agreement, if (as certified to the benefit Trustee by the Sponsor) the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the Persons for whose benefit they were related Transferor in the related Transfer Agreement or Bring Down Letter, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty. The Trustee also is hereby directed to and does acknowledge that the Sponsor shall have no obligation or liability with respect to any breach of a representation or warranty made for so long as solely by the Trust Fund remains Transferors with respect to the Mortgage Loans, without regard to whether the related Transferor fulfills its contractual obligations in existencerespect of such representation or warranty. Upon discovery by any party hereto of The Trustee further acknowledges that the Depositor shall have no obligation or liability with respect to any breach of any of such representations, warranties and covenants, the party discovering such breach shall give prompt written notice thereof representation or warranty with respect to the other partiesMortgage Loans (except as set forth in Section 2.03(a)(iv)) under any circumstances.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Trust, Series 2006-He6)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, represents and warrants and covenants to the Trustee, for its own benefit and the benefit of the Certificateholders, and to the Master Servicer and the Special ServicerTrustee as follows, as of the Closing Date, that:date hereof
(i) The Depositor is duly organized and is validly existing as a corporation duly organized, validly existing and in good standing under the laws of the State of DelawareDelaware and has full power and authority (corporate and other) 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 and the Sale Agreement.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full corporate power and authority to execute, deliver and perform, and to enter into and consummate all the transactions contemplated by by, this Agreement, Agreement and the Sale Agreement and has duly authorized authorized, by all necessary corporate action on its part, the execution, delivery and performance of this Agreement and the Sale Agreement, ; and has duly executed this Agreement and delivered this Agreement.
(iv) This the Sale Agreement, assuming the due authorization, execution and delivery hereof by each of the other parties hereto, constitutes a validlegal, legal valid and binding obligation of the Depositor, enforceable against the Depositor in accordance with the terms hereofits terms, subject subject, as to enforceability, to (Ai) applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally, generally and (Bii) general principles of equity, regardless of whether such enforcement is considered sought in a proceeding in equity or at law.
(viii) The Depositor is not in violation of, and its execution and delivery of this Agreement and its performance the Sale Agreement by the Depositor, the consummation of the transactions contemplated by this Agreement and the Sale Agreement, and the fulfillment of or compliance with the terms hereof are in the ordinary course of this Agreement business of the Depositor and will not (A) result in a material breach of any term or provision of the charter or by-laws of the Depositor or (B) materially conflict with, result in a violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Depositor is a party or by which it may be bound or (C) constitute a material violation ofof any statute, any law, any order or decree regulation applicable to the Depositor of any court court, regulatory body, administrative agency or arbitergovernmental body having jurisdiction over the Depositor; and the Depositor is not in breach or violation of any material indenture or other material agreement or instrument, or any order, regulation or demand in violation of any federalstatute, state order or local regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or regulatory authority, which violation, in violation may materially impair the Depositor's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Depositor to perform or meet any of its obligations under this Agreement or the financial condition of the DepositorAgreement.
(vi) The transfer of the Trust Mortgage Loans to the Trustee as contemplated herein requires no regulatory approval, other than any such approvals as have been obtained, and is not subject to any bulk transfer or similar law in effect in any applicable jurisdiction.
(vii) The Depositor is not transferring the Trust Mortgage Loans to the Trustee with any intent to hinder, delay or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left with unreasonably small assets or capital with which to engage in and conduct its business.
(x) The Depositor 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.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xiiiv) No litigation is pending or, to the best of the Depositor's knowledge, threatened threatened, against the Depositor that, if determined adversely to the Depositor, that would prohibit the Depositor from entering into this Agreement or that, in the Depositor's good faith and reasonable judgment, is likely to materially and adversely affect either the execution, delivery or enforceability of this Agreement and the Sale Agreement or the ability of the Depositor to perform its obligations under this Agreement or and the financial condition of Sale Agreement in accordance with the Depositorterms hereof.
(xiiiv) Except No consent, approval, authorization or order of any court or governmental agency or body is required for any actions that are the express responsibility of another party hereunder or under the Mortgage Loan Purchase Agreementsexecution, delivery and further except for actions that performance by the Depositor of, or compliance by the Depositor with, this Agreement and the Sale Agreement or the consummation of the transactions contemplated hereby, or if any such consent, approval, authorization or order is expressly permitted to complete subsequent to the Closing Daterequired, the Depositor has taken all actions required under applicable law obtained the same. The Depositor hereby represents and warrants to effectuate the Trustee with respect to each Mortgage Loan as of the Closing Date (or the Subsequent Transfer Date with respect to Subsequent Mortgage Loans), and following the transfer of the Trust Mortgage Loans by the Depositor to the Trustee.
(xiv) Immediately prior to the transfer of the UBS Trust Mortgage Loans to it by the Trust pursuant to this Agreement (and assuming that the UBS Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Trust Mortgage LoanSponsor, free and clear of all liens, claims, encumbrances and other interests), (A) the Depositor had good title to the Mortgage Loans and marketable title tothe Mortgage Notes were subject to no offsets, and was the sole owner and holder ofclaims, each UBS Trust liens, mortgage, pledge, charge, security interest, defenses or counterclaims.
(vi) Each Mortgage Loan; and (B) the Depositor Loan in Group One has full right and authority to sell, assign and transfer the UBS Trust Mortgage Loans, exclusive a Stated Principal Balance as of the servicing rights pertaining theretoInitial Cut-off Date that complies with the loan limitations of Xxxxxx Xxx and Xxxxxxx Mac as in effect on the Initial Cut-off Date.
(b) The Depositor hereby makes To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of a representation or warranty of the TrusteeSponsor under the Sale Agreement, for the only right or remedy of the Trustee or of any Certificateholder shall be the Trustee's own benefit and right to enforce the benefit obligations of the Certificateholders, Sponsor under any applicable representation or warranty made by it. The Trustee acknowledges that the Depositor shall have no obligation or liability with respect to each Xxxxxx Trust Mortgage Loan only, the representations and warranties shown on Schedule II hereto, as any breach of the Closing Date any representation or such other date specified in the particular representation and warranty, subject warranty with respect to the exceptions set forth on Schedule III hereto Mortgage Loans (the headings except as set forth in Schedule II hereto with respect to each representation and warranty being for convenience of reference only and in no way limiting, expanding or otherwise affecting the scope or subject matter thereofSection 2.03(a)(v). Except as expressly provided in Section 2.04(a), the Depositor does not make ) under any representations or warranties regarding the UBS Trust Mortgage Loanscircumstances.
(c) The representations, warranties and covenants of the Depositor set forth in or made pursuant to Section 2.04(a) and Section 2.04(b) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any the Depositor, the Servicer, or the Trustee of a breach of any of such representationsrepresentations and warranties set forth in the Sale Agreement that adversely and materially affects the value of the related Mortgage Loan, warranties and covenantsprepayment charges or the interests of the Certificateholders, the party discovering such breach shall give prompt written notice thereof to the other parties. Within ninety (90) days of the discovery of a breach of any representation or warranty given to the Trustee by the Depositor, the Sponsor and assigned by the Depositor to the Trustee, the Depositor, or the Sponsor shall either (a) cure such breach in all material respects, (b) repurchase such Mortgage Loan or any property acquired in respect thereof from the Trustee at the Purchase Price or (c) within the two year period following the Closing Date, substitute a Replacement Mortgage Loan for the affected Mortgage Loan. In the event of discovery of a breach of any representation and warranty of the Sponsor or the Depositor, the Trustee shall enforce its rights under the Sale Agreement or thereunder for the benefit of Certificateholders. In the event of a breach of the representations and warranties with respect to the Mortgage Loans set forth in a Sale Agreement, the Trustee shall enforce the right of the Issuing Entity to be indemnified for such breach of representation and warranty. In the event that such breach relates solely to the unenforceability of a prepayment charge, amounts received in respect of such indemnity up to the amount of such prepayment charge shall be distributed pursuant to Section 4.04(b)(i)(B). As provided in the Sale Agreement, if the Sponsor substitutes for a Mortgage Loan for which there is a breach of any representations and warranties which adversely and materially affects the value of such Mortgage Loan and such substitute mortgage loan is not a Replacement Mortgage Loan, under the terms of the Sale Agreement, the Sponsor will, in exchange for such substitute Mortgage Loan, (i) provide the applicable Purchase Price for the affected Mortgage Loan or (ii) within two years of the Closing Date, substitute such affected Mortgage Loan with a Replacement Mortgage Loan. Any such substitution shall not be effected prior to the additional delivery to the Trustee of a Request for Release substantially in the form of Exhibit I and shall not be effected unless it is within two years of the Startup Day. As provided in the Sale Agreement, the Sponsor indemnifies and holds the Issuing Entity, the Trustee, the Depositor, the Servicer and each Certificateholder harmless against any and all taxes, claims, losses, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, fees and expenses that the Issuing Entity, the Trustee, the Depositor, the Servicer and any Certificateholder may sustain in connection with any actions of the Sponsor relating to a repurchase of a Mortgage Loan other than in compliance with the terms of this Section 2.03 and the Sale Agreement, to the extent that any such action causes (i) any federal or state tax to be imposed on the Issuing Entity or any REMIC provided for herein, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup day" under Section 860G(d)(1) of the Code, or (ii) any REMIC created hereunder to fail to qualify as a REMIC at any time that any Certificate is outstanding. With respect to any Mortgage Loan repurchased by the Depositor pursuant to this Agreement or by the Sponsor pursuant to the Sale Agreement, the principal portion of the funds received by the Servicer in respect of such repurchase of a Mortgage Loan will be considered a Principal Prepayment and shall be deposited by the Servicer in the Certificate Account pursuant to Section 3.05. The Trustee, upon receipt of the full amount of the Purchase Price for a Deleted Mortgage Loan, or upon receipt of the Mortgage File for a Replacement Mortgage Loan substituted for a Deleted Mortgage Loan, shall release or cause to be released and reassign to the Depositor or the Sponsor, as applicable, the related Mortgage File for the Deleted Mortgage Loan and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation or warranty, as shall be necessary to vest in such party or its designee or assignee title to any Deleted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Trustee, and the Trustee shall not have any further responsibility with respect to the Mortgage File relating to such Deleted Mortgage Loan. With respect to each Replacement Mortgage Loan to be delivered to the Trustee pursuant to the terms of this Article II in exchange for a Deleted Mortgage Loan: (i) the Depositor or the Sponsor, as applicable, must deliver to the Trustee the Mortgage File for the Replacement Mortgage Loan containing the documents set forth in Section 2.01 along with a written certification certifying as to the delivery of such Mortgage File and containing the granting language set forth in the first sentence of Section 2.01; and (ii) the Depositor will be deemed to have made, with respect to such Replacement Mortgage Loan, each of the representations and warranties made by it with respect to the related Deleted Mortgage Loan. The Trustee shall review the Mortgage File with respect to each Replacement Mortgage Loan and certify to the Depositor that all documents required by Section 2.01 have been executed and received. For any month in which the Sponsor substitutes one or more Replacement Mortgage Loans for one or more Deleted Mortgage Loans, the Sponsor will determine the amount (if any) by which the aggregate principal balance of all such Replacement Mortgage Loans as of the date of substitution and the aggregate prepayment charges with respect to such Replacement Mortgage Loans is less than the aggregate Stated Principal Balance (after application of the principal portion of the Scheduled Payment due in the month of substitution) and aggregate prepayment charges of all such Deleted Mortgage Loans. An amount equal to the aggregate of the deficiencies described in the preceding sentence (such amount, the "Substitution Adjustment Amount") shall be delivered by the Sponsor to the Servicer for deposit into the Collection Account on the Determination Date for the Distribution Date relating to the Prepayment Period during which the related Mortgage Loan became required to be purchased or replaced hereunder. The Sponsor shall give or cause to be given written notice to the Certificateholders that such substitution has taken place, shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Replacement Mortgage Loan or Replacement Mortgage Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the Trustee. Upon such substitution by the Sponsor, such Replacement Mortgage Loan or Replacement Mortgage Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and the Sale Agreement, including all applicable representations and warranties thereof included in the Sale Agreement as of the date of substitution. In addition, the Sponsor shall obtain at its own expense and deliver to the Trustee an Opinion of Counsel addressed to the Trustee to the effect that such substitution will not (a) cause any federal tax to be imposed on the Issuing Entity or any REMIC provided for herein, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup day" under Section 860G(d)(1) of the Code or (b) adversely affect the status of any REMIC provided for herein as a REMIC. If any such Opinion of Counsel can not be delivered, then such substitution may only be effected at such time as the required Opinion of Counsel can be given.
(d) It is understood and agreed that the representations, warranties and indemnification (i) set forth in this Section 2.03 and (ii) of the Sponsor and the Depositor set forth in the Sale Agreement and assigned to the Trustee by the Depositor hereunder shall each survive delivery of the Mortgage Files and the Assignment of Mortgage of each Mortgage Loan to the Trustee and shall continue throughout the term of this Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Mortgage Loan Asset-Backed Certificates, Series 2006-Ab2)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, represents and warrants and covenants to the TrusteeServicer, for its own benefit the Trustee and the benefit of the Certificateholders, and to the Master Servicer and the Special ServicerNIMs Insurer as follows, as of the Closing Date, thatdate hereof:
(i) The Depositor is duly organized and is validly existing as a corporation duly organized, validly existing and in good standing under the laws of the State of DelawareDelaware and has full power and authority (corporate and other) 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 and the Sale Agreement.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full corporate power and authority to execute, deliver and perform, and to enter into and consummate all the transactions contemplated by by, this Agreement, Agreement and the Sale Agreement and has duly authorized authorized, by all necessary corporate action on its part, the execution, delivery and performance of this Agreement and the Sale Agreement, ; and has duly executed this Agreement and delivered this Agreement.
(iv) This the Sale Agreement, assuming the due authorization, execution and delivery hereof by each of the other parties hereto, constitutes a validlegal, legal valid and binding obligation of the Depositor, enforceable against the Depositor in accordance with the terms hereofits terms, subject subject, as to enforceability, to (Ai) applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally, generally and (Bii) general principles of equity, regardless of whether such enforcement is considered sought in a proceeding in equity or at law.
(viii) The Depositor is not in violation of, and its execution and delivery of this Agreement and its performance the Sale Agreement by the Depositor, the consummation of the transactions contemplated by this Agreement and the Sale Agreement, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Depositor and will not (A) result in a material breach of any term or provision of the charter or by-laws of the Depositor or (B) materially conflict with, result in a violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Depositor is a party or by which it may be bound or (C) constitute a material violation of any statute, order or regulation applicable to the Depositor of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Depositor; and the Depositor is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Depositor's ability to perform or meet any of its obligations under this Agreement.
(iv) No litigation is pending, or, to the best of the Depositor's knowledge, threatened, against the Depositor that would materially and adversely affect the execution, delivery or enforceability of this Agreement will not constitute a violation of, any law, any order and the Sale Agreement or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Depositor's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Depositor to perform its obligations under this Agreement or and the financial condition of Sale Agreement in accordance with the Depositorterms hereof.
(viv) The transfer No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Depositor of, or compliance by the Depositor with, this Agreement and the Sale Agreement or the consummation of the Trust Mortgage Loans to the Trustee as transactions contemplated herein requires no regulatory hereby, or if any such consent, approval, other than any such approvals as have been obtainedauthorization or order is required, and is not subject to any bulk transfer or similar law in effect in any applicable jurisdiction.
(vii) the Depositor has obtained the same. The Depositor is not transferring the Trust Mortgage Loans hereby represents and warrants to the Trustee with any intent respect to hinder, delay or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left with unreasonably small assets or capital with which to engage in and conduct its business.
(x) The Depositor 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.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xii) No litigation is pending or, to the best of the Depositor's knowledge, threatened against the Depositor that, if determined adversely to the Depositor, would prohibit the Depositor from entering into this Agreement or that, in the Depositor's good faith and reasonable judgment, is likely to materially and adversely affect either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(xiii) Except for any actions that are the express responsibility of another party hereunder or under the each Mortgage Loan Purchase Agreements, and further except for actions that the Depositor is expressly permitted to complete subsequent to as of the Closing Date, the Depositor has taken all actions required under applicable law to effectuate and following the transfer of the Trust Mortgage Loans by the Depositor to the Trustee.
(xiv) Immediately prior to the transfer of the UBS Trust Mortgage Loans to it by the Trust pursuant to this Agreement (and assuming that the UBS Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Trust Mortgage LoanSeller, free and clear of all liens, claims, encumbrances and other interests), (A) the Depositor had good title to the Mortgage Loans and marketable title tothe Mortgage Notes were subject to no offsets, and was the sole owner and holder ofclaims, each UBS Trust Mortgage Loan; and (B) the Depositor has full right and authority to sellliens, assign and transfer the UBS Trust Mortgage Loansmortgage, exclusive of the servicing rights pertaining theretopledge, charge, security interest, defenses or counterclaims.
(b) The Depositor hereby makes to the Trustee, for the Trustee's own benefit representations and the benefit warranties of the Certificateholders, Transferor with respect to each Xxxxxx Trust the related Mortgage Loan onlyLoans in the Transfer Agreement, which have been assigned to the representations and warranties shown on Schedule II heretoTrustee hereunder, were made as of the Closing Date or such other date specified in the particular representation and warrantyTransfer Agreement (or underlying agreement, subject if the Transfer Agreement is in the form of an assignment of a prior agreement), except to the exceptions set forth on Schedule III hereto extent such representations and warranties were brought forward in the letter agreement dated as of the date hereof from the Transferor to the Seller. To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of both (i) a representation or warranty of the headings Transferor under the Transfer Agreement and (ii) a representation or warranty of the Seller under the Sale Agreement, the only right or remedy of the Trustee, the NIMs Insurer or of any Certificateholder shall be the Trustee's right to enforce the obligations of the Transferor under any applicable representation or warranty made by it. The Trustee acknowledges that the Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Mortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the Transferor in the Transfer Agreement, without regard to whether the Transferor fulfills its contractual obligations in respect of such representation or warranty. The Trustee further acknowledges that the Depositor shall have no obligation or liability with respect to any breach of any representation or warranty with respect to the Mortgage Loans (except as set forth in Schedule II hereto with respect to each representation and warranty being for convenience of reference only and in no way limiting, expanding or otherwise affecting the scope or subject matter thereofSection 2.03(a)(v). Except as expressly provided in Section 2.04(a), the Depositor does not make ) under any representations or warranties regarding the UBS Trust Mortgage Loanscircumstances.
(c) The representations, warranties and covenants of the Depositor set forth in or made pursuant to Section 2.04(a) and Section 2.04(b) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any the Depositor, the NIMs Insurer, or the Trustee of a breach of any of such representationsrepresentations and warranties that adversely and materially affects the value of the related Mortgage Loan, warranties and covenantsprepayment charges or the interests of the Certificateholders, the party discovering such breach shall give prompt written notice thereof to the other parties. Within 90 days of the discovery of such breach of any representation or warranty the Transferor or the Seller, as applicable, shall either (a) cure such breach in all material respects, (b) repurchase such Mortgage Loan or any property acquired in respect thereof from the Trustee at the Purchase Price or (c) within the two year period following the Closing Date, substitute a Replacement Mortgage Loan for the affected Mortgage Loan. In the event of discovery of a breach of any representation and warranty of the Transferor, the Depositor or the Seller, the Trustee shall enforce its rights under the Transfer Agreement or the Sale Agreement for the benefit of Certificateholders and the NIMs Insurer. If a breach of the representations and warranties set forth in the Transfer Agreement exists solely due to the unenforceability of a prepayment charge, the Trustee shall notify the NIMs Insurer thereof and not seek to enforce the repurchase remedy provided for herein unless directed in writing to do so by the NIMs Insurer. In the event of a breach of the representations and warranties with respect to the Mortgage Loans set forth in the Transfer Agreement, the Trustee shall at the request of the NIMs Insurer enforce the right of the Trust Fund and the NIMs Insurer to be indemnified for such breach of representation and warranty. In the event that such breach relates solely to the unenforceability of a prepayment charge, amounts received in respect of such indemnity up to the amount of such prepayment charge shall be distributed pursuant to Section 4.04(b)(i)(B). As provided in the Sale Agreement, if the Transferor substitutes for a Mortgage Loan for which there is a breach of any representations and warranties in the Transfer Agreement which adversely and materially affects the value of such Mortgage Loan and such substitute mortgage loan is not a Replacement Mortgage Loan, under the terms of the Sale Agreement, the Seller will, in exchange for such substitute Mortgage Loan, (i) provide the applicable Purchase Price for the affected Mortgage Loan or (ii) within two years of the Closing Date, substitute such affected Mortgage Loan with a Replacement Mortgage Loan. Any such substitution shall not be effected prior to the additional delivery to the Trustee of a Request for Release substantially in the form of Exhibit I and shall not be effected unless it is within two years of the Startup Date. As provided in the Sale Agreement, the Seller indemnifies and holds the Trust Fund, the Trustee, the Depositor, the NIMs Insurer, the Servicer and each Certificateholder harmless against any and all taxes, claims, losses, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, fees and expenses that the Trust Fund, the Trustee, the Depositor, the NIMs Insurer, the Servicer and any Certificateholder may sustain in connection with any actions of the Seller relating to a repurchase of a Mortgage Loan other than in compliance with the terms of this Section 2.03 and the Sale Agreement, to the extent that any such action causes (i) any federal or state tax to be imposed on the Trust Fund or any REMIC provided for herein, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup date" under Section 860(d)(1) of the Code, or (ii) any REMIC created hereunder to fail to qualify as a REMIC at any time that any Certificate is outstanding. With respect to any Mortgage Loan repurchased by the Depositor pursuant to this Agreement, by the Seller pursuant to the Sale Agreement or by the Transferor pursuant to the Transfer Agreement, the principal portion of the funds received by the Trustee in respect of such repurchase of a Mortgage Loan will be considered a Principal Prepayment and shall be deposited in the Collection Account pursuant to Section 3.05(d) and the Servicer shall notify the Trustee of its receipt of the same. The Trustee, upon receipt of the full amount of the Purchase Price for a Deleted Mortgage Loan, or upon receipt of the Mortgage File for a Replacement Mortgage Loan substituted for a Deleted Mortgage Loan, shall release or cause to be released and reassign to the Depositor, the Seller or the Transferor, as applicable, the related Mortgage File for the Deleted Mortgage Loan and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation or warranty as shall be necessary to vest in such party or its designee or assignee title to any Deleted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Trustee, and the Trustee shall not have any further responsibility with respect to the Mortgage File relating to such Deleted Mortgage Loan. With respect to each Replacement Mortgage Loan to be delivered to the Trustee pursuant to the terms of this Article II in exchange for a Deleted Mortgage Loan: (i) the Depositor, the Transferor or the Seller, as applicable, must deliver to the Trustee the Mortgage File for the Replacement Mortgage Loan containing the documents set forth in Section 2.01 along with a written certification certifying as to the delivery of such Mortgage File and containing the granting language set forth in Section 2.01; and (ii) the Depositor will be deemed to have made, with respect to such Replacement Mortgage Loan, each of the representations and warranties made by it with respect to the related Deleted Mortgage Loan. The Trustee shall review the Mortgage File with respect to each Replacement Mortgage Loan and certify to the NIMs Insurer and the Depositor that all documents required by Section 2.01 have been executed and received. For any month in which the Seller substitutes one or more Replacement Mortgage Loans for one or more Deleted Mortgage Loans, the Seller will determine the amount (if any) by which the aggregate principal balance of all such Replacement Mortgage Loans as of the date of substitution and the aggregate prepayment penalties with respect to such Replacement Mortgage Loans is less than the aggregate Stated Principal Balance (after application of the principal portion of the Scheduled Payment due in the month of substitution) and aggregate prepayment penalties of all such Deleted Mortgage Loans. An amount equal to the aggregate of the deficiencies described in the preceding sentence (such amount, the "Substitution Adjustment Amount") plus an amount equal to any unreimbursed costs, penalties and/or damages incurred by the Trust Fund in connection with any violation relating to such Deleted Mortgage Loan of any predatory or abusive lending law shall be deposited into the Collection Account by the Seller on the Determination Date for the Distribution Date relating to the Prepayment Period during which the related Mortgage Loan became required to be purchased or replaced hereunder. The Trustee shall cause the relevant Mortgage Loan Schedules to be amended in accordance with the terms of this Agreement. The Seller shall give or cause to be given written notice to the Certificateholders and the NIMs Insurer that such substitution has taken place, shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Replacement Mortgage Loan or Replacement Mortgage Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the NIMs Insurer and the Trustee. Upon such substitution by the Seller, such Replacement Mortgage Loan or Replacement Mortgage Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and the Sale Agreement, including all applicable representations and warranties thereof included in the Sale Agreement as of the date of substitution. In addition, the Seller shall obtain at its own expense and deliver to the Trustee and the NIMs Insurer an Opinion of Counsel to the effect that such substitution will not (a) cause any federal tax to be imposed on the Trust Fund or any REMIC provided for herein, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup date" under Section 860G(d)(1) of the Code or (b) adversely affect the status of any REMIC provided for herein as a REMIC. If any such Opinion of Counsel can not be delivered, then such substitution may only be effected at such time as the required Opinion of Counsel can be given.
(d) It is understood and agreed that the representations, warranties and indemnification (i) set forth in this Section 2.03, (ii) of the Seller and the Depositor set forth in the Sale Agreement and assigned to the Trustee by the Depositor hereunder and (iii) of the Transferor, assigned by the Seller to the Depositor pursuant to the Sale Agreement and assigned to the Trustee by the Depositor hereunder shall each survive delivery of the Mortgage Files and the Assignment of Mortgage of each Mortgage Loan to the Trustee and shall continue throughout the term of this Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Inc)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, represents and warrants and covenants to the TrusteeServicer, for its own benefit the Trustee and the benefit of the Certificateholders, and to the Master Servicer and the Special ServicerClass A-1B Certificate Insurer as follows, as of the Closing Date, thatdate hereof:
(i) The Depositor is duly organized and is validly existing as a corporation duly organized, validly existing and in good standing under the laws of the State of DelawareDelaware and has full power and authority (corporate and other) 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 and the Sale Agreement.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full corporate power and authority to execute, deliver and perform, and to enter into and consummate all the transactions contemplated by by, this Agreement, Agreement and the Sale Agreement and has duly authorized authorized, by all necessary corporate action on its part, the execution, delivery and performance of this Agreement and the Sale Agreement, ; and has duly executed this Agreement and delivered this Agreement.
(iv) This the Sale Agreement, assuming the due authorization, execution and delivery hereof by each of the other parties hereto, constitutes a validlegal, legal valid and binding obligation of the Depositor, enforceable against the Depositor in accordance with the terms hereofits terms, subject subject, as to enforceability, to (Ai) applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally, generally and (Bii) general principles of equity, regardless of whether such enforcement is considered sought in a proceeding in equity or at law.
(viii) The Depositor is not in violation of, and its execution and delivery of this Agreement and its performance the Sale Agreement by the Depositor, the consummation of the transactions contemplated by this Agreement and the Sale Agreement, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Depositor and will not (A) result in a material breach of any term or provision of the charter or by-laws of the Depositor or (B) materially conflict with, result in a violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Depositor is a party or by which it may be bound or (C) constitute a material violation of any statute, order or regulation applicable to the Depositor of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Depositor; and the Depositor is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Depositor's ability to perform or meet any of its obligations under this Agreement.
(iv) No litigation is pending, or, to the best of the Depositor's knowledge, threatened, against the Depositor that would materially and adversely affect the execution, delivery or enforceability of this Agreement will not constitute a violation of, any law, any order and the Sale Agreement or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Depositor's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Depositor to perform its obligations under this Agreement or and the financial condition of Sale Agreement in accordance with the Depositorterms hereof.
(viv) The transfer No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Depositor of, or compliance by the Depositor with, this Agreement and the Sale Agreement or the consummation of the Trust Mortgage Loans transactions contemplated hereby, or if any such consent, approval, authorization or order is required, the Depositor has obtained the same. The Depositor hereby represents and warrants to the Trustee as contemplated herein requires no regulatory approval, other than any such approvals as have been obtained, and is not subject to any bulk transfer or similar law in effect in any applicable jurisdiction.
(vii) The Depositor is not transferring the Trust Mortgage Loans to the Trustee with any intent to hinder, delay or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left Class A-1B Certificate Insurer with unreasonably small assets or capital with which respect to engage in and conduct its business.
(x) The Depositor 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.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xii) No litigation is pending or, to the best of the Depositor's knowledge, threatened against the Depositor that, if determined adversely to the Depositor, would prohibit the Depositor from entering into this Agreement or that, in the Depositor's good faith and reasonable judgment, is likely to materially and adversely affect either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(xiii) Except for any actions that are the express responsibility of another party hereunder or under the each Mortgage Loan Purchase Agreements, and further except for actions that the Depositor is expressly permitted to complete subsequent to as of the Closing Date, the Depositor has taken all actions required under applicable law to effectuate and following the transfer of the Trust Mortgage Loans by the Depositor to the Trustee.
(xiv) Immediately prior to the transfer of the UBS Trust Mortgage Loans to it by the Trust pursuant to this Agreement (and assuming that the UBS Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Trust Mortgage LoanSponsor, free and clear of all liens, claims, encumbrances and other interests), (A) the Depositor had good title to the Mortgage Loans and marketable title tothe Mortgage Notes were subject to no offsets, and was the sole owner and holder ofclaims, each UBS Trust Mortgage Loan; and (B) the Depositor has full right and authority to sellliens, assign and transfer the UBS Trust Mortgage Loansmortgage, exclusive of the servicing rights pertaining theretopledge, charge, security interest, defenses or counterclaims.
(b) The Depositor hereby makes to the Trustee, for the Trustee's own benefit representations and the benefit warranties of the Certificateholders, Transferor with respect to each Xxxxxx Trust the related Mortgage Loan onlyLoans in the Transfer Agreement, which have been assigned to the Trustee hereunder, were made as of the date specified in the Transfer Agreement and certain of those representations and warranties shown on Schedule II hereto, have been brought forward to the Closing Date pursuant to the Bring Down Letter. The representations and warranties of the Transferor with respect to the Mortgage Loans contained in the Bring Down Letter were made as of the Closing Date or such other date specified Date. The representations and warranties of the Sponsor with respect to the Mortgage Loans contained in the particular Sale Agreement were made as of the Closing Date. To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of both (i) a representation or warranty of the Transferor under the Transfer Agreement or Bring Down Letter and warranty(ii) a representation or warranty of the Sponsor under the Sale Agreement, subject to the exceptions set forth on Schedule III hereto (obligations of the headings Sponsor under the Sale Agreement shall be enforced against the Transferor or the Sponsor, as applicable, as set forth in Schedule II hereto the Sale Agreement. The Trustee acknowledges that the Sponsor shall have no obligation or liability with respect to each any breach of a representation and or warranty being for convenience made by it with respect to any related Mortgage Loans, if the fact, condition or event constituting such breach also constitutes a breach of reference only and a representation or warranty made by the Transferor in the Transfer Agreement or Bring Down Letter, without regard to whether the Transferor fulfills its contractual obligations in respect of such representation or warranty. The Trustee also acknowledges that the Sponsor shall have no way limitingobligation or liability with respect to any breach of a representation or warranty made solely by the Transferor with respect to the Mortgage Loans, expanding without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or otherwise affecting the scope or subject matter thereof)warranty. Except as expressly provided in Section 2.04(a), The Trustee further acknowledges that the Depositor does not make any representations shall have no obligation or warranties regarding the UBS Trust Mortgage Loans.
(c) The representations, warranties and covenants of the Depositor set forth in or made pursuant liability with respect to Section 2.04(a) and Section 2.04(b) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any breach of any of such representations, warranties and covenants, the party discovering such breach shall give prompt written notice thereof representation or warranty with respect to the other partiesMortgage Loans (except as set forth in Section 2.03(a)(v)) under any circumstances.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Inc)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, warrants and covenants to the Trustee, for its own benefit and the benefit of the Certificateholders, and to the Fiscal Agent, the Master Servicer and the Special Servicer, as of the Closing Date, that:
(i) The Depositor is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full power and authority to enter into and consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and delivery by each of the other parties hereto, constitutes a valid, legal and binding obligation of the Depositor, enforceable against the Depositor in accordance with the terms hereof, subject to (A) applicable bankruptcy, insolvency, reorganization, moratorium and other laws affecting the enforcement of creditors' rights generally, and (B) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law.
(v) The Depositor is not in violation of, and its execution and delivery of this Agreement and its performance and compliance with the terms of this Agreement will not constitute a violation of, any law, any order or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Depositor's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(vi) The transfer of the Trust Mortgage Loans to the Trustee as contemplated herein requires no regulatory approval, other than any such approvals as have been obtained, and is not subject to any bulk transfer or similar law in effect in any applicable jurisdiction.
(vii) The Depositor is not transferring the Trust Mortgage Loans to the Trustee with any intent to hinder, delay or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left with unreasonably small assets or capital with which to engage in and conduct its business.
(x) The Depositor 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.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xii) No litigation is pending or, to the best of the Depositor's knowledge, threatened against the Depositor that, if determined adversely to the Depositor, would prohibit the Depositor from entering into this Agreement or that, in the Depositor's good faith and reasonable judgment, is likely to materially and adversely affect either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(xiii) Except for any actions that are the express responsibility of another party hereunder or under the Mortgage Loan Purchase Agreements, and further except for actions that the Depositor is expressly permitted to complete subsequent to the Closing Date, the Depositor has taken all actions required under applicable law to effectuate the transfer of the Trust Mortgage Loans by the Depositor to the Trustee.
(xiv) Immediately prior to the transfer of the UBS Trust Mortgage Loans to the Trust pursuant to this Agreement (and assuming that the UBS Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Trust Mortgage Loan, free and clear of all liens, claims, encumbrances and other interests), (A) the Depositor had good and marketable title to, and was the sole owner and holder of, each UBS Trust Mortgage Loan; and (B) the Depositor has full right and authority to sell, assign and transfer the UBS Trust Mortgage Loans, exclusive of the servicing rights pertaining thereto.
(b) The Depositor hereby makes represents and warrants to the Trustee, for the Trustee's its own benefit and the benefit of the Certificateholders, with respect to each Xxxxxx Trust Mortgage Loan only, the representations and warranties shown on Schedule II hereto, as of the Closing Date or such other date specified in the particular representation and warranty, subject to the exceptions set forth on Schedule III hereto II hereto, as follows (the headings set forth in Schedule II hereto this Section 2.04(b) with respect to each representation and warranty being for convenience of reference only and in no way limiting, expanding or otherwise affecting the scope or subject matter thereof). Except as expressly provided in Section 2.04(a), the Depositor does not make any representations or warranties regarding the UBS Trust Mortgage Loans.
(c) The representations, warranties and covenants of the Depositor set forth in or made pursuant to Section 2.04(a) and Section 2.04(b) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any breach of any of such representations, warranties and covenants, the party discovering such breach shall give prompt written notice thereof to the other parties.):
Appears in 1 contract
Samples: Pooling and Servicing Agreement (LB-UBS Commercial Mortgage Trust 2004-C6)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, warrants and covenants to the Trustee, for its own benefit and the benefit of the Certificateholders, and to the Master Servicer and the Special Servicer, as of the Closing Date, that:
(i) The Depositor is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full power and authority to enter into and consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and delivery by each of the other parties hereto, constitutes a valid, legal and binding obligation of the Depositor, enforceable against the Depositor in accordance with the terms hereof, subject to (A) applicable bankruptcy, insolvency, reorganization, moratorium and other laws affecting the enforcement of creditors' rights generally, and (B) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law.
(v) The Depositor is not in violation of, and its execution and delivery of this Agreement and its performance and compliance with the terms of this Agreement will not constitute a violation of, any law, any order or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Depositor's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(vi) The transfer of the Trust Mortgage Loans to the Trustee as contemplated herein requires no regulatory approval, other than any such approvals as have been obtained, and is not subject to any bulk transfer or similar law in effect in any applicable jurisdiction.
(vii) The Depositor is not transferring the Trust Mortgage Loans to the Trustee with any intent to hinder, delay or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left with unreasonably small assets or capital with which to engage in and conduct its business.
(x) The Depositor 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.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xii) No litigation is pending or, to the best of the Depositor's knowledge, threatened against the Depositor that, if determined adversely to the Depositor, would prohibit the Depositor from entering into this Agreement or that, in the Depositor's good faith and reasonable judgment, is likely to materially and adversely affect either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(xiii) Except for any actions that are the express responsibility of another party hereunder or under the Mortgage Loan Purchase Agreements, and further except for actions that the Depositor is expressly permitted to complete subsequent to the Closing Date, the Depositor has taken all actions required under applicable law to effectuate the transfer of the Trust Mortgage Loans by the Depositor to the Trustee.
(xiv) Immediately prior to the transfer of the UBS Non-Lehman Trust Mortgage Moxxxxxx Loans to the Trust pursuant to this Agreement (and assuming that the UBS related Unaffiliated Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Non-Lehman Trust Mortgage LoanMortgagx Xxxx, free and clear of all liens, claims, encumbrances and other interests), (A) the Depositor had good and marketable title to, and was the sole owner and holder of, each UBS Non-Lehman Trust Mortgage Loan; Mortgagx Xxxx, and (B) the Depositor has full right and authority to sell, assign and transfer the UBS each Non-Lehman Trust Mortgage LoansMoxxxxxx Loan, exclusive of the servicing rights pertaining thereto.
(b) The Depositor hereby makes to the Trustee, for the Trustee's own benefit and the benefit of the Certificateholders, with respect to each Xxxxxx Lehman Trust Mortgage Loan Mortgagx Xxxx only, the representations and warranties shown on Schedule II hereto, as of the Closing Date or such other date specified in the particular representation and warranty, subject to the exceptions set forth on Schedule III hereto (the headings set forth in Schedule II hereto with respect to each representation and warranty being for convenience of reference only and in no way limiting, expanding or otherwise affecting the scope or subject matter thereof). Except as expressly provided in Section 2.04(a), the Depositor does not make any representations or warranties regarding the UBS Non-Lehman Trust Mortgage LoansMortgagx Xxxxs.
(c) The representations, warranties and covenants of the Depositor set forth in or made pursuant to Section 2.04(a) and Section 2.04(b) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any breach of any of such representations, warranties and covenants, the party discovering such breach shall give prompt written notice thereof to the other parties.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (LB-UBS Commercial Mortgage Trust 2007-C2)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, represents and warrants and covenants to the Trustee, for its own benefit and the benefit of the Certificateholders, and to the Master Servicer and the Special ServicerTrustee as follows, as of the Closing Date, thatdate hereof:
(i) The Depositor is duly organized and is validly existing as a corporation duly organized, validly existing and in good standing under the laws of the State of DelawareDelaware and has full power and authority (corporate and other) 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 and the Sale Agreement.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full corporate power and authority to execute, deliver and perform, and to enter into and consummate all the transactions contemplated by by, this Agreement, Agreement and the Sale Agreements and has duly authorized authorized, by all necessary corporate action on its part, the execution, delivery and performance of this Agreement, Agreement and has duly executed the Sale Agreements; and delivered this Agreement.
(iv) This AgreementAgreement and the Sale Agreements, assuming the due authorization, execution and delivery hereof by each of the other parties hereto, constitutes a validlegal, legal valid and binding obligation of the Depositor, enforceable against the Depositor in accordance with the terms hereofits terms, subject subject, as to enforceability, to (Ai) applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally, generally and (Bii) general principles of equity, regardless of whether such enforcement is considered sought in a proceeding in equity or at law.
(viii) The Depositor is not in violation of, and its execution and delivery of this Agreement and its performance the Sale Agreements by the Depositor, the consummation of the transactions contemplated by this Agreement and the Sale Agreements, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Depositor and will not (A) result in a material breach of any term or provision of the charter or by-laws of the Depositor or (B) materially conflict with, result in a violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Depositor is a party or by which it may be bound or (C) constitute a material violation of any statute, order or regulation applicable to the Depositor of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Depositor; and the Depositor is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Depositor's ability to perform or meet any of its obligations under this Agreement.
(iv) No litigation is pending, or, to the best of the Depositor's knowledge, threatened, against the Depositor that would materially and adversely affect the execution, delivery or enforceability of this Agreement will not constitute a violation of, any law, any order and the Sale Agreements or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Depositor's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Depositor to perform its obligations under this Agreement or and the financial condition of Sale Agreements in accordance with the Depositorterms hereof.
(viv) The transfer No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Depositor of, or compliance by the Depositor with, this Agreement and the Sale Agreements or the consummation of the Trust Mortgage Loans to the Trustee as transactions contemplated herein requires no regulatory hereby, or if any such consent, approval, other than any such approvals as have been obtainedauthorization or order is required, and is not subject to any bulk transfer or similar law in effect in any applicable jurisdiction.
(vii) the Depositor has obtained the same. The Depositor is not transferring the Trust Mortgage Loans hereby represents and warrants to the Trustee with any intent respect to hinder, delay or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left with unreasonably small assets or capital with which to engage in and conduct its business.
(x) The Depositor 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.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xii) No litigation is pending or, to the best of the Depositor's knowledge, threatened against the Depositor that, if determined adversely to the Depositor, would prohibit the Depositor from entering into this Agreement or that, in the Depositor's good faith and reasonable judgment, is likely to materially and adversely affect either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(xiii) Except for any actions that are the express responsibility of another party hereunder or under the each Mortgage Loan Purchase Agreements, and further except for actions that the Depositor is expressly permitted to complete subsequent to as of the Closing Date, the Depositor has taken all actions required under applicable law to effectuate and following the transfer of the Trust Mortgage Loans by the Depositor to the Trustee.
(xiv) Immediately prior to the transfer of the UBS Trust Mortgage Loans to it by the Trust pursuant to this Agreement (and assuming that the UBS Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Trust Mortgage Loanrelated Seller, free and clear of all liens, claims, encumbrances and other interests), (A) the Depositor had good title to the Mortgage Loans and marketable title tothe Mortgage Notes were subject to no offsets, and was the sole owner and holder ofclaims, each UBS Trust Mortgage Loan; and (B) the Depositor has full right and authority to sellliens, assign and transfer the UBS Trust Mortgage Loansmortgage, exclusive of the servicing rights pertaining theretopledge, charge, security interest, defenses or counterclaims.
(b) The Depositor hereby makes to the Trustee, for the Trustee's own benefit representations and the benefit warranties of the Certificateholders, each Transferor with respect to each Xxxxxx Trust the related Mortgage Loan onlyLoans in the applicable Transfer Agreement, which have been assigned to the Trustee hereunder, were made as of the date specified in the applicable Transfer Agreement and brought forward to the Closing Date pursuant to the related Bring Down Letter, except as otherwise noted on Exhibit J-1 or Exhibit J-2. The representations and warranties shown on Schedule II hereto, of each Transferor with respect to the Mortgage Loans contained in the Bring Down Letter were made as of the Closing Date Date, except as otherwise noted on Exhibit J-1 or Exhibit J-2. The representations and warranties of the related Seller with respect to the Mortgage Loans contained in the related Sale Agreement were made as of the Closing Date. To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of both (i) a representation or warranty of the applicable Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the related Seller under the related Sale Agreement, the obligations of the related Seller under the related Sale Agreement shall be enforced against the Transferor or such other date specified in the particular representation and warrantySeller, subject to the exceptions set forth on Schedule III hereto (the headings as applicable, as set forth in Schedule II hereto such Sale Agreement. The Trustee acknowledges that the related Seller shall have no obligation or liability with respect to each any breach of a representation and or warranty being for convenience of reference only and in no way limiting, expanding or otherwise affecting the scope or subject matter thereof). Except as expressly provided in Section 2.04(a), the Depositor does not make made by it with respect to any representations or warranties regarding the UBS Trust related Mortgage Loans.
(c) The representations, warranties and covenants of the Depositor except as otherwise set forth in the related Sale Agreement, if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made pursuant by the related Transferor in the related Transfer Agreement, without regard to Section 2.04(a) and Section 2.04(b) whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty. The Trustee also acknowledges that the related Seller shall survive have no obligation or liability with respect to any breach of a representation or warranty made solely by the execution and delivery of this Agreement and shall inure Transferors with respect to the benefit Mortgage Loans, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty. The Trustee further acknowledges that the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of Depositor shall have no obligation or liability with respect to any breach of any of such representations, warranties and covenants, the party discovering such breach shall give prompt written notice thereof representation or warranty with respect to the other partiesMortgage Loans (except as set forth in Section 2.03(a)(v)) under any circumstances.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Trust Series 2005-He2)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, warrants and covenants to the Trustee, for its own benefit and the benefit of the Certificateholders, and to the Fiscal Agent, the Master Servicer and the Special Servicer, as of the Closing Date, that:
(i) The Depositor is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full power and authority to enter into and consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and delivery by each of the other parties hereto, constitutes a valid, legal and binding obligation of the Depositor, enforceable against the Depositor in accordance with the terms hereof, subject to (A) applicable bankruptcy, insolvency, reorganization, moratorium and other laws affecting the enforcement of creditors' rights generally, and (B) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law.
(v) The Depositor is not in violation of, and its execution and delivery of this Agreement and its performance and compliance with the terms of this Agreement will not constitute a violation of, any law, any order or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Depositor's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(vi) The transfer of the Trust Mortgage Loans to the Trustee as contemplated herein requires no regulatory approval, other than any such approvals as have been obtained, and is not subject to any bulk transfer or similar law in effect in any applicable jurisdiction.
(vii) The Depositor is not transferring the Trust Mortgage Loans to the Trustee with any intent to hinder, delay or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a2.01(b).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a2.01(b), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left with unreasonably small assets or capital with which to engage in and conduct its business.
(x) The Depositor 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.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xii) No litigation is pending or, to the best of the Depositor's knowledge, threatened against the Depositor that, if determined adversely to the Depositor, would prohibit the Depositor from entering into this Agreement or that, in the Depositor's good faith and reasonable judgment, is likely to materially and adversely affect either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(xiii) Except for any actions that are the express responsibility of another party hereunder or under the Mortgage Loan Purchase Agreements, and further except for actions that the Depositor is expressly permitted to complete subsequent to the Closing Date, the Depositor has taken all actions required under applicable law to effectuate the transfer of the Trust Mortgage Loans by the Depositor to the Trustee.
(xiv) Immediately prior to the transfer of the UBS Trust ___ Mortgage Loans to the Trust pursuant to this Agreement (and assuming that the UBS ___ Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Trust ___ Mortgage Loan, free and clear of all liens, claims, encumbrances and other interests), (A) the Depositor had good and marketable title to, and was the sole owner and holder of, each UBS Trust ___ Mortgage Loan; and (B) the Depositor has full right and authority to sell, assign and transfer the UBS Trust ___ Mortgage Loans, exclusive of the servicing rights pertaining thereto.
(b) The Depositor hereby makes represents and warrants to the Trustee, for the Trustee's its own benefit and the benefit of the Certificateholders, with respect to each Xxxxxx Trust Mortgage Loan only, the representations and warranties shown on Schedule II heretoLoan, as of the Closing Date or such other date specified in the particular representation and warranty, subject to the exceptions set forth on Schedule III hereto that (the headings set forth in Schedule II hereto this Section 2.04(b) with respect to each representation and warranty being for convenience of reference only and in no way limiting, expanding or otherwise affecting the scope or subject matter thereof). ): [TO COME.] Except as expressly provided in Section 2.04(a), the Depositor does not make any representations or warranties regarding the UBS Trust ___ Mortgage Loans.
(c) The representations, warranties and covenants of the Depositor set forth in or made pursuant to Section 2.04(a) and Section 2.04(b) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any breach of any of such representations, warranties and covenants, the party discovering such breach shall give prompt written notice thereof to the other parties.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Structured Asset Securities Corp Ii)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, represents and warrants and covenants to the Trustee, for its own benefit and the benefit of the Certificateholders, and to the Master Servicer and the Special ServicerTrustee as follows, as of the Closing Date, thatdate hereof:
(i) The Depositor is duly organized and is validly existing as a corporation duly organized, validly existing and in good standing under the laws of the State of DelawareDelaware and has full power and authority (corporate and other) 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 and the Sale Agreement.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full corporate power and authority to execute, deliver and perform, and to enter into and consummate all the transactions contemplated by by, this Agreement, Agreement and the Sale Agreement and has duly authorized authorized, by all necessary corporate action on its part, the execution, delivery and performance of this Agreement and the Sale Agreement, ; and has duly executed this Agreement and delivered this Agreement.
(iv) This the Sale Agreement, assuming the due authorization, execution and delivery hereof by each of the other parties hereto, constitutes a validlegal, legal valid and binding obligation of the Depositor, enforceable against the Depositor in accordance with the terms hereofits terms, subject subject, as to enforceability, to (Ai) applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally, generally and (Bii) general principles of equity, regardless of whether such enforcement is considered sought in a proceeding in equity or at law.
(viii) The Depositor is not in violation of, and its execution and delivery of this Agreement and its performance the Sale Agreement by the Depositor, the consummation of the transactions contemplated by this Agreement and the Sale Agreement, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Depositor and will not (A) result in a material breach of any term or provision of the charter or by-laws of the Depositor or (B) materially conflict with, result in a violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Depositor is a party or by which it may be bound or (C) constitute a material violation of any statute, order or regulation applicable to the Depositor of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Depositor; and the Depositor is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Depositor's ability to perform or meet any of its obligations under this Agreement.
(iv) No litigation is pending, or, to the best of the Depositor's knowledge, threatened, against the Depositor that would materially and adversely affect the execution, delivery or enforceability of this Agreement will not constitute a violation of, any law, any order and the Sale Agreement or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Depositor's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Depositor to perform its obligations under this Agreement or and the financial condition of Sale Agreement in accordance with the Depositorterms hereof.
(viv) The transfer No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Depositor of, or compliance by the Depositor with, this Agreement and the Sale Agreement or the consummation of the Trust Mortgage Loans to the Trustee as transactions contemplated herein requires no regulatory hereby, or if any such consent, approval, other than any such approvals as have been obtainedauthorization or order is required, and is not subject to any bulk transfer or similar law in effect in any applicable jurisdiction.
(vii) the Depositor has obtained the same. The Depositor is not transferring the Trust Mortgage Loans hereby represents and warrants to the Trustee with any intent respect to hinder, delay or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left with unreasonably small assets or capital with which to engage in and conduct its business.
(x) The Depositor 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.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xii) No litigation is pending or, to the best of the Depositor's knowledge, threatened against the Depositor that, if determined adversely to the Depositor, would prohibit the Depositor from entering into this Agreement or that, in the Depositor's good faith and reasonable judgment, is likely to materially and adversely affect either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(xiii) Except for any actions that are the express responsibility of another party hereunder or under the each Mortgage Loan Purchase Agreements, and further except for actions that the Depositor is expressly permitted to complete subsequent to as of the Closing Date, the Depositor has taken all actions required under applicable law to effectuate and following the transfer of the Trust Mortgage Loans by the Depositor to the Trustee.
(xiv) Immediately prior to the transfer of the UBS Trust Mortgage Loans to it by the Trust pursuant to this Agreement (and assuming that the UBS Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Trust Mortgage LoanSponsor, free and clear of all liens, claims, encumbrances and other interests), (A) the Depositor had good title to the Mortgage Loans and marketable title tothe Mortgage Notes were subject to no offsets, and was the sole owner and holder ofclaims, each UBS Trust Mortgage Loan; and (B) the Depositor has full right and authority to sellliens, assign and transfer the UBS Trust Mortgage Loansmortgage, exclusive of the servicing rights pertaining theretopledge, charge, security interest, defenses or counterclaims.
(b) The Depositor hereby makes to the Trustee, for the Trustee's own benefit representations and the benefit warranties of the Certificateholders, Transferor with respect to each Xxxxxx Trust the Mortgage Loan onlyLoans in the Transfer Agreement, which have been assigned to the Trustee hereunder, were made as of the date specified in the Transfer Agreement. The representations and warranties shown on Schedule II heretoof the Sponsor with respect to the Mortgage Loans contained in the Sale Agreement, which have been assigned to the Trustee hereunder, were made as of the Closing Date Date. To the extent that any fact, condition or such other date specified in event with respect to a Mortgage Loan constitutes a breach of a representation or warranty of the particular representation and warrantySponsor under the Sale Agreement, subject to the exceptions set forth on Schedule III hereto (obligations of the headings Sponsor under the Sale Agreement shall be enforced by the Depositor against the Sponsor, as set forth in Schedule II hereto the Sale Agreement. The Trustee acknowledges that the Depositor shall have no obligation or liability with respect to each any breach of any representation and or warranty being for convenience of reference only and in no way limiting, expanding or otherwise affecting with respect to the scope or subject matter thereof). Except Mortgage Loans (except as expressly provided set forth in Section 2.04(a2.03(a)(v), the Depositor does not make ) under any representations or warranties regarding the UBS Trust Mortgage Loanscircumstances.
(c) The representations, warranties and covenants of the Depositor set forth in or made pursuant to Section 2.04(a) and Section 2.04(b) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any the Depositor, the Servicer or the Trustee (or its custodian) of a breach of any of such representationsrepresentations and warranties that adversely and materially affects the value of the related Mortgage Loan, warranties and covenantsPrepayment Charges or the interests of the Certificateholders, the party discovering such breach shall give prompt written notice thereof to the other parties. Within ninety (90) days of the discovery of such breach of any representation or warranty, the Sponsor shall either (a) cure such breach in all material respects, (b) repurchase such Mortgage Loan or any property acquired in respect thereof from the Trustee at the Purchase Price or (c) within the two year period following the Closing Date, substitute a Replacement Mortgage Loan for the affected Mortgage Loan. In the event of discovery of a breach of any representation and warranty of the Sponsor, the Trustee's rights shall be enforced under the Sale Agreement for the benefit of Certificateholders. If a breach of the representations and warranties set forth in the Purchase Agreement hereof exists solely due to the unenforceability of a Prepayment Charge, the Trustee or the other party having notice thereof shall notify the Servicer thereof and not seek to enforce the repurchase remedy provided for herein unless such Mortgage Loan is not current. In the event that such breach relates solely to the unenforceability of a Prepayment Charge, amounts received in respect of such indemnity up to the amount of such Prepayment Charge shall be distributed pursuant to Section 4.04(b)(i). As provided in the Sale Agreement, if the Sponsor substitutes for a Mortgage Loan for which there is a breach of any representations and warranties in the Purchase Agreement which adversely and materially affects the value of such Mortgage Loan and such substitute mortgage loan is not a Replacement Mortgage Loan, under the terms of the Sale Agreement, the Sponsor will, in exchange for such substitute Mortgage Loan, (i) provide the applicable Purchase Price for the affected Mortgage Loan or (ii) within two years of the Closing Date, substitute such affected Mortgage Loan with a Replacement Mortgage Loan. Any such substitution shall not be effected prior to the additional delivery to the Trustee of a Request for Release substantially in the form of Exhibit I and shall not be effected unless it is within two years of the Startup Day. As provided in the Sale Agreement, the Sponsor indemnifies and holds the Issuing Entity, the Trustee (or its custodian, as applicable), the Depositor, the Servicer and each Certificateholder harmless against any and all taxes, claims, losses, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, fees and expenses that the Issuing Entity, the Trustee (or its custodian, as applicable), the Depositor, the Servicer and any Certificateholder may sustain in connection with any actions of the Sponsor relating to a repurchase of a Mortgage Loan other than in compliance with the terms of this Section 2.03 and the Sale Agreement, to the extent that any such action causes (i) any federal or state tax to be imposed on the Issuing Entity or any REMIC provided for herein, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup day" under Section 860G(d)(1) of the Code, or (ii) any REMIC created hereunder to fail to qualify as a REMIC at any time that any Certificate is outstanding. In furtherance of the foregoing, if the Sponsor is not a member of MERS and repurchases a Mortgage Loan which is registered on the MERS System, the Sponsor, at its own expense and without any right of reimbursement, shall cause MERS to execute and deliver an assignment of the Mortgage in recordable form to transfer the Mortgage from MERS to the Sponsor and shall cause such Mortgage to be removed from registration on the MERS System in accordance with MERS' rules and regulations. With respect to any Mortgage Loan repurchased by the Sponsor pursuant to the Sale Agreement, the principal portion of the funds received by the Servicer in respect of such repurchase of a Mortgage Loan will be considered a Principal Prepayment and shall be deposited in the Certificate Account pursuant to Section 3.05. Upon receipt by the Trustee of notice from the Servicer of receipt by the Servicer of the full amount of the Purchase Price for a Deleted Mortgage Loan, and upon receipt by the Trustee of the Mortgage File for a Replacement Mortgage Loan substituted for a Deleted Mortgage Loan and a Request for Release, the Trustee shall release and reassign to the Sponsor the related Mortgage File for the Deleted Mortgage Loan and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation or warranty, as shall be necessary to vest in such party or its designee or assignee title to any Deleted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Depositor or the Sponsor, and the Trustee (and its custodian) shall have no further responsibility with respect to the Mortgage File relating to such Deleted Mortgage Loan. With respect to each Replacement Mortgage Loan to be delivered to the Trustee pursuant to the terms of this Article II in exchange for a Deleted Mortgage Loan: (i) the Sponsor must deliver to the Trustee the Mortgage File for the Replacement Mortgage Loan containing the documents set forth in Section 2.01 along with a written certification certifying as to the Mortgage Loan satisfying all requirements under the definition of Replacement Mortgage Loan and the delivery of such Mortgage File and containing the granting language set forth in Section 2.01; and (ii) the Depositor will be deemed to have made, with respect to such Replacement Mortgage Loan, each of the representations and warranties made by it with respect to the related Deleted Mortgage Loan. The Trustee shall review the Mortgage File with respect to each Replacement Mortgage Loan and certify to the Depositor that all documents required by Section 2.01(A)-(B), (C) (if applicable), and (D)-(E) have been executed and received. For any month in which the Sponsor substitutes one or more Replacement Mortgage Loans for one or more Deleted Mortgage Loans, the Sponsor will determine the amount (if any) by which the aggregate principal balance of all such Replacement Mortgage Loans as of the date of substitution and the aggregate Prepayment Charges with respect to such Replacement Mortgage Loans is less than the aggregate Stated Principal Balance (after application of the principal portion of the Scheduled Payment due in the month of substitution) and aggregate Prepayment Charges of all such Deleted Mortgage Loans. An amount equal to the aggregate of the deficiencies described in the preceding sentence (such amount, the "Substitution Adjustment Amount") plus an amount equal to any unreimbursed costs, penalties and/or damages incurred by the Trust Fund in connection with any violation relating to such Deleted Mortgage Loan of any predatory or abusive lending law shall be remitted by the Sponsor to the Trustee for deposit into the Certificate Account by the Sponsor on the Determination Date for the Distribution Date relating to the Prepayment Period during which the related Mortgage Loan became required to be purchased or replaced hereunder. Notwithstanding any other provision of this Agreement, the right to substitute Mortgage Loans pursuant to this Article II shall be subject to the additional limitations that no substitution of a Replacement Mortgage Loan for a Deleted Mortgage Loan shall be made unless the Trustee shall have received an Opinion of Counsel (at the expense of the party seeking to make the substitution) that, under current law, such substitution will not (A) affect adversely the status of any REMIC established hereunder as a REMIC, or of the related "regular interests" as "regular interests" in any such REMIC, or (B) cause any such REMIC to engage in a "prohibited transaction" or prohibited contribution pursuant to the REMIC Provisions. The Depositor shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Replacement Mortgage Loan or Replacement Mortgage Loans. Upon such substitution by the Sponsor, such Replacement Mortgage Loan or Replacement Mortgage Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and the Sale Agreement, including all applicable representations and warranties thereof included in the Sale Agreement as of the date of substitution.
(d) It is understood and agreed that the representations, warranties and indemnification (i) set forth in this Section 2.03, (ii) of the Sponsor and the Depositor set forth in the Sale Agreement and assigned to the Trustee by the Depositor hereunder and (iii) of the Transferor, assigned by the Sponsor to the Depositor pursuant to the Sale Agreement and assigned to the Trustee by the Depositor hereunder shall each survive delivery of the Mortgage Files and the Assignment of Mortgage of each Mortgage Loan to the Trustee and shall continue throughout the term of this Agreement.
(e) The Depositor shall deliver a copy of the Mortgage Loan Schedule to the Servicer on the Closing Date.
(f) The Depositor shall notify the Servicer and the Trustee when any NIM Notes are issued and when such NIM Notes are no longer outstanding.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (First Franklin Mortgage Loan Trust, Series 2007-Ff1)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, represents and warrants and covenants to the Trustee, for its own benefit and the benefit of the Certificateholders, and to the Master Servicer and the Special ServicerTrustee as follows, as of the Closing Date, that:date hereof
(i) The Depositor is duly organized and is validly existing as a corporation duly organized, validly existing and in good standing under the laws of the State of DelawareDelaware and has full power and authority (corporate and other) 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 and the Sale Agreement.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full corporate power and authority to execute, deliver and perform, and to enter into and consummate all the transactions contemplated by by, this Agreement, Agreement and the Sale Agreement and has duly authorized authorized, by all necessary corporate action on its part, the execution, delivery and performance of this Agreement and the Sale Agreement, ; and has duly executed this Agreement and delivered this Agreement.
(iv) This the Sale Agreement, assuming the due authorization, execution and delivery hereof by each of the other parties hereto, constitutes a validlegal, legal valid and binding obligation of the Depositor, enforceable against the Depositor in accordance with the terms hereofits terms, subject subject, as to enforceability, to (Ai) applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally, generally and (Bii) general principles of equity, regardless of whether such enforcement is considered sought in a proceeding in equity or at law.
(viii) The Depositor is not in violation of, and its execution and delivery of this Agreement and its performance the Sale Agreement by the Depositor, the consummation of the transactions contemplated by this Agreement and the Sale Agreement, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Depositor and will not (A) result in a material breach of any term or provision of the charter or by-laws of the Depositor or (B) materially conflict with, result in a violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Depositor is a party or by which it may be bound or (C) constitute a material violation of any statute, order or regulation applicable to the Depositor of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Depositor; and the Depositor is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Depositor's ability to perform or meet any of its obligations under this Agreement.
(iv) No litigation is pending, or, to the best of the Depositor's knowledge, threatened, against the Depositor that would materially and adversely affect the execution, delivery or enforceability of this Agreement will not constitute a violation of, any law, any order and the Sale Agreement or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Depositor's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Depositor to perform its obligations under this Agreement or and the financial condition of Sale Agreement in accordance with the Depositorterms hereof.
(viv) The transfer No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Depositor of, or compliance by the Depositor with, this Agreement and the Sale Agreement or the consummation of the Trust Mortgage Loans to the Trustee as transactions contemplated herein requires no regulatory hereby, or if any such consent, approval, other than any such approvals as have been obtainedauthorization or order is required, and is not subject to any bulk transfer or similar law in effect in any applicable jurisdiction.
(vii) the Depositor has obtained the same. The Depositor is not transferring the Trust Mortgage Loans hereby represents and warrants to the Trustee with any intent respect to hinder, delay or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left with unreasonably small assets or capital with which to engage in and conduct its business.
(x) The Depositor 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.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xii) No litigation is pending or, to the best of the Depositor's knowledge, threatened against the Depositor that, if determined adversely to the Depositor, would prohibit the Depositor from entering into this Agreement or that, in the Depositor's good faith and reasonable judgment, is likely to materially and adversely affect either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(xiii) Except for any actions that are the express responsibility of another party hereunder or under the each Mortgage Loan Purchase Agreements, and further except for actions that the Depositor is expressly permitted to complete subsequent to as of the Closing Date, the Depositor has taken all actions required under applicable law to effectuate and following the transfer of the Trust Mortgage Loans by the Depositor to the Trustee.
(xiv) Immediately prior to the transfer of the UBS Trust Mortgage Loans to it by the Trust pursuant to this Agreement (and assuming that the UBS Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Trust Mortgage LoanSeller, free and clear of all liens, claims, encumbrances and other interests), (A) the Depositor had good title to the Mortgage Loans and marketable title tothe Mortgage Notes were subject to no offsets, and was the sole owner and holder ofclaims, each UBS Trust Mortgage Loan; and (B) the Depositor has full right and authority to sellliens, assign and transfer the UBS Trust Mortgage Loansmortgage, exclusive of the servicing rights pertaining theretopledge, charge, security interest, defenses or counterclaims.
(b) The Depositor hereby makes To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of a representation or warranty of the TrusteeSeller under the Sale Agreement, for the only right or remedy of the Trustee or of any Certificateholder shall be the Trustee's own benefit and right to enforce the benefit obligations of the Certificateholders, Seller under any applicable representation or warranty made by it. The Trustee acknowledges that the Depositor shall have no obligation or liability with respect to each Xxxxxx Trust Mortgage Loan only, the representations and warranties shown on Schedule II hereto, as any breach of the Closing Date any representation or such other date specified in the particular representation and warranty, subject warranty with respect to the exceptions set forth on Schedule III hereto Mortgage Loans (the headings except as set forth in Schedule II hereto with respect to each representation and warranty being for convenience of reference only and in no way limiting, expanding or otherwise affecting the scope or subject matter thereofSection 2.03(a)(v). Except as expressly provided in Section 2.04(a), the Depositor does not make ) under any representations or warranties regarding the UBS Trust Mortgage Loanscircumstances.
(c) The representations, warranties and covenants of the Depositor set forth in or made pursuant to Section 2.04(a) and Section 2.04(b) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any the Depositor, the Servicer or the Trustee of a breach of any of such representationsrepresentations and warranties set forth in the Sale Agreement that adversely and materially affects the value of the related Mortgage Loan, warranties and covenantsprepayment charges or the interests of the Certificateholders, the party discovering such breach shall give prompt written notice thereof to the other parties. Within 90 days of the discovery of a breach of any representation or warranty given to the Trustee by the Depositor, the Seller and assigned to the Trustee, the Depositor, or the Seller shall either (a) cure such breach in all material respects, (b) repurchase such Mortgage Loan or any property acquired in respect thereof from the Trustee at the Purchase Price or (c) within the two year period following the Closing Date, substitute a Replacement Mortgage Loan for the affected Mortgage Loan. In the event of discovery of a breach of any representation and warranty of the Seller or the Depositor, the Trustee shall enforce its rights under the Sale Agreement or thereunder for the benefit of Certificateholders. In the event of a breach of the representations and warranties with respect to the Mortgage Loans set forth in a Sale Agreement, the Trustee shall enforce the right of the Trust Fund to be indemnified for such breach of representation and warranty. In the event that such breach relates solely to the unenforceability of a prepayment charge, amounts received in respect of such indemnity up to the amount of such prepayment charge shall be distributed pursuant to Section 4.04(b)(i)(B). As provided in the Sale Agreement, if the Seller substitutes for a Mortgage Loan for which there is a breach of any representations and warranties which adversely and materially affects the value of such Mortgage Loan and such substitute mortgage loan is not a Replacement Mortgage Loan, under the terms of the Sale Agreement, the Seller will, in exchange for such substitute Mortgage Loan, (i) provide the applicable Purchase Price for the affected Mortgage Loan or (ii) within two years of the Closing Date, substitute such affected Mortgage Loan with a Replacement Mortgage Loan. Any such substitution shall not be effected prior to the additional delivery to the Trustee of a Request for Release substantially in the form of Exhibit I and shall not be effected unless it is within two years of the Startup Day. As provided in the Sale Agreement, the Seller indemnifies and holds the Trust Fund, the Trustee, the Depositor, the Servicer and each Certificateholder harmless against any and all taxes, claims, losses, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, fees and expenses that the Trust Fund, the Trustee, the Depositor, the Servicer and any Certificateholder may sustain in connection with any actions of the Seller relating to a repurchase of a Mortgage Loan other than in compliance with the terms of this Section 2.03 and the Sale Agreement, to the extent that any such action causes (i) any federal or state tax to be imposed on the Trust Fund or any REMIC provided for herein, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup day" under Section 860G(d)(1) of the Code, or (ii) any REMIC created hereunder to fail to qualify as a REMIC at any time that any Certificate is outstanding. With respect to any Mortgage Loan repurchased by the Depositor pursuant to this Agreement or by the Seller pursuant to the Sale Agreement, the principal portion of the funds received by the Servicer in respect of such repurchase of a Mortgage Loan will be considered a Principal Prepayment and shall be deposited by the Servicer in the Certificate Account pursuant to Section 3.05. The Trustee, upon receipt of the full amount of the Purchase Price for a Deleted Mortgage Loan, or upon receipt of the Mortgage File for a Replacement Mortgage Loan substituted for a Deleted Mortgage Loan, shall release or cause to be released and reassign to the Depositor or the Seller, as applicable, the related Mortgage File for the Deleted Mortgage Loan and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation or warranty, as shall be necessary to vest in such party or its designee or assignee title to any Deleted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Trustee, and the Trustee shall not have any further responsibility with respect to the Mortgage File relating to such Deleted Mortgage Loan. With respect to each Replacement Mortgage Loan to be delivered to the Trustee pursuant to the terms of this Article II in exchange for a Deleted Mortgage Loan: (i) the Depositor or the Seller, as applicable, must deliver to the Trustee the Mortgage File for the Replacement Mortgage Loan containing the documents set forth in Section 2.01 along with a written certification certifying as to the delivery of such Mortgage File and containing the granting language set forth in the first sentence of Section 2.01; and (ii) the Depositor will be deemed to have made, with respect to such Replacement Mortgage Loan, each of the representations and warranties made by it with respect to the related Deleted Mortgage Loan. The Trustee shall review the Mortgage File with respect to each Replacement Mortgage Loan and certify to the Depositor that all documents required by Section 2.01 have been executed and received. For any month in which the Seller substitutes one or more Replacement Mortgage Loans for one or more Deleted Mortgage Loans, the Seller will determine the amount (if any) by which the aggregate principal balance of all such Replacement Mortgage Loans as of the date of substitution and the aggregate prepayment penalties with respect to such Replacement Mortgage Loans is less than the aggregate Stated Principal Balance (after application of the principal portion of the Scheduled Payment due in the month of substitution) and aggregate prepayment penalties of all such Deleted Mortgage Loans. An amount equal to the aggregate of the deficiencies described in the preceding sentence (such amount, the "Substitution Adjustment Amount") shall be delivered by the Seller to the Servicer for deposit into the Collection Account on the Determination Date for the Distribution Date relating to the Prepayment Period during which the related Mortgage Loan became required to be purchased or replaced hereunder. The Seller shall give or cause to be given written notice to the Certificateholders that such substitution has taken place, shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Replacement Mortgage Loan or Replacement Mortgage Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the Trustee. Upon such substitution by the Seller, such Replacement Mortgage Loan or Replacement Mortgage Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and the Sale Agreement, including all applicable representations and warranties thereof included in the Sale Agreement as of the date of substitution. In addition, the Seller shall obtain at its own expense and deliver to the Trustee an Opinion of Counsel addressed to the Trustee to the effect that such substitution will not (a) cause any federal tax to be imposed on the Trust Fund or any REMIC provided for herein, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup day" under Section 860G(d)(1) of the Code or (b) adversely affect the status of any REMIC provided for herein as a REMIC. If any such Opinion of Counsel can not be delivered, then such substitution may only be effected at such time as the required Opinion of Counsel can be given.
(d) It is understood and agreed that the representations, warranties and indemnification (i) set forth in this Section 2.03 and (ii) of the Seller and the Depositor set forth in the Sale Agreement and assigned to the Trustee by the Depositor hereunder shall each survive delivery of the Mortgage Files and the Assignment of Mortgage of each Mortgage Loan to the Trustee and shall continue throughout the term of this Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Specialty Underwriting & Residental Finance Trust, Series 2004-Aa1)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, represents and warrants and covenants to the Trustee, for its own benefit and the benefit of the Certificateholders, and to the Master Servicer and the Special ServicerTrustee as follows, as of the Closing Date, that:date hereof
(i) The Depositor is duly organized and is validly existing as a corporation duly organized, validly existing and in good standing under the laws of the State of DelawareDelaware and has full power and authority (corporate and other) 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 and the Sale Agreement.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full corporate power and authority to execute, deliver and perform, and to enter into and consummate all the transactions contemplated by by, this Agreement, Agreement and the Sale Agreement and has duly authorized authorized, by all necessary corporate action on its part, the execution, delivery and performance of this Agreement and the Sale Agreement, ; and has duly executed this Agreement and delivered this Agreement.
(iv) This the Sale Agreement, assuming the due authorization, execution and delivery hereof by each of the other parties hereto, constitutes a validlegal, legal valid and binding obligation of the Depositor, enforceable against the Depositor in accordance with the terms hereofits terms, subject subject, as to enforceability, to (Ai) applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally, generally and (Bii) general principles of equity, regardless of whether such enforcement is considered sought in a proceeding in equity or at law.
(viii) The Depositor is not in violation of, and its execution and delivery of this Agreement and its performance the Sale Agreement by the Depositor, the consummation of the transactions contemplated by this Agreement and the Sale Agreement, and the fulfillment of or compliance with the terms hereof are in the ordinary course of this Agreement business of the Depositor and will not (A) result in a material breach of any term or provision of the charter or by-laws of the Depositor or (B) materially conflict with, result in a violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Depositor is a party or by which it may be bound or (C) constitute a material violation ofof any statute, any law, any order or decree regulation applicable to the Depositor of any court court, regulatory body, administrative agency or arbitergovernmental body having jurisdiction over the Depositor; and the Depositor is not in breach or violation of any material indenture or other material agreement or instrument, or any order, regulation or demand in violation of any federalstatute, state order or local regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or regulatory authority, which violation, in violation may materially impair the Depositor's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Depositor to perform or meet any of its obligations under this Agreement or the financial condition of the DepositorAgreement.
(vi) The transfer of the Trust Mortgage Loans to the Trustee as contemplated herein requires no regulatory approval, other than any such approvals as have been obtained, and is not subject to any bulk transfer or similar law in effect in any applicable jurisdiction.
(vii) The Depositor is not transferring the Trust Mortgage Loans to the Trustee with any intent to hinder, delay or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left with unreasonably small assets or capital with which to engage in and conduct its business.
(x) The Depositor 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.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xiiiv) No litigation is pending or, to the best of the Depositor's knowledge, threatened threatened, against the Depositor that, if determined adversely to the Depositor, that would prohibit the Depositor from entering into this Agreement or that, in the Depositor's good faith and reasonable judgment, is likely to materially and adversely affect either the execution, delivery or enforceability of this Agreement and the Sale Agreement or the ability of the Depositor to perform its obligations under this Agreement or and the financial condition of Sale Agreement in accordance with the Depositorterms hereof.
(xiiiv) 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 Depositor of, or compliance by the Depositor with, this Agreement and the Sale Agreement or the consummation of the transactions contemplated hereby, or if any actions that are such consent, approval, authorization or order is required, the express responsibility of another party hereunder or under Depositor has obtained the same. The Depositor hereby represents and warrants to the Trustee with respect to each Mortgage Loan Purchase Agreements, and further except for actions that the Depositor is expressly permitted to complete subsequent to as of the Closing Date, the Depositor has taken all actions required under applicable law to effectuate and following the transfer of the Trust Mortgage Loans by the Depositor to the Trustee.
(xiv) Immediately prior to the transfer of the UBS Trust Mortgage Loans to it by the Trust pursuant to this Agreement (and assuming that the UBS Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Trust Mortgage LoanSponsor, free and clear of all liens, claims, encumbrances and other interests), (A) the Depositor had good title to the Mortgage Loans and marketable title tothe Mortgage Notes were subject to no offsets, and was the sole owner and holder ofclaims, each UBS Trust liens, mortgage, pledge, charge, security interest, defenses or counterclaims.
(vi) Each Mortgage Loan; and (B) the Depositor Loan in Group One has full right and authority to sell, assign and transfer the UBS Trust Mortgage Loans, exclusive a Stated Principal Balance as of the servicing rights pertaining theretoCut-off Date that complies with the loan limitations of Xxxxxx Xxx and Xxxxxxx Mac as in effect on the Cut-off Date.
(b) The Depositor hereby makes To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of a representation or warranty of the TrusteeSponsor under the Sale Agreement, for the only right or remedy of the Trustee or of any Certificateholder shall be the Trustee's own benefit and right to enforce the benefit obligations of the Certificateholders, Sponsor under any applicable representation or warranty made by it. The Trustee acknowledges that the Depositor shall have no obligation or liability with respect to each Xxxxxx Trust Mortgage Loan only, the representations and warranties shown on Schedule II hereto, as any breach of the Closing Date any representation or such other date specified in the particular representation and warranty, subject warranty with respect to the exceptions set forth on Schedule III hereto Mortgage Loans (the headings except as set forth in Schedule II hereto with respect to each representation and warranty being for convenience of reference only and in no way limiting, expanding or otherwise affecting the scope or subject matter thereofSection 2.03(a)(v). Except as expressly provided in Section 2.04(a), the Depositor does not make ) under any representations or warranties regarding the UBS Trust Mortgage Loanscircumstances.
(c) The representations, warranties and covenants of the Depositor set forth in or made pursuant to Section 2.04(a) and Section 2.04(b) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any the Depositor, the Servicer, or the Trustee of a breach of any of such representationsrepresentations and warranties set forth in the Sale Agreement that adversely and materially affects the 66 value of the related Mortgage Loan, warranties and covenantsprepayment charges or the interests of the Certificateholders, the party discovering such breach shall give prompt written notice thereof to the other parties. Within ninety (90) days of the discovery of a breach of any representation or warranty given to the Trustee by the Depositor, the Sponsor and assigned by the Depositor to the Trustee, the Depositor, or the Sponsor shall either (a) cure such breach in all material respects, (b) repurchase such Mortgage Loan or any property acquired in respect thereof from the Trustee at the Purchase Price or (c) within the two year period following the Closing Date, substitute a Replacement Mortgage Loan for the affected Mortgage Loan. In the event of discovery of a breach of any representation and warranty of the Sponsor or the Depositor, the Trustee shall enforce its rights under the Sale Agreement or thereunder for the benefit of Certificateholders. In the event of a breach of the representations and warranties with respect to the Mortgage Loans set forth in a Sale Agreement, the Trustee shall enforce the right of the Issuing Entity to be indemnified for such breach of representation and warranty. In the event that such breach relates solely to the unenforceability of a prepayment charge, amounts received in respect of such indemnity up to the amount of such prepayment charge shall be distributed pursuant to Section 4.04(b)(i)(B). As provided in the Sale Agreement, if the Sponsor substitutes for a Mortgage Loan for which there is a breach of any representations and warranties which adversely and materially affects the value of such Mortgage Loan and such substitute mortgage loan is not a Replacement Mortgage Loan, under the terms of the Sale Agreement, the Sponsor will, in exchange for such substitute Mortgage Loan, (i) provide the applicable Purchase Price for the affected Mortgage Loan or (ii) within two years of the Closing Date, substitute such affected Mortgage Loan with a Replacement Mortgage Loan. Any such substitution shall not be effected prior to the additional delivery to the Trustee of a Request for Release substantially in the form of Exhibit I and shall not be effected unless it is within two years of the Startup Day. As provided in the Sale Agreement, the Sponsor indemnifies and holds the Issuing Entity, the Trustee, the Depositor, the Servicer and each Certificateholder harmless against any and all taxes, claims, losses, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, fees and expenses that the Issuing Entity, the Trustee, the Depositor, the Servicer and any Certificateholder may sustain in connection with any actions of the Sponsor relating to a repurchase of a Mortgage Loan other than in compliance with the terms of this Section 2.03 and the Sale Agreement, to the extent that any such action causes (i) any federal or state tax to be imposed on the Issuing Entity or any REMIC provided for herein, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup day" under Section 860G(d)(1) of the Code, or (ii) any REMIC created hereunder to fail to qualify as a REMIC at any time that any Certificate is outstanding. With respect to any Mortgage Loan repurchased by the Depositor pursuant to this Agreement or by the Sponsor pursuant to the Sale Agreement, the principal portion of the funds received by the Servicer in respect of such repurchase of a Mortgage Loan will be considered a Principal Prepayment and shall be deposited by the Servicer in the Certificate Account pursuant to Section 3.05. The Trustee, upon receipt of the full amount of the Purchase Price for a Deleted Mortgage Loan, or upon receipt of the Mortgage File for a Replacement Mortgage Loan substituted for a Deleted Mortgage Loan, shall release or cause to be released and reassign to the Depositor or the Sponsor, as applicable, the related Mortgage File for the Deleted Mortgage Loan and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation or warranty, as shall be necessary to vest in such party or its designee or assignee title to any Deleted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Trustee, and the Trustee shall not have any further responsibility with respect to the Mortgage File relating to such Deleted Mortgage Loan. With respect to each Replacement Mortgage Loan to be delivered to the Trustee pursuant to the terms of this Article II in exchange for a Deleted Mortgage Loan: (i) the Depositor or the Sponsor, as applicable, must deliver to the Trustee the Mortgage File for the Replacement Mortgage Loan containing the documents set forth in Section 2.01 along with a written certification certifying as to the delivery of such Mortgage File and containing the granting language set forth in the first sentence of Section 2.01; and (ii) the Depositor will be deemed to have made, with respect to such Replacement Mortgage Loan, each of the representations and warranties made by it with respect to the related Deleted Mortgage Loan. The Trustee shall review the Mortgage File with respect to each Replacement Mortgage Loan and certify to the Depositor that all documents required by Section 2.01 have been executed and received. For any month in which the Sponsor substitutes one or more Replacement Mortgage Loans for one or more Deleted Mortgage Loans, the Sponsor will determine the amount (if any) by which the aggregate principal balance of all such Replacement Mortgage Loans as of the date of substitution and the aggregate prepayment charges with respect to such Replacement Mortgage Loans is less than the aggregate Stated Principal Balance (after application of the principal portion of the Scheduled Payment due in the month of substitution) and aggregate prepayment charges of all such Deleted Mortgage Loans. An amount equal to the aggregate of the deficiencies described in the preceding sentence (such amount, the "Substitution Adjustment Amount") shall be delivered by the Sponsor to the Servicer for deposit into the Collection Account on the Determination Date for the Distribution Date relating to the Prepayment Period during which the related Mortgage Loan became required to be purchased or replaced hereunder. The Sponsor shall give or cause to be given written notice to the Certificateholders that such substitution has taken place, shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Replacement Mortgage Loan or Replacement Mortgage Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the Trustee. Upon such substitution by the Sponsor, such Replacement Mortgage Loan or Replacement Mortgage Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and the Sale Agreement, including all applicable representations and warranties thereof included in the Sale Agreement as of the date of substitution. In addition, the Sponsor shall obtain at its own expense and deliver to the Trustee an Opinion of Counsel addressed to the Trustee to the effect that such substitution will not (a) cause any federal tax to be imposed on the Issuing Entity or any REMIC provided for herein, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup day" under Section 860G(d)(1) of the Code or (b) adversely affect the status of any REMIC provided for herein as a REMIC. If any such Opinion of Counsel can not be delivered, then such substitution may only be effected at such time as the required Opinion of Counsel can be given.
(d) It is understood and agreed that the representations, warranties and indemnification (i) set forth in this Section 2.03 and (ii) of the Sponsor and the Depositor set forth in the Sale Agreement and assigned to the Trustee by the Depositor hereunder shall each survive delivery of the Mortgage Files and the Assignment of Mortgage of each Mortgage Loan to the Trustee and shall continue throughout the term of this Agreement.
Appears in 1 contract
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, represents and warrants and covenants to the TrusteeServicer, for its own benefit the Trustee and the benefit of the Certificateholders, and to the Master Servicer and the Special ServicerNIM Insurer as follows, as of the Closing Date, that:date hereof
(i) The Depositor is duly organized and is validly existing as a corporation duly organized, validly existing and in good standing under the laws of the State of DelawareDelaware and has full power and authority (corporate and other) 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 and the Sale Agreement.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full corporate power and authority to execute, deliver and perform, and to enter into and consummate all the transactions contemplated by by, this Agreement, Agreement and the Sale Agreement and has duly authorized authorized, by all necessary corporate action on its part, the execution, delivery and performance of this Agreement and the Sale Agreement, ; and has duly executed this Agreement and delivered this Agreement.
(iv) This the Sale Agreement, assuming the due authorization, execution and delivery hereof by each of the other parties hereto, constitutes a validlegal, legal valid and binding obligation of the Depositor, enforceable against the Depositor in accordance with the terms hereofits terms, subject subject, as to enforceability, to (Ai) applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally, generally and (Bii) general principles of equity, regardless of whether such enforcement is considered sought in a proceeding in equity or at law.
(viii) The Depositor is not in violation of, and its execution and delivery of this Agreement and its performance the Sale Agreement by the Depositor, the consummation of the transactions contemplated by this Agreement and the Sale Agreement, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Depositor and will not (A) result in a material breach of any term or provision of the charter or by-laws of the Depositor or (B) materially conflict with, result in a violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Depositor is a party or by which it may be bound or (C) constitute a 41 material violation of any statute, order or regulation applicable to the Depositor of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Depositor; and the Depositor is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Depositor's ability to perform or meet any of its obligations under this Agreement.
(iv) No litigation is pending, or, to the best of the Depositor's knowledge, threatened, against the Depositor that would materially and adversely affect the execution, delivery or enforceability of this Agreement will not constitute a violation of, any law, any order and the Sale Agreement or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Depositor's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Depositor to perform its obligations under this Agreement or and the financial condition of Sale Agreement in accordance with the Depositorterms hereof.
(viv) The transfer No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Depositor of, or compliance by the Depositor with, this Agreement and the Sale Agreement or the consummation of the Trust Mortgage Loans to the Trustee as transactions contemplated herein requires no regulatory hereby, or if any such consent, approval, other than any such approvals as have been obtainedauthorization or order is required, and is not subject to any bulk transfer or similar law in effect in any applicable jurisdiction.
(vii) the Depositor has obtained the same. The Depositor is not transferring the Trust Mortgage Loans hereby represents and warrants to the Trustee with any intent respect to hinder, delay or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left with unreasonably small assets or capital with which to engage in and conduct its business.
(x) The Depositor 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.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xii) No litigation is pending or, to the best of the Depositor's knowledge, threatened against the Depositor that, if determined adversely to the Depositor, would prohibit the Depositor from entering into this Agreement or that, in the Depositor's good faith and reasonable judgment, is likely to materially and adversely affect either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(xiii) Except for any actions that are the express responsibility of another party hereunder or under the each Mortgage Loan Purchase Agreements, and further except for actions that the Depositor is expressly permitted to complete subsequent to as of the Closing Date, the Depositor has taken all actions required under applicable law to effectuate and following the transfer of the Trust Mortgage Loans by the Depositor to the Trustee.
(xiv) Immediately prior to the transfer of the UBS Trust Mortgage Loans to it by the Trust pursuant to this Agreement (and assuming that the UBS Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Trust Mortgage LoanSeller, free and clear of all liens, claims, encumbrances and other interests), (A) the Depositor had good title to the Mortgage Loans and marketable title tothe Mortgage Notes were subject to no offsets, and was the sole owner and holder ofclaims, each UBS Trust Mortgage Loan; and (B) the Depositor has full right and authority to sellliens, assign and transfer the UBS Trust Mortgage Loansmortgage, exclusive of the servicing rights pertaining theretopledge, charge, security interest, defenses or counterclaims.
(b) The Depositor hereby makes To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of a representation or warranty of the Seller under the Sale Agreement, the only right or remedy of the Trustee, for the NIM Insurer or of any Certificateholder shall be the Trustee's own benefit and right to enforce the benefit obligations of the Certificateholders, Seller under any applicable representation or warranty made by it. The Trustee acknowledges that the Depositor shall have no obligation or liability with respect to each Xxxxxx Trust Mortgage Loan only, the representations and warranties shown on Schedule II hereto, as any breach of the Closing Date any representation or such other date specified in the particular representation and warranty, subject warranty with respect to the exceptions set forth on Schedule III hereto Mortgage Loans (the headings except as set forth in Schedule II hereto with respect to each representation and warranty being for convenience of reference only and in no way limiting, expanding or otherwise affecting the scope or subject matter thereofSection 2.03(a)(v). Except as expressly provided in Section 2.04(a), the Depositor does not make ) under any representations or warranties regarding the UBS Trust Mortgage Loanscircumstances.
(c) The representations, warranties and covenants of the Depositor set forth in or made pursuant to Section 2.04(a) and Section 2.04(b) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any the Depositor, the Servicer, the NIM Insurer, or the Trustee of a breach of any of such representationsrepresentations and warranties set forth in the Sale Agreement that adversely and materially affects the value of the related Mortgage Loan, warranties and covenantsprepayment charges or the interests of the Certificateholders, the party discovering such breach shall give prompt written notice thereof to the other parties.. Within 90 days of the discovery of a breach of any representation or warranty given to the Trustee by the Depositor, the Seller and assigned to the Trustee, the Depositor, or the Seller shall either (a) cure such breach in all material respects, (b) repurchase such Mortgage Loan or any property acquired in respect thereof from the Trustee at the Purchase Price or (c) within the two year period following the Closing Date, substitute a Replacement Mortgage Loan for the affected Mortgage Loan. In the event of discovery of a breach of any representation and warranty of the Seller or the Depositor, the Trustee shall enforce its rights under the Sale Agreement or thereunder for the benefit of Certificateholders and the NIM Insurer. If a breach of the representations and warranties set forth in the Sale Agreement hereof exists solely due to the unenforceability of a prepayment charge, the Trustee shall notify the NIM Insurer thereof and not seek to enforce the repurchase remedy provided for herein unless directed in writing to do so by the NIM Insurer. In the event of a breach of the representations and warranties with respect to the Mortgage Loans set forth in a Sale Agreement, the Trustee shall at the request of the NIM Insurer enforce the right of the Trust Fund and the NIM Insurer to be indemnified for such breach of representation and warranty. In the event that such breach relates solely to the unenforceability of a prepayment charge, amounts received in respect of such indemnity up to the amount of such prepayment charge shall be distributed pursuant to
Appears in 1 contract
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, represents and warrants and covenants to the TrusteeSecurities Administrator, for its own benefit the Trustee and the benefit of the Certificateholders, and to the Master Servicer and the Special ServicerNIMs Insurer as follows, as of the Closing Date, thatdate hereof:
(i) The Depositor is duly organized and is validly existing as a corporation duly organized, validly existing and in good standing under the laws of the State of DelawareDelaware and has full power and authority (corporate and other) 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 and the Sale Agreement.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full corporate power and authority to execute, deliver and perform, and to enter into and consummate all the transactions contemplated by by, this Agreement, Agreement and the Sale Agreement and has duly authorized authorized, by all necessary corporate action on its part, the execution, delivery and performance of this Agreement and the Sale Agreement, ; and has duly executed this Agreement and delivered this Agreement.
(iv) This the Sale Agreement, assuming the due authorization, execution and delivery hereof by each of the other parties hereto, constitutes a validlegal, legal valid and binding obligation of the Depositor, enforceable against the Depositor in accordance with the terms hereofits terms, subject subject, as to enforceability, to (Ai) applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally, generally and (Bii) general principles of equity, regardless of whether such enforcement is considered sought in a proceeding in equity or at law.
(viii) The Depositor is not in violation of, and its execution and delivery of this Agreement and its performance the Sale Agreement by the Depositor, the consummation of the transactions contemplated by this Agreement and the Sale Agreement, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Depositor and will not (A) result in a material breach of any term or provision of the charter or by-laws of the Depositor or (B) materially conflict with, result in a violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Depositor is a party or by which it may be bound or (C) constitute a material violation of any statute, order or regulation applicable to the Depositor of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Depositor; and the Depositor is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Depositor's ability to perform or meet any of its obligations under this Agreement.
(iv) No litigation is pending, or, to the best of the Depositor's knowledge, threatened, against the Depositor that would materially and adversely affect the execution, delivery or enforceability of this Agreement will not constitute a violation of, any law, any order and the Sale Agreement or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Depositor's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Depositor to perform its obligations under this Agreement or and the financial condition of Sale Agreement in accordance with the Depositorterms hereof.
(viv) The transfer No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Depositor of, or compliance by the Depositor with, this Agreement and the Sale Agreement or the consummation of the Trust Mortgage Loans to the Trustee as transactions contemplated herein requires no regulatory hereby, or if any such consent, approval, other than any such approvals as have been obtainedauthorization or order is required, and is not subject to any bulk transfer or similar law in effect in any applicable jurisdiction.
(vii) the Depositor has obtained the same. The Depositor is not transferring the Trust Mortgage Loans hereby represents and warrants to the Trustee with any intent respect to hinder, delay or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left with unreasonably small assets or capital with which to engage in and conduct its business.
(x) The Depositor 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.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xii) No litigation is pending or, to the best of the Depositor's knowledge, threatened against the Depositor that, if determined adversely to the Depositor, would prohibit the Depositor from entering into this Agreement or that, in the Depositor's good faith and reasonable judgment, is likely to materially and adversely affect either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(xiii) Except for any actions that are the express responsibility of another party hereunder or under the each Mortgage Loan Purchase Agreements, and further except for actions that the Depositor is expressly permitted to complete subsequent to as of the Closing Date, the Depositor has taken all actions required under applicable law to effectuate and following the transfer of the Trust Mortgage Loans by the Depositor to the Trustee.
(xiv) Immediately prior to the transfer of the UBS Trust Mortgage Loans to it by the Trust pursuant to this Agreement (and assuming that the UBS Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Trust Mortgage LoanSeller, free and clear of all liens, claims, encumbrances and other interests), (A) the Depositor had good title to the Mortgage Loans and marketable title tothe Mortgage Notes were subject to no offsets, and was the sole owner and holder ofclaims, each UBS Trust Mortgage Loan; and (B) the Depositor has full right and authority to sellliens, assign and transfer the UBS Trust Mortgage Loansmortgage, exclusive of the servicing rights pertaining theretopledge, charge, security interest, defenses or counterclaims.
(b) The Depositor hereby makes to the Trustee, for the Trustee's own benefit representations and the benefit warranties of the Certificateholders, each Transferor with respect to each Xxxxxx Trust the related Mortgage Loan onlyLoans in the applicable Transfer Agreement, which have been assigned to the representations and warranties shown on Schedule II heretoTrustee hereunder, were made as of the Closing Date or such other date specified in the particular applicable Transfer Agreement (or underlying agreement, if such Transfer Agreement is in the form of an assignment of a prior agreement). To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of both (i) a representation or warranty of the applicable Transferor under the applicable Transfer Agreement and warranty(ii) a representation or warranty of the Seller under the Sale Agreement, subject the only right or remedy of the Trustee, the NIMs Insurer or of any Certificateholder shall be the Trustee's right to enforce the obligations of the applicable Transferor under any applicable representation or warranty made by it. The Trustee acknowledges that the Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the exceptions set forth on Schedule III hereto Mortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the applicable Transferor in the applicable Transfer Agreement, without regard to whether such Transferor fulfills its contractual obligations in respect of such representation or warranty. The Trustee further acknowledges that the Depositor shall have no obligation or liability with respect to any breach of any representation or warranty with respect to the Mortgage Loans (the headings except as set forth in Schedule II hereto with respect to each representation and warranty being for convenience of reference only and in no way limiting, expanding or otherwise affecting the scope or subject matter thereof). Except as expressly provided in Section 2.04(a), the Depositor does not make 2.03(a)(v) under any representations or warranties regarding the UBS Trust Mortgage Loanscircumstances.
(c) The representations, warranties and covenants of the Depositor set forth in or made pursuant to Section 2.04(a) and Section 2.04(b) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any the Depositor, the Securities Administrator, the NIMs Insurer, or the Trustee of a breach of any of such representations, representations and warranties that adversely and covenantsmaterially affects the value of the related Mortgage Loan, the party discovering such breach shall give prompt written notice thereof to the other parties. Within 90 days of the discovery of a breach of any representation or warranty given to the Trustee by the Depositor, any Transferor, the Seller and assigned to the Trustee, the Depositor, such Transferor or the Seller, as applicable, shall either (a) cure such breach in all material respects, (b) repurchase such Mortgage Loan or any property acquired in respect thereof from the Trustee at the Purchase Price or (c) within the two year period following the Closing Date, substitute a Replacement Mortgage Loan for the affected Mortgage Loan. In the event of discovery of a breach of any representation and warranty of any Transferor or the Depositor, the Trustee shall enforce its rights under the applicable Transfer Agreement and the Sale Agreement for the benefit of Certificateholders and the NIMs Insurer. If a breach of the representations and warranties set forth in Section 7.02 of the Option One Mortgage Corporation Transfer Agreement or Section 3.02 of the Xxxxx Fargo Home Mortgage, Inc. Transfer Agreement exists solely due to the unenforceability of a prepayment charge, the Trustee shall not seek to enforce the repurchase remedy provided for herein unless directed in writing to do so by the NIMs Insurer. In the event of a breach of the representations and warranties with respect to the Mortgage Loans set forth in a Transfer Agreement or a Servicing Agreement, the Trustee shall at the request of the NIMs Insurer enforce the right of the Trust Fund and the NIMs Insurer to be indemnified for such breach of representation and warranty. In the event that such breach relates solely to the unenforceability of a prepayment charge, amounts received in respect of such indemnity up to the amount of such prepayment charge shall be distributed pursuant to Section 4.01(b)(i)(B). As provided in the Sale Agreement, if any Transferor substitutes for a Mortgage Loan for which there is a breach of any representations and warranties in the related Transfer Agreement which adversely and materially affects the value of such Mortgage Loan and such substitute mortgage loan is not a Replacement Mortgage Loan, under the terms of the Sale Agreement, the Seller will, in exchange for such substitute Mortgage Loan, (i) provide the applicable Purchase Price for the affected Mortgage Loan or (ii) within two years of the Closing Date, substitute such affected Mortgage Loan with a Replacement Mortgage Loan. Any such substitution shall not be effected prior to the additional delivery to the Securities Administrator of a Request for Release substantially in the form of Exhibit I and shall not be effected unless it is within two years of the Startup Date. The Seller indemnifies and holds the Trust Fund, the Securities Administrator, the Trustee, the Depositor, the PMI Insurer, the NIMs Insurer and each Certificateholder harmless against any and all taxes, claims, losses, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, fees and expenses that the Trust Fund, the Trustee, the Securities Administrator, the Depositor, the PMI Insurer, the NIMs Insurer and any Certificateholder may sustain in connection with any actions of the Seller relating to a repurchase of a Mortgage Loan other than in compliance with the terms of this Section 2.03 and the Mortgage Loan Sale Agreement, to the extent that any such action causes (i) any federal or state tax to be imposed on the Trust Fund, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup date" under Section 860(d)(1) of the Code, or (ii) either REMIC created hereunder to fail to qualify as a REMIC at any time that any Certificate is outstanding. With respect to any Mortgage Loan repurchased by the Depositor pursuant to this Agreement, by the Seller pursuant to the Sale Agreement or by any Transferor pursuant to the applicable Transfer Agreement, the principal portion of the funds received by the Securities Administrator in respect of such repurchase of a Mortgage Loan will be considered a Principal Prepayment and shall be deposited in the Certificate Account pursuant to Section 3.05. The Trustee, upon receipt of the full amount of the Purchase Price for a Deleted Mortgage Loan, or upon receipt of the Mortgage File for a Replacement Mortgage Loan substituted for a Deleted Mortgage Loan, shall release or cause to be released and reassign to the Depositor, the Seller or the applicable Transferor, as applicable, the related Mortgage File for the Deleted Mortgage Loan and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation or warranty, as shall be necessary to vest in such party or its designee or assignee title to any Deleted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Securities Administrator (or its custodian), and neither the Trustee nor the Securities Administrator shall have any further responsibility with respect to the Mortgage File relating to such Deleted Mortgage Loan. With respect to each Replacement Mortgage Loan to be delivered to the Trustee (or its custodian) pursuant to the terms of this Article II in exchange for a Deleted Mortgage Loan: (i) the Depositor, the applicable Transferor or the Seller, as applicable, must deliver to the Custodian the Mortgage File for the Replacement Mortgage Loan containing the documents set forth in Section 2.01 along with a written certification certifying as to the delivery of such Mortgage File and containing the granting language set forth in Section 2.01; and (ii) the Depositor will be deemed to have made, with respect to such Replacement Mortgage Loan, each of the representations and warranties made by it with respect to the related Deleted Mortgage Loan. The Securities Administrator shall review the Mortgage File with respect to each Replacement Mortgage Loan and certify to the NIMs Insurer and the Depositor that all documents required by Section 2.01 have been executed and received. As soon as practicable after the delivery of any Replacement Mortgage Loan hereunder, the Trustee, at the expense of the Depositor and at the direction and with the cooperation of the applicable Servicer, shall cause the Assignment of Mortgage to be recorded by such Servicer if required pursuant to Section 2.01. For any month in which the Seller substitutes one or more Replacement Mortgage Loans for one or more Deleted Mortgage Loans, the Seller will determine the amount (if any) by which the aggregate principal balance of all such Replacement Mortgage Loans as of the date of substitution and the aggregate prepayment penalties with respect to such Replacement Mortgage Loans is less than the aggregate Stated Principal Balance (after application of the principal portion of the Scheduled Payment due in the month of substitution) and aggregate prepayment penalties of all such Deleted Mortgage Loans. An amount equal to the aggregate of the deficiencies described in the preceding sentence (such amount, the "Substitution Adjustment Amount") shall be deposited into the Certificate Account by the Seller on the Determination Date for the Distribution Date relating to the Prepayment Period during which the related Mortgage Loan became required to be purchased or replaced hereunder. Notwithstanding any other provision of this Agreement, the right to substitute Mortgage Loans pursuant to this Article II shall be subject to the additional limitations that no substitution of a Replacement Mortgage Loan for a Deleted Mortgage Loan shall be made unless the Securities Administrator and the NIMs Insurer have received an Opinion of Counsel (at the expense of the party seeking to make the substitution) that, under current law, such substitution will not (A) affect adversely the status of any REMIC established hereunder as a REMIC, or of the related "regular interests" as "regular interests" in any such REMIC, or (B) cause any such REMIC to engage in a "prohibited transaction" or prohibited contribution pursuant to the REMIC Provisions. The Securities Administrator shall cause the Mortgage Loan Schedule to be amended in accordance with the terms of this Agreement.
(d) It is understood and agreed that the representations and warranties (i) set forth in Section 2.03, (ii) of the Seller and the Depositor set forth in the Sale Agreement and assigned to the Trustee by the Depositor hereunder and (iii) of each Transferor, assigned by the Seller to the Depositor pursuant to the Sale Agreement and assigned to the Trustee by the Depositor hereunder shall each survive delivery of the Mortgage Files and the Assignment of Mortgage of each Mortgage Loan to the Securities Administrator and shall continue throughout the term of this Agreement.
Appears in 1 contract
Samples: Trust Agreement (Merrill Lynch Mortgage Investors Inc)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, warrants and covenants to the Trustee, for its own benefit and the benefit of the Certificateholders, and to the Master Servicer and the Special Servicer, as of the Closing Date, that:
(i) The Depositor is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full power and authority to enter into and consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and delivery by each of the other parties hereto, constitutes a valid, legal and binding obligation of the Depositor, enforceable against the Depositor in accordance with the terms hereof, subject to (A) applicable bankruptcy, insolvency, reorganization, moratorium and other laws affecting the enforcement of creditors' rights generally, and (B) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law.
(v) The Depositor is not in violation of, and its execution and delivery of this Agreement and its performance and compliance with the terms of this Agreement will not constitute a violation of, any law, any order or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Depositor's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(vi) The transfer of the Trust Mortgage Loans to the Trustee as contemplated herein requires no regulatory approval, other than any such approvals as have been obtained, and is not subject to any bulk transfer or similar law in effect in any applicable jurisdiction.
(vii) The Depositor is not transferring the Trust Mortgage Loans to the Trustee with any intent to hinder, delay or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left with unreasonably small assets or capital with which to engage in and conduct its business.
(x) The Depositor 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.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xii) No litigation is pending or, to the best of the Depositor's knowledge, threatened against the Depositor that, if determined adversely to the Depositor, would prohibit the Depositor from entering into this Agreement or that, in the Depositor's good faith and reasonable judgment, is likely to materially and adversely affect either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(xiii) Except for any actions that are the express responsibility of another party hereunder or under the Mortgage Loan Purchase Agreements, and further except for actions that the Depositor is expressly permitted to complete subsequent to the Closing Date, the Depositor has taken all actions required under applicable law to effectuate the transfer of the Trust Mortgage Loans by the Depositor to the Trustee.
(xiv) Immediately prior to the transfer of the UBS Non-Lehman Trust Mortgage Loans to the Trust pursuant to this xx xxis Agreement (and assuming that the UBS related Unaffiliated Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Non-Lehman Trust Mortgage Loan, free and clear of all liensxxxxx, claims, encumbrances and other interests), (A) the Depositor had good and marketable title to, and was the sole owner and holder of, each UBS Non-Lehman Trust Mortgage Loan; , and (B) the Depositor has full xull right and authority to sell, assign and transfer the UBS each Non-Lehman Trust Mortgage LoansLoan, exclusive of the servicing servxxxxx rights pertaining thereto.
(b) The Depositor hereby makes to the Trustee, for the Trustee's own benefit and the benefit of the Certificateholders, with respect to each Xxxxxx Lehman Trust Mortgage Loan only, the representations and warranties anx xxxxanties shown on Schedule II hereto, as of the Closing Date or such other date specified in the particular representation and warranty, subject to the exceptions set forth on Schedule III hereto (the headings set forth in Schedule II hereto with respect to each representation and warranty being for convenience of reference only and in no way limiting, expanding or otherwise affecting the scope or subject matter thereof). Except as expressly provided in Section 2.04(a), the Depositor does not make any representations or warranties regarding the UBS Non-Lehman Trust Mortgage Loans.
(c) The representations, warranties and covenants of the Depositor set forth in or made pursuant to Section 2.04(a) and Section 2.04(b) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any breach of any of such representations, warranties and covenants, the party discovering such breach shall give prompt written notice thereof to the other parties.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (LB-UBS Commercial Mortgage Trust 2007-C6)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, warrants and covenants to the Trustee, for its own benefit and the benefit of the Certificateholders, and to the Master Servicer and the Special Servicer, as of the Closing Date, that:
(i) The Depositor is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full power and authority to enter into and consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and delivery by each of the other parties hereto, constitutes a valid, legal and binding obligation of the Depositor, enforceable against the Depositor in accordance with the terms hereof, subject to (A) applicable bankruptcy, insolvency, reorganization, moratorium and other laws affecting the enforcement of creditors' rights generally, and (B) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law.
(v) The Depositor is not in violation of, and its execution and delivery of this Agreement and its performance and compliance with the terms of this Agreement will not constitute a violation of, any law, any order or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Depositor's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(vi) The transfer of the Trust Mortgage Loans to the Trustee as contemplated herein requires no regulatory approval, other than any such approvals as have been obtained, and is not subject to any bulk transfer or similar law in effect in any applicable jurisdiction.
(vii) The Depositor is not transferring the Trust Mortgage Loans to the Trustee with any intent to hinder, delay or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left with unreasonably small assets or capital with which to engage in and conduct its business.
(x) The Depositor 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.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xii) No litigation is pending or, to the best of the Depositor's knowledge, threatened against the Depositor that, if determined adversely to the Depositor, would prohibit the Depositor from entering into this Agreement or that, in the Depositor's good faith and reasonable judgment, is likely to materially and adversely affect either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(xiii) Except for any actions that are the express responsibility of another party hereunder or under the Mortgage Loan Purchase Agreements, and further except for actions that the Depositor is expressly permitted to complete subsequent to the Closing Date, the Depositor has taken all actions required under applicable law to effectuate the transfer of the Trust Mortgage Loans by the Depositor to the Trustee.
(xiv) Immediately prior to the transfer of the UBS Trust Mortgage Loans to the Trust pursuant to this Agreement (and assuming that the UBS Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Trust Mortgage Loan, free and clear of all liens, claims, encumbrances and other interests), (A) the Depositor had good and marketable title to, and was the sole owner and holder of, each UBS Trust Mortgage Loan; , and (B) the Depositor has full right and authority to sell, assign and transfer the UBS Trust each Mortgage LoansLoan, exclusive of the servicing rights pertaining thereto.
(b) The Depositor hereby makes to the Trustee, for the Trustee's own benefit and the benefit of the Certificateholders, with respect to each Xxxxxx Trust Mortgage Loan only, the representations and warranties shown on Schedule II hereto, as of the Closing Date or such other date specified in the particular representation and warranty, subject to the exceptions set forth on Schedule III hereto (the headings set forth in Schedule II hereto with respect to each representation and warranty being for convenience of reference only and in no way limiting, expanding or otherwise affecting the scope or subject matter thereof). Except as expressly provided in Section 2.04(a), the Depositor does not make any representations or warranties regarding the UBS Trust Mortgage Loans.
(c) The representations, warranties and covenants of the Depositor set forth in or made pursuant to Section 2.04(a) and Section 2.04(b) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any breach of any of such representations, warranties and covenants, the party discovering such breach shall give prompt written notice thereof to the other parties.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (TIAA Seasoned Commercial Mortgage Trust 2007-C4)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, represents and warrants and covenants to the Trustee, for its own benefit and the benefit of the Certificateholders, and to the Master Servicer and the Special ServicerTrustee as follows, as of the Closing Date, that:date hereof
(i) The Depositor is duly organized and is validly existing as a corporation duly organized, validly existing and in good standing under the laws of the State of DelawareDelaware and has full power and authority (corporate and other) 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 and the Sale Agreement.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full corporate power and authority to execute, deliver and perform, and to enter into and consummate all the transactions contemplated by by, this Agreement, Agreement and the Sale Agreement and has duly authorized authorized, by all necessary corporate action on its part, the execution, delivery and performance of this Agreement and the Sale Agreement, ; and has duly executed this Agreement and delivered this Agreement.
(iv) This the Sale Agreement, assuming the due authorization, execution and delivery hereof by each of the other parties hereto, constitutes a validlegal, legal valid and binding obligation of the Depositor, enforceable against the Depositor in accordance with the terms hereofits terms, subject subject, as to enforceability, to (Ai) applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally, generally and (Bii) general principles of equity, regardless of whether such enforcement is considered sought in a proceeding in equity or at law.
(viii) The Depositor is not in violation of, and its execution and delivery of this Agreement and its performance the Sale Agreement by the Depositor, the consummation of the transactions contemplated by this Agreement and the Sale Agreement, and the fulfillment of or compliance with the terms hereof are in the ordinary course of this Agreement business of the Depositor and will not (A) result in a material breach of any term or provision of the charter or by-laws of the Depositor or (B) materially conflict with, result in a violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Depositor is a party or by which it may be bound or (C) constitute a material violation ofof any statute, any law, any order or decree regulation applicable to the Depositor of any court court, regulatory body, administrative agency or arbitergovernmental body having jurisdiction over the Depositor; and the Depositor is not in breach or violation of any material indenture or other material agreement or instrument, or any order, regulation or demand in violation of any federalstatute, state order or local regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or regulatory authority, which violation, in violation may materially impair the Depositor's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Depositor to perform or meet any of its obligations under this Agreement or the financial condition of the DepositorAgreement.
(vi) The transfer of the Trust Mortgage Loans to the Trustee as contemplated herein requires no regulatory approval, other than any such approvals as have been obtained, and is not subject to any bulk transfer or similar law in effect in any applicable jurisdiction.
(vii) The Depositor is not transferring the Trust Mortgage Loans to the Trustee with any intent to hinder, delay or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left with unreasonably small assets or capital with which to engage in and conduct its business.
(x) The Depositor 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.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xiiiv) No litigation is pending or, to the best of the Depositor's knowledge, threatened threatened, against the Depositor that, if determined adversely to the Depositor, that would prohibit the Depositor from entering into this Agreement or that, in the Depositor's good faith and reasonable judgment, is likely to materially and adversely affect either the execution, delivery or enforceability of this Agreement and the Sale Agreement or the ability of the Depositor to perform its obligations under this Agreement or and the financial condition of Sale Agreement in accordance with the Depositorterms hereof.
(xiiiv) 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 Depositor of, or compliance by the Depositor with, this Agreement and the Sale Agreement or the consummation of the transactions contemplated hereby, or if any actions that are such consent, approval, authorization or order is required, the express responsibility of another party hereunder or under Depositor has obtained the same. The Depositor hereby represents and warrants to the Trustee with respect to each Mortgage Loan Purchase Agreements, and further except for actions that the Depositor is expressly permitted to complete subsequent to as of the Closing Date, the Depositor has taken all actions required under applicable law to effectuate and following the transfer of the Trust Mortgage Loans by the Depositor to the Trustee.
(xiv) Immediately prior to the transfer of the UBS Trust Mortgage Loans to it by the Trust pursuant to this Agreement (and assuming that the UBS Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Trust Mortgage LoanSponsor, free and clear of all liens, claims, encumbrances and other interests), (A) the Depositor had good title to the Mortgage Loans and marketable title tothe Mortgage Notes were subject to no offsets, and was the sole owner and holder ofclaims, each UBS Trust liens, mortgage, pledge, charge, security interest, defenses or counterclaims.
(vi) Each Mortgage Loan; and (B) the Depositor Loan in Group One has full right and authority to sell, assign and transfer the UBS Trust Mortgage Loans, exclusive a Stated Principal Balance as of the servicing rights pertaining theretoCut-off Date that complies with the loan limitations of Xxxxxx Xxx and Xxxxxxx Mac as in effect on the Cut-off Date.
(b) The Depositor hereby makes To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of a representation or warranty of the TrusteeSponsor under the Sale Agreement, for the only right or remedy of the Trustee or of any Certificateholder shall be the Trustee's own benefit and right to enforce the benefit obligations of the Certificateholders, Sponsor under any applicable representation or warranty made by it. The Trustee acknowledges that the Depositor shall have no obligation or liability with respect to each Xxxxxx Trust Mortgage Loan only, the representations and warranties shown on Schedule II hereto, as any breach of the Closing Date any representation or such other date specified in the particular representation and warranty, subject warranty with respect to the exceptions set forth on Schedule III hereto Mortgage Loans (the headings except as set forth in Schedule II hereto with respect to each representation and warranty being for convenience of reference only and in no way limiting, expanding or otherwise affecting the scope or subject matter thereofSection 2.03(a)(v). Except as expressly provided in Section 2.04(a), the Depositor does not make ) under any representations or warranties regarding the UBS Trust Mortgage Loanscircumstances.
(c) The representations, warranties and covenants of the Depositor set forth in or made pursuant to Section 2.04(a) and Section 2.04(b) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any the Depositor, the Servicer, or the Trustee of a breach of any of such representationsrepresentations and warranties set forth in the Sale Agreement that adversely and materially affects the value of the related Mortgage Loan, warranties and covenantsprepayment charges or the interests of the Certificateholders, the party discovering such breach shall give prompt written notice thereof to the other parties. Within ninety (90) days of the discovery of a breach of any representation or warranty given to the Trustee by the Depositor, the Sponsor and assigned by the Depositor to the Trustee, the Depositor, or the Sponsor shall either (a) cure such breach in all material respects, (b) repurchase such Mortgage Loan or any property acquired in respect thereof from the Trustee at the Purchase Price or (c) within the two year period following the Closing Date, substitute a Replacement Mortgage Loan for the affected Mortgage Loan. In the event of discovery of a breach of any representation and warranty of the Sponsor or the Depositor, the Trustee shall enforce its rights under the Sale Agreement or thereunder for the benefit of Certificateholders. In the event of a breach of the representations and warranties with respect to the Mortgage Loans set forth in a Sale Agreement, the Trustee shall enforce the right of the Issuing Entity to be indemnified for such breach of representation and warranty. In the event that such breach relates solely to the unenforceability of a prepayment charge, amounts received in respect of such indemnity up to the amount of such prepayment charge shall be distributed pursuant to Section 4.04(b)(i)(B). As provided in the Sale Agreement, if the Sponsor substitutes for a Mortgage Loan for which there is a breach of any representations and warranties which adversely and materially affects the value of such Mortgage Loan and such substitute mortgage loan is not a Replacement Mortgage Loan, under the terms of the Sale Agreement, the Sponsor will, in exchange for such substitute Mortgage Loan, (i) provide the applicable Purchase Price for the affected Mortgage Loan or (ii) within two years of the Closing Date, substitute such affected Mortgage Loan with a Replacement Mortgage Loan. Any such substitution shall not be effected prior to the additional delivery to the Trustee of a Request for Release substantially in the form of Exhibit I and shall not be effected unless it is within two years of the Startup Day. As provided in the Sale Agreement, the Sponsor indemnifies and holds the Issuing Entity, the Trustee, the Depositor, the Servicer and each Certificateholder harmless against any and all taxes, claims, losses, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, fees and expenses that the Issuing Entity, the Trustee, the Depositor, the Servicer and any Certificateholder may sustain in connection with any actions of the Sponsor relating to a repurchase of a Mortgage Loan other than in compliance with the terms of this Section 2.03 and the Sale Agreement, to the extent that any such action causes (i) any federal or state tax to be imposed on the Issuing Entity or any REMIC provided for herein, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup day" under Section 860G(d)(1) of the Code, or (ii) any REMIC created hereunder to fail to qualify as a REMIC at any time that any Certificate is outstanding. With respect to any Mortgage Loan repurchased by the Depositor pursuant to this Agreement or by the Sponsor pursuant to the Sale Agreement, the principal portion of the funds received by the Servicer in respect of such repurchase of a Mortgage Loan will be considered a Principal Prepayment and shall be deposited by the Servicer in the Certificate Account pursuant to Section 3.05. The Trustee, upon receipt of the full amount of the Purchase Price for a Deleted Mortgage Loan, or upon receipt of the Mortgage File for a Replacement Mortgage Loan substituted for a Deleted Mortgage Loan, shall release or cause to be released and reassign to the Depositor or the Sponsor, as applicable, the related Mortgage File for the Deleted Mortgage Loan and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation or warranty, as shall be necessary to vest in such party or its designee or assignee title to any Deleted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Trustee, and the Trustee shall not have any further responsibility with respect to the Mortgage File relating to such Deleted Mortgage Loan. With respect to each Replacement Mortgage Loan to be delivered to the Trustee pursuant to the terms of this Article II in exchange for a Deleted Mortgage Loan: (i) the Depositor or the Sponsor, as applicable, must deliver to the Trustee the Mortgage File for the Replacement Mortgage Loan containing the documents set forth in Section 2.01 along with a written certification certifying as to the delivery of 66 such Mortgage File and containing the granting language set forth in the first sentence of Section 2.01; and (ii) the Depositor will be deemed to have made, with respect to such Replacement Mortgage Loan, each of the representations and warranties made by it with respect to the related Deleted Mortgage Loan. The Trustee shall review the Mortgage File with respect to each Replacement Mortgage Loan and certify to the Depositor that all documents required by Section 2.01 have been executed and received. For any month in which the Sponsor substitutes one or more Replacement Mortgage Loans for one or more Deleted Mortgage Loans, the Sponsor will determine the amount (if any) by which the aggregate principal balance of all such Replacement Mortgage Loans as of the date of substitution and the aggregate prepayment charges with respect to such Replacement Mortgage Loans is less than the aggregate Stated Principal Balance (after application of the principal portion of the Scheduled Payment due in the month of substitution) and aggregate prepayment charges of all such Deleted Mortgage Loans. An amount equal to the aggregate of the deficiencies described in the preceding sentence (such amount, the "Substitution Adjustment Amount") shall be delivered by the Sponsor to the Servicer for deposit into the Collection Account on the Determination Date for the Distribution Date relating to the Prepayment Period during which the related Mortgage Loan became required to be purchased or replaced hereunder. The Sponsor shall give or cause to be given written notice to the Certificateholders that such substitution has taken place, shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Replacement Mortgage Loan or Replacement Mortgage Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the Trustee. Upon such substitution by the Sponsor, such Replacement Mortgage Loan or Replacement Mortgage Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and the Sale Agreement, including all applicable representations and warranties thereof included in the Sale Agreement as of the date of substitution. In addition, the Sponsor shall obtain at its own expense and deliver to the Trustee an Opinion of Counsel addressed to the Trustee to the effect that such substitution will not (a) cause any federal tax to be imposed on the Issuing Entity or any REMIC provided for herein, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup day" under Section 860G(d)(1) of the Code or (b) adversely affect the status of any REMIC provided for herein as a REMIC. If any such Opinion of Counsel can not be delivered, then such substitution may only be effected at such time as the required Opinion of Counsel can be given.
(d) It is understood and agreed that the representations, warranties and indemnification (i) set forth in this Section 2.03 and (ii) of the Sponsor and the Depositor set forth in the Sale Agreement and assigned to the Trustee by the Depositor hereunder shall each survive delivery of the Mortgage Files and the Assignment of Mortgage of each Mortgage Loan to the Trustee and shall continue throughout the term of this Agreement.
Appears in 1 contract
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, warrants and covenants to the Trustee, for its own benefit and the benefit of the Certificateholders, and to the Fiscal Agent, the Master Servicer and the Special Servicer, as of the Closing Date, that:
(i) The Depositor is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full power and authority to enter into and consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and delivery by each of the other parties hereto, constitutes a valid, legal and binding obligation of the Depositor, enforceable against the Depositor in accordance with the terms hereof, subject to (A) applicable bankruptcy, insolvency, reorganization, moratorium and other laws affecting the enforcement of creditors' rights generally, and (B) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law.
(v) The Depositor is not in violation of, and its execution and delivery of this Agreement and its performance and compliance with the terms of this Agreement will not constitute a violation of, any law, any order or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Depositor's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(vi) The transfer of the Trust Mortgage Loans to the Trustee as contemplated herein requires no regulatory approval, other than any such approvals as have been obtained, and is not subject to any bulk transfer or similar law in effect in any applicable jurisdiction.
(vii) The Depositor is not transferring the Trust Mortgage Loans to the Trustee with any intent to hinder, delay or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a2.01(b).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a2.01(b), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left with unreasonably small assets or capital with which to engage in and conduct its business.
(x) The Depositor 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.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xii) No litigation is pending or, to the best of the Depositor's knowledge, threatened against the Depositor that, if determined adversely to the Depositor, would prohibit the Depositor from entering into this Agreement or that, in the Depositor's good faith and reasonable judgment, is likely to materially and adversely affect either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(xiii) Except for any actions that are the express responsibility of another party hereunder or under the Mortgage Loan Purchase Agreements, and further except for actions that the Depositor is expressly permitted to complete subsequent to the Closing Date, the Depositor has taken all actions required under applicable law to effectuate the transfer of the Trust Mortgage Loans by the Depositor to the Trustee.
(xiv) Immediately prior to the transfer of the UBS Trust Mortgage Loans to the Trust pursuant to this Agreement (and assuming that the UBS Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Trust Mortgage Loan, free and clear of all liens, claims, encumbrances and other interests), (A) the Depositor had good and marketable title to, and was the sole owner and holder of, each UBS Trust Mortgage Loan; and (B) the Depositor has full right and authority to sell, assign and transfer the UBS Trust Mortgage Loans, exclusive of the servicing rights pertaining thereto.
(b) The Depositor hereby makes represents and warrants to the Trustee, for the Trustee's its own benefit and the benefit of the Certificateholders, with respect to each Xxxxxx Trust Mortgage Loan only, the representations and warranties shown on Schedule II heretoLoan, as of the Closing Date or such other date specified in the particular representation and warranty, subject to the exceptions set forth on Schedule III hereto that (the headings set forth in Schedule II hereto this Section 2.04(b) with respect to each representation and warranty being for convenience of reference only and in no way limiting, expanding or otherwise affecting the scope or subject matter thereof). Except as expressly provided in Section 2.04(a), the Depositor does not make any representations or warranties regarding the UBS Trust Mortgage Loans.
(c) The representations, warranties and covenants of the Depositor set forth in or made pursuant to Section 2.04(a) and Section 2.04(b) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any breach of any of such representations, warranties and covenants, the party discovering such breach shall give prompt written notice thereof to the other parties.):
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Structured Asset Securities Corp)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, represents and warrants and covenants to the TrusteeServicer, for its own benefit the Trustee and the benefit of the Certificateholders, and to the Master Servicer and the Special ServicerNIMs Insurer as follows, as of the Closing Date, thatdate hereof:
(i) The Depositor is duly organized and is validly existing as a corporation duly organized, validly existing and in good standing under the laws of the State of DelawareDelaware and has full power and authority (corporate and other) 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 and the Sale Agreement.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full corporate power and authority to execute, deliver and perform, and to enter into and consummate all the transactions contemplated by by, this Agreement, Agreement and the Sale Agreement and has duly authorized authorized, by all necessary corporate action on its part, the execution, delivery and performance of this Agreement and the Sale Agreement, ; and has duly executed this Agreement and delivered this Agreement.
(iv) This the Sale Agreement, assuming the due authorization, execution and delivery hereof by each of the other parties hereto, constitutes a validlegal, legal valid and binding obligation of the Depositor, enforceable against the Depositor in accordance with the terms hereofits terms, subject subject, as to enforceability, to (Ai) applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally, generally and (Bii) general principles of equity, regardless of whether such enforcement is considered sought in a proceeding in equity or at law.
(viii) The Depositor is not in violation of, and its execution and delivery of this Agreement and its performance the Sale Agreement by the Depositor, the consummation of the transactions contemplated by this Agreement and the Sale Agreement, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Depositor and will not (A) result in a material breach of any term or provision of the charter or by-laws of the Depositor or (B) materially conflict with, result in a violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Depositor is a party or by which it may be bound or (C) constitute a material violation of any statute, order or regulation applicable to the Depositor of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Depositor; and the Depositor is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Depositor's ability to perform or meet any of its obligations under this Agreement.
(iv) No litigation is pending, or, to the best of the Depositor's knowledge, threatened, against the Depositor that would materially and adversely affect the execution, delivery or enforceability of this Agreement will not constitute a violation of, any law, any order and the Sale Agreement or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Depositor's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Depositor to perform its obligations under this Agreement or and the financial condition of Sale Agreement in accordance with the Depositorterms hereof.
(viv) The transfer No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Depositor of, or compliance by the Depositor with, this Agreement and the Sale Agreement or the consummation of the Trust Mortgage Loans to the Trustee as transactions contemplated herein requires no regulatory hereby, or if any such consent, approval, other than any such approvals as have been obtainedauthorization or order is required, and is not subject to any bulk transfer or similar law in effect in any applicable jurisdiction.
(vii) the Depositor has obtained the same. The Depositor is not transferring the Trust Mortgage Loans hereby represents and warrants to the Trustee with any intent respect to hinder, delay or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left with unreasonably small assets or capital with which to engage in and conduct its business.
(x) The Depositor 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.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xii) No litigation is pending or, to the best of the Depositor's knowledge, threatened against the Depositor that, if determined adversely to the Depositor, would prohibit the Depositor from entering into this Agreement or that, in the Depositor's good faith and reasonable judgment, is likely to materially and adversely affect either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(xiii) Except for any actions that are the express responsibility of another party hereunder or under the each Mortgage Loan Purchase Agreements, and further except for actions that the Depositor is expressly permitted to complete subsequent to as of the Closing Date, the Depositor has taken all actions required under applicable law to effectuate and following the transfer of the Trust Mortgage Loans by the Depositor to the Trustee.
(xiv) Immediately prior to the transfer of the UBS Trust Mortgage Loans to it by the Trust pursuant to this Agreement (and assuming that the UBS Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Trust Mortgage LoanSeller, free and clear of all liens, claims, encumbrances and other interests), (A) the Depositor had good title to the Mortgage Loans and marketable title tothe Mortgage Notes were subject to no offsets, and was the sole owner and holder ofclaims, each UBS Trust Mortgage Loan; and (B) the Depositor has full right and authority to sellliens, assign and transfer the UBS Trust Mortgage Loansmortgage, exclusive of the servicing rights pertaining theretopledge, charge, security interest, defenses or counterclaims.
(b) The Depositor hereby makes representations and warranties of the Transferor with respect to the Mortgage Loans contained in the Transfer Agreement were made as of the date specified in the Transfer Agreement and brought forward to the Closing Date pursuant to the Bring Down Letter. The representations and warranties of the Transferor with respect to the Mortgage Loans contained in the Bring Down Letter were made as of the Closing Date. The representations and warranties of the Seller with respect to the Mortgage Loans contained in the Sale Agreement were made as of the Closing Date. To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of both (i) a representation or warranty of the Transferor under the Transfer Agreement and (ii) a representation or warranty of the Seller under the Sale Agreement, the only rights or remedies of the Trustee, for the NIMs Insurer or of any Certificateholder shall be first, the Trustee's own benefit and right to enforce the benefit obligations of the CertificateholdersTransferor under any applicable representation or warranty made by it and, only if the Transferor is unable or unwilling to fulfill its obligations to cure or repurchase such Mortgage Loan, such party may seek to enforce any rights it may have against the Seller under the Sale Agreement. The Trustee acknowledges that the Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Mortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the Transferor in the Transfer Agreement, without regard to whether the Transferor fulfills its contractual obligations in respect of such representation or warranty. The Trustee also acknowledges that the Seller shall have no obligation or liability with respect to any breach of a representation or warranty made solely by the Transferor with respect to the Mortgage Loans, without regard to whether the Transferor fulfills its contractual obligations in respect of such representation or warranty. The Trustee further acknowledges that the Depositor shall have no obligation or liability with respect to any breach of any representation or warranty with respect to the Mortgage Loans (except as set forth in Section 2.03(a)(v)) under any circumstances. In addition to the representations and warranties of the Transferor in the Transfer Agreement that were brought forward to the Closing Date pursuant to the Bring Down Letter, with respect to each Xxxxxx Trust Mortgage Loan only, the representations and warranties shown on Schedule II hereto, as of the Closing Date or such other date specified in the particular representation and warranty, subject to the exceptions set forth on Schedule III hereto (the headings set forth in Schedule II hereto with respect to each representation and warranty being for convenience of reference only and in no way limiting, expanding or otherwise affecting the scope or subject matter thereof). Except as expressly provided in Section 2.04(a), the Depositor does not make any representations or warranties regarding the UBS Trust Mortgage Loans.
(c) The representations, warranties and covenants of the Depositor set forth in or made pursuant to Section 2.04(a) and Section 2.04(b) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any breach of any of such representations, warranties and covenants, the party discovering such breach shall give prompt written notice thereof to the other parties.each
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Inc)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, represents and warrants and covenants to the TrusteeServicer, for its own benefit the Trustee and the benefit of the Certificateholders, and to the Master Servicer and the Special ServicerNIMs Insurer as follows, as of the Closing Date, thatdate hereof:
(i) The Depositor is duly organized and is validly existing as a corporation duly organized, validly existing and in good standing under the laws of the State of DelawareDelaware and has full power and authority (corporate and other) 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 and the Sale Agreement.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full corporate power and authority to execute, deliver and perform, and to enter into and consummate all the transactions contemplated by by, this Agreement, Agreement and the Sale Agreement and has duly authorized authorized, by all necessary corporate action on its part, the execution, delivery and performance of this Agreement and the Sale Agreement, ; and has duly executed this Agreement and delivered this Agreement.
(iv) This the Sale Agreement, assuming the due authorization, execution and delivery hereof by each of the other parties hereto, constitutes a validlegal, legal valid and binding obligation of the Depositor, enforceable against the Depositor in accordance with the terms hereofits terms, subject subject, as to enforceability, to (Ai) applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally, generally and (Bii) general principles of equity, regardless of whether such enforcement is considered sought in a proceeding in equity or at law.
(viii) The Depositor is not in violation of, and its execution and delivery of this Agreement and its performance the Sale Agreement by the Depositor, the consummation of the transactions contemplated by this Agreement and the Sale Agreement, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Depositor and will not (A) result in a material breach of any term or provision of the charter or by-laws of the Depositor or (B) materially conflict with, result in a violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Depositor is a party or by which it may be bound or (C) constitute a material violation of any statute, order or regulation applicable to the Depositor of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Depositor; and the Depositor is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Depositor's ability to perform or meet any of its obligations under this Agreement.
(iv) No litigation is pending, or, to the best of the Depositor's knowledge, threatened, against the Depositor that would materially and adversely affect the execution, delivery or enforceability of this Agreement will not constitute a violation of, any law, any order and the Sale Agreement or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Depositor's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Depositor to perform its obligations under this Agreement or and the financial condition of Sale Agreement in accordance with the Depositorterms hereof.
(viv) The transfer No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Depositor of, or compliance by the Depositor with, this Agreement and the Sale Agreement or the consummation of the Trust Mortgage Loans to the Trustee as transactions contemplated herein requires no regulatory hereby, or if any such consent, approval, other than any such approvals as have been obtainedauthorization or order is required, and is not subject to any bulk transfer or similar law in effect in any applicable jurisdiction.
(vii) the Depositor has obtained the same. The Depositor is not transferring the Trust Mortgage Loans hereby represents and warrants to the Trustee with any intent respect to hinder, delay or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left with unreasonably small assets or capital with which to engage in and conduct its business.
(x) The Depositor 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.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xii) No litigation is pending or, to the best of the Depositor's knowledge, threatened against the Depositor that, if determined adversely to the Depositor, would prohibit the Depositor from entering into this Agreement or that, in the Depositor's good faith and reasonable judgment, is likely to materially and adversely affect either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(xiii) Except for any actions that are the express responsibility of another party hereunder or under the each Mortgage Loan Purchase Agreements, and further except for actions that the Depositor is expressly permitted to complete subsequent to as of the Closing Date, the Depositor has taken all actions required under applicable law to effectuate and following the transfer of the Trust Mortgage Loans by the Depositor to the Trustee.
(xiv) Immediately prior to the transfer of the UBS Trust Mortgage Loans to it by the Trust pursuant to this Agreement (and assuming that the UBS Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Trust Mortgage LoanSeller, free and clear of all liens, claims, encumbrances and other interests), (A) the Depositor had good title to the Mortgage Loans and marketable title tothe Mortgage Notes were subject to no offsets, and was the sole owner and holder ofclaims, each UBS Trust Mortgage Loan; and (B) the Depositor has full right and authority to sellliens, assign and transfer the UBS Trust Mortgage Loansmortgage, exclusive of the servicing rights pertaining theretopledge, charge, security interest, defenses or counterclaims.
(b) The Depositor hereby makes to the Trustee, for the Trustee's own benefit representations and the benefit warranties of the Certificateholders, each Transferor with respect to each Xxxxxx Trust the related Mortgage Loan onlyLoans in the applicable Transfer Agreement, which have been assigned to the representations and warranties shown on Schedule II heretoTrustee hereunder, were made as of the Closing Date or such other date specified in the particular applicable Transfer Agreement (or underlying agreement, if such Transfer Agreement is in the form of an assignment of a prior agreement). To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of both (i) a representation or warranty of the applicable Transferor under the applicable Transfer Agreement and warranty(ii) a representation or warranty of the Seller under the Sale Agreement, subject the only right or remedy of the Trustee, the NIMs Insurer or of any Certificateholder shall be the Trustee's right to enforce the obligations of the applicable Transferor under any applicable representation or warranty made by it. The Trustee acknowledges that the Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the exceptions set forth on Schedule III hereto Mortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the applicable Transferor in the applicable Transfer Agreement, without regard to whether such Transferor fulfills its contractual obligations in respect of such representation or warranty. The Trustee further acknowledges that the Depositor shall have no obligation or liability with respect to any breach of any representation or warranty with respect to the Mortgage Loans (the headings except as set forth in Schedule II hereto with respect to each representation and warranty being for convenience of reference only and in no way limiting, expanding or otherwise affecting the scope or subject matter thereofSection 2.03(a)(v). Except as expressly provided in Section 2.04(a), the Depositor does not make ) under any representations or warranties regarding the UBS Trust Mortgage Loanscircumstances.
(c) The representations, warranties and covenants of the Depositor set forth in or made pursuant to Section 2.04(a) and Section 2.04(b) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any the Depositor, the NIMs Insurer, or the Trustee of a breach of any of such representationsrepresentations and warranties that adversely and materially affects the value of the related Mortgage Loan, warranties and covenantsprepayment charges or the interests of the Certificateholders, the party discovering such breach shall give prompt written notice thereof to the other parties. Within 90 days of the discovery of a breach of any representation or warranty given to the Trustee by the Depositor, any Transferor, the Seller and assigned to the Trustee, the Depositor, such Transferor or the Seller, as applicable, shall either (a) cure such breach in all material respects, (b) repurchase such Mortgage Loan or any property acquired in respect thereof from the Trustee at the Purchase Price or (c) within the two year period following the Closing Date, substitute a Replacement Mortgage Loan for the affected Mortgage Loan. In the event of discovery of a breach of any representation and warranty of any Transferor or the Depositor, the Trustee shall enforce its rights under the applicable Transfer Agreement and the Sale Agreement for the benefit of Certificateholders and the NIMs Insurer. If a breach of the representations and warranties set forth in the Transfer Agreement hereof exists solely due to the unenforceability of a prepayment charge, the Trustee shall notify the NIMs Insurer thereof and not seek to enforce the repurchase remedy provided for herein unless directed in writing to do so by the NIMs Insurer. In the event of a breach of the representations and warranties with respect to the Mortgage Loans set forth in a Transfer Agreement, the Trustee shall at the request of the NIMs Insurer enforce the right of the Trust Fund and the NIMs Insurer to be indemnified for such breach of representation and warranty. In the event that such breach relates solely to the unenforceability of a prepayment charge, amounts received in respect of such indemnity up to the amount of such prepayment charge shall be distributed pursuant to Section 4.04(b)(i)(B). As provided in the Sale Agreement, if the Transferor substitutes for a Mortgage Loan for which there is a breach of any representations and warranties in the related Transfer Agreement which adversely and materially affects the value of such Mortgage Loan and such substitute mortgage loan is not a Replacement Mortgage Loan, under the terms of the Sale Agreement, the Seller will, in exchange for such substitute Mortgage Loan, (i) provide the applicable Purchase Price for the affected Mortgage Loan or (ii) within two years of the Closing Date, substitute such affected Mortgage Loan with a Replacement Mortgage Loan. Any such substitution shall not be effected prior to the additional delivery to the Trustee of a Request for Release substantially in the form of Exhibit I and shall not be effected unless it is within two years of the Startup Date. As provided in the Sale Agreement, the Seller indemnifies and holds the Trust Fund, the Trustee, the Depositor, the NIMs Insurer, the Servicer and each Certificateholder harmless against any and all taxes, claims, losses, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, fees and expenses that the Trust Fund, the Trustee, the Depositor, the NIMs Insurer, the Servicer and any Certificateholder may sustain in connection with any actions of the Seller relating to a repurchase of a Mortgage Loan other than in compliance with the terms of this Section 2.03 and the Sale Agreement, to the extent that any such action causes (i) any federal or state tax to be imposed on the Trust Fund or any REMIC provided for herein, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup date" under Section 860(d)(1) of the Code, or (ii) any REMIC created hereunder to fail to qualify as a REMIC at any time that any Certificate is outstanding. With respect to any Mortgage Loan repurchased by the Depositor pursuant to this Agreement, by the Seller pursuant to the Sale Agreement or by any Transferor pursuant to the applicable Transfer Agreement, the principal portion of the funds received by the Trustee in respect of such repurchase of a Mortgage Loan will be considered a Principal Prepayment and shall be deposited in the Certificate Account pursuant to Section 3.05. The Trustee, upon receipt of the full amount of the Purchase Price for a Deleted Mortgage Loan, or upon receipt of the Mortgage File for a Replacement Mortgage Loan substituted for a Deleted Mortgage Loan, shall release or cause to be released and reassign to the Depositor, the Seller or the applicable Transferor, as applicable, the related Mortgage File for the Deleted Mortgage Loan and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation or warranty, as shall be necessary to vest in such party or its designee or assignee title to any Deleted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Trustee, and the Trustee shall not have any further responsibility with respect to the Mortgage File relating to such Deleted Mortgage Loan. With respect to each Replacement Mortgage Loan to be delivered to the Trustee pursuant to the terms of this Article II in exchange for a Deleted Mortgage Loan: (i) the Depositor, the applicable Transferor or the Seller, as applicable, must deliver to the Trustee the Mortgage File for the Replacement Mortgage Loan containing the documents set forth in Section 2.01 along with a written certification certifying as to the delivery of such Mortgage File and containing the granting language set forth in Section 2.01; and (ii) the Depositor will be deemed to have made, with respect to such Replacement Mortgage Loan, each of the representations and warranties made by it with respect to the related Deleted Mortgage Loan. The Trustee shall review the Mortgage File with respect to each Replacement Mortgage Loan and certify to the NIMs Insurer and the Depositor that all documents required by Section 2.01 have been executed and received. For any month in which the Seller substitutes one or more Replacement Mortgage Loans for one or more Deleted Mortgage Loans, the Seller will determine the amount (if any) by which the aggregate principal balance of all such Replacement Mortgage Loans as of the date of substitution and the aggregate prepayment penalties with respect to such Replacement Mortgage Loans is less than the aggregate Stated Principal Balance (after application of the principal portion of the Scheduled Payment due in the month of substitution) and aggregate prepayment penalties of all such Deleted Mortgage Loans. An amount equal to the aggregate of the deficiencies described in the preceding sentence (such amount, the "Substitution Adjustment Amount") shall be deposited into the Certificate Account by the Seller on the Determination Date for the Distribution Date relating to the Prepayment Period during which the related Mortgage Loan became required to be purchased or replaced hereunder. Notwithstanding any other provision of this Agreement, the right to substitute Mortgage Loans pursuant to this Article II shall be subject to the additional limitations that no substitution of a Replacement Mortgage Loan for a Deleted Mortgage Loan shall be made unless the Trustee and the NIMs Insurer have received an Opinion of Counsel (at the expense of the party seeking to make the substitution) that, under current law, such substitution will not (A) affect adversely the status of any REMIC established hereunder as a REMIC, or of the related "regular interests" as "regular interests" in any such REMIC, or (B) cause any such REMIC to engage in a "prohibited transaction" or prohibited contribution pursuant to the REMIC Provisions. The Trustee shall cause the Mortgage Loan Schedule to be amended in accordance with the terms of this Agreement. The Seller shall give or cause to be given written notice to the Certificateholders and the NIMS Insurer that such substitution has taken place, shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Replacement Mortgage Loan or Replacement Mortgage Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the NIMS Insurer and the Trustee. Upon such substitution by the Seller, such Replacement Mortgage Loan or Replacement Mortgage Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and the Sale Agreement, including all applicable representations and warranties thereof included in the Sale Agreement as of the date of substitution. In addition, the Seller shall obtain at its own expense and deliver to the Trustee and the NIMS Insurer an Opinion of Counsel to the effect that such substitution will not (a) cause any federal tax to be imposed on the Trust Fund or any REMIC provided for herein, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup date" under Section 860G(d)(1) of the Code or (b) adversely affect the status of any REMIC provided for herein as a REMIC. If any such Opinion of Counsel can not be delivered, then such substitution may only be effected at such time as the required Opinion of Counsel can be given.
(d) It is understood and agreed that the representations, warranties and indemnification (i) set forth in Section 2.03, (ii) of the Seller and the Depositor set forth in the Sale Agreement and assigned to the Trustee by the Depositor hereunder and (iii) of each Transferor, assigned by the Seller to the Depositor pursuant to the Sale Agreement and assigned to the Trustee by the Depositor hereunder shall each survive delivery of the Mortgage Files and the Assignment of Mortgage of each Mortgage Loan to the Trustee and shall continue throughout the term of this Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Inc)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, represents and warrants and covenants to the TrusteeServicer, for its own benefit the Trustee and the benefit of the Certificateholders, and to the Master Servicer and the Special ServicerNIMs Insurer as follows, as of the Closing Date, thatdate hereof:
(i) The Depositor is duly organized and is validly existing as a corporation duly organized, validly existing and in good standing under the laws of the State of DelawareDelaware and has full power and authority (corporate and other) 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 and the Sale Agreement.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full corporate power and authority to execute, deliver and perform, and to enter into and consummate all the transactions contemplated by by, this Agreement, Agreement and the Sale Agreement and has duly authorized authorized, by all necessary corporate action on its part, the execution, delivery and performance of this Agreement and the Sale Agreement, ; and has duly executed this Agreement and delivered this Agreement.
(iv) This the Sale Agreement, assuming the due authorization, execution and delivery hereof by each of the other parties hereto, constitutes a validlegal, legal valid and binding obligation of the Depositor, enforceable against the Depositor in accordance with the terms hereofits terms, subject subject, as to enforceability, to (Ai) applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally, generally and (Bii) general principles of equity, regardless of whether such enforcement is considered sought in a proceeding in equity or at law.
(viii) The Depositor is not in violation of, and its execution and delivery of this Agreement and its performance the Sale Agreement by the Depositor, the consummation of the transactions contemplated by this Agreement and the Sale Agreement, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Depositor and will not (A) result in a material breach of any term or provision of the charter or by-laws of the Depositor or (B) materially conflict with, result in a violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Depositor is a party or by which it may be bound or (C) constitute a material violation of any statute, order or regulation applicable to the Depositor of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Depositor; and the Depositor is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Depositor's ability to perform or meet any of its obligations under this Agreement.
(iv) No litigation is pending, or, to the best of the Depositor's knowledge, threatened, against the Depositor that would materially and adversely affect the execution, delivery or enforceability of this Agreement will not constitute a violation of, any law, any order and the Sale Agreement or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Depositor's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Depositor to perform its obligations under this Agreement or and the financial condition of Sale Agreement in accordance with the Depositorterms hereof.
(viv) The transfer No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Depositor of, or compliance by the Depositor with, this Agreement and the Sale Agreement or the consummation of the Trust Mortgage Loans to the Trustee as transactions contemplated herein requires no regulatory hereby, or if any such consent, approval, other than any such approvals as have been obtainedauthorization or order is required, and is not subject to any bulk transfer or similar law in effect in any applicable jurisdiction.
(vii) the Depositor has obtained the same. The Depositor is not transferring the Trust Mortgage Loans hereby represents and warrants to the Trustee with any intent respect to hinder, delay or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left with unreasonably small assets or capital with which to engage in and conduct its business.
(x) The Depositor 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.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xii) No litigation is pending or, to the best of the Depositor's knowledge, threatened against the Depositor that, if determined adversely to the Depositor, would prohibit the Depositor from entering into this Agreement or that, in the Depositor's good faith and reasonable judgment, is likely to materially and adversely affect either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(xiii) Except for any actions that are the express responsibility of another party hereunder or under the each Mortgage Loan Purchase Agreements, and further except for actions that the Depositor is expressly permitted to complete subsequent to as of the Closing Date, the Depositor has taken all actions required under applicable law to effectuate and following the transfer of the Trust Mortgage Loans by the Depositor to the Trustee.
(xiv) Immediately prior to the transfer of the UBS Trust Mortgage Loans to it by the Trust pursuant to this Agreement (and assuming that the UBS Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Trust Mortgage LoanSeller, free and clear of all liens, claims, encumbrances and other interests), (A) the Depositor had good title to the Mortgage Loans and marketable title tothe Mortgage Notes were subject to no offsets, and was the sole owner and holder ofclaims, each UBS Trust Mortgage Loan; and (B) the Depositor has full right and authority to sellliens, assign and transfer the UBS Trust Mortgage Loansmortgage, exclusive of the servicing rights pertaining theretopledge, charge, security interest, defenses or counterclaims.
(b) The Depositor hereby makes to the Trustee, for the Trustee's own benefit representations and the benefit warranties of the Certificateholders, Transferor with respect to each Xxxxxx Trust the Mortgage Loan only, Loans contained in the Transfer Agreement were made as of the date specified in the Transfer Agreement and brought forward to the Closing Date pursuant to the Bring Down Letter. The representations and warranties shown on Schedule II hereto, of the Transferor with respect to the Mortgage Loans contained in the Bring Down Letter were made as of the Closing Date or such other date specified in Date. The representations and warranties of the particular representation and warranty, subject to the exceptions set forth on Schedule III hereto (the headings set forth in Schedule II hereto Seller with respect to each the Mortgage Loans contained in the Sale Agreement were made as of the Closing Date. To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of both (i) a representation or warranty of the Transferor under the Transfer Agreement and (ii) a representation or warranty being for convenience of reference only and in no way limiting, expanding or otherwise affecting the scope or subject matter thereof). Except as expressly provided in Section 2.04(a)Seller under the Sale Agreement, the Depositor does not make any representations only right or warranties regarding the UBS Trust Mortgage Loans.
(c) The representations, warranties and covenants remedy of the Depositor set forth in Trustee, the NIMs Insurer or made pursuant of any Certificateholder shall be the Trustee's right to Section 2.04(a) and Section 2.04(b) shall survive enforce the execution and delivery of this Agreement and shall inure to the benefit obligations of the Persons for whose benefit they were Transferor under any applicable representation or warranty made for so long as by it. The Trustee acknowledges that the Trust Fund remains in existence. Upon discovery by any party hereto of Seller shall have no obligation or liability with respect to any breach of any of such representationsa representation or warranty made by it with respect to the Mortgage Loans if the fact, warranties and covenants, the party discovering condition or event constituting such breach shall give prompt written notice thereof to the other parties.also constitutes
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Trust Series 2004-Fm1)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, represents and warrants and covenants to the TrusteeServicer, for its own benefit the Trustee and the benefit of the Certificateholders, and to the Master Servicer and the Special ServicerNIMs Insurer as follows, as of the Closing Date, thatdate hereof:
(i) The Depositor is duly organized and is validly existing as a corporation duly organized, validly existing and in good standing under the laws of the State of DelawareDelaware and has full power and authority (corporate and other) 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 and the Sale Agreement.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full corporate power and authority to execute, deliver and perform, and to enter into and consummate all the transactions contemplated by by, this Agreement, Agreement and the Sale Agreement and has duly authorized authorized, by all necessary corporate action on its part, the execution, delivery and performance of this Agreement and the Sale Agreement, ; and has duly executed this Agreement and delivered this Agreement.
(iv) This the Sale Agreement, assuming the due authorization, execution and delivery hereof by each of the other parties hereto, constitutes a validlegal, legal valid and binding obligation of the Depositor, enforceable against the Depositor in accordance with the terms hereofits terms, subject subject, as to enforceability, to (Ai) applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally, generally and (Bii) general principles of equity, regardless of whether such enforcement is considered sought in a proceeding in equity or at law.
(viii) The Depositor is not in violation of, and its execution and delivery of this Agreement and its performance the Sale Agreement by the Depositor, the consummation of the transactions contemplated by this Agreement and the Sale Agreement, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Depositor and will not (A) result in a material breach of any term or provision of the charter or by-laws of the Depositor or (B) materially conflict with, result in a violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Depositor is a party or by which it may be bound or (C) constitute a material violation of any statute, order or regulation applicable to the Depositor of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Depositor; and the Depositor is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Depositor's ability to perform or meet any of its obligations under this Agreement.
(iv) No litigation is pending, or, to the best of the Depositor's knowledge, threatened, against the Depositor that would materially and adversely affect the execution, delivery or enforceability of this Agreement will not constitute a violation of, any law, any order and the Sale Agreement or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Depositor's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Depositor to perform its obligations under this Agreement or and the financial condition of Sale Agreement in accordance with the Depositorterms hereof.
(viv) The transfer No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Depositor of, or compliance by the Depositor with, this Agreement and the Sale Agreement or the consummation of the Trust Mortgage Loans to the Trustee as transactions contemplated herein requires no regulatory hereby, or if any such consent, approval, other than any such approvals as have been obtainedauthorization or order is required, and is not subject to any bulk transfer or similar law in effect in any applicable jurisdiction.
(vii) the Depositor has obtained the same. The Depositor is not transferring the Trust Mortgage Loans hereby represents and warrants to the Trustee with any intent respect to hinder, delay or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left with unreasonably small assets or capital with which to engage in and conduct its business.
(x) The Depositor 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.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xii) No litigation is pending or, to the best of the Depositor's knowledge, threatened against the Depositor that, if determined adversely to the Depositor, would prohibit the Depositor from entering into this Agreement or that, in the Depositor's good faith and reasonable judgment, is likely to materially and adversely affect either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(xiii) Except for any actions that are the express responsibility of another party hereunder or under the each Mortgage Loan Purchase Agreements, and further except for actions that the Depositor is expressly permitted to complete subsequent to as of the Closing Date, the Depositor has taken all actions required under applicable law to effectuate and following the transfer of the Trust Mortgage Loans by the Depositor to the Trustee.
(xiv) Immediately prior to the transfer of the UBS Trust Mortgage Loans to it by the Trust pursuant to this Agreement (and assuming that the UBS Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Trust Mortgage LoanSeller, free and clear of all liens, claims, encumbrances and other interests), (A) the Depositor had good title to the Mortgage Loans and marketable title tothe Mortgage Notes were subject to no offsets, and was the sole owner and holder ofclaims, each UBS Trust Mortgage Loan; and (B) the Depositor has full right and authority to sellliens, assign and transfer the UBS Trust Mortgage Loansmortgage, exclusive of the servicing rights pertaining theretopledge, charge, security interest, defenses or counterclaims.
(b) The Depositor hereby makes to the Trustee, for the Trustee's own benefit representations and the benefit warranties of the Certificateholders, each Transferor with respect to each Xxxxxx Trust the related Mortgage Loan onlyLoans in the applicable Transfer Agreement, which have been assigned to the representations and warranties shown on Schedule II heretoTrustee hereunder, were made as of the Closing Date or such other date specified in the particular applicable Transfer Agreement (or underlying agreement, if such Transfer Agreement is in the form of an assignment of a prior agreement). To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of both (i) a representation or warranty of the applicable Transferor under the applicable Transfer Agreement and warranty(ii) a representation or warranty of the Seller under the Sale Agreement, subject the only right or remedy of the Trustee, the NIMs Insurer or of any Certificateholder shall be the Trustee's right to enforce the obligations of the applicable Transferor under any applicable representation or warranty made by it. The Trustee acknowledges that the Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the exceptions set forth on Schedule III hereto Mortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the applicable Transferor in the applicable Transfer Agreement, without regard to whether such Transferor fulfills its contractual obligations in respect of such representation or warranty. The Trustee further acknowledges that the Depositor shall have no obligation or liability with respect to any breach of any representation or warranty with respect to the Mortgage Loans (the headings except as set forth in Schedule II hereto with respect to each representation and warranty being for convenience of reference only and in no way limiting, expanding or otherwise affecting the scope or subject matter thereofSection 2.03(a)(v). Except as expressly provided in Section 2.04(a), the Depositor does not make ) under any representations or warranties regarding the UBS Trust Mortgage Loanscircumstances.
(c) The representations, warranties and covenants of the Depositor set forth in or made pursuant to Section 2.04(a) and Section 2.04(b) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any the Depositor, the NIMs Insurer, or the Trustee of a breach of any of such representationsrepresentations and warranties that adversely and materially affects the value of the related Mortgage Loan, warranties and covenantsprepayment charges or the interests of the Certificateholders, the party discovering such breach shall give prompt written notice thereof to the other parties. Within 90 days of the discovery of such breach of any representation or warranty the applicable Transferor or the Seller, as applicable, shall either (a) cure such breach in all material respects, (b) repurchase such Mortgage Loan or any property acquired in respect thereof from the Trustee at the Purchase Price or (c) within the two year period following the Closing Date, substitute a Replacement Mortgage Loan for the affected Mortgage Loan. In the event of discovery of a breach of any representation and warranty of any Transferor, the Depositor or the Seller, the Trustee shall enforce its rights under the applicable Transfer Agreement and the Sale Agreement for the benefit of Certificateholders and the NIMs Insurer. If a breach of the representations and warranties set forth in a Transfer Agreement exists solely due to the unenforceability of a prepayment charge, the Trustee shall notify the NIMs Insurer thereof and not seek to enforce the repurchase remedy provided for herein unless directed in writing to do so by the NIMs Insurer. In the event of a breach of the representations and warranties with respect to the Mortgage Loans set forth in a Transfer Agreement, the Trustee shall at the request of the NIMs Insurer enforce the right of the Trust Fund and the NIMs Insurer to be indemnified for such breach of representation and warranty. In the event that such breach relates solely to the unenforceability of a prepayment charge, amounts received in respect of such indemnity up to the amount of such prepayment charge shall be distributed pursuant to Section 4.04(b)(i)(B). As provided in the Sale Agreement, if any Transferor substitutes for a Mortgage Loan for which there is a breach of any representations and warranties in the related Transfer Agreement which adversely and materially affects the value of such Mortgage Loan and such substitute mortgage loan is not a Replacement Mortgage Loan, under the terms of the Sale Agreement, the Seller will, in exchange for such substitute Mortgage Loan, (i) provide the applicable Purchase Price for the affected Mortgage Loan or (ii) within two years of the Closing Date, substitute such affected Mortgage Loan with a Replacement Mortgage Loan. Any such substitution shall not be effected prior to the additional delivery to the Trustee of a Request for Release substantially in the form of Exhibit I and shall not be effected unless it is within two years of the Startup Date. As provided in the Sale Agreement, the Seller indemnifies and holds the Trust Fund, the Trustee, the Depositor, the NIMs Insurer, the Servicer and each Certificateholder harmless against any and all taxes, claims, losses, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, fees and expenses that the Trust Fund, the Trustee, the Depositor, the NIMs Insurer, the Servicer and any Certificateholder may sustain in connection with any actions of the Seller relating to a repurchase of a Mortgage Loan other than in compliance with the terms of this Section 2.03 and the Sale Agreement, to the extent that any such action causes (i) any federal or state tax to be imposed on the Trust Fund or any REMIC provided for herein, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup date" under Section 860(d)(1) of the Code, or (ii) any REMIC created hereunder to fail to qualify as a REMIC at any time that any Certificate is outstanding. With respect to any Mortgage Loan repurchased by the Depositor pursuant to this Agreement, by the Seller pursuant to the Sale Agreement or by any Transferor pursuant to the applicable Transfer Agreement, the principal portion of the funds received by the Trustee in respect of such repurchase of a Mortgage Loan will be considered a Principal Prepayment and shall be deposited in the Certificate Account pursuant to Section 3.05. The Trustee, upon receipt of the full amount of the Purchase Price for a Deleted Mortgage Loan, or upon receipt of the Mortgage File for a Replacement Mortgage Loan substituted for a Deleted Mortgage Loan, shall release or cause to be released and reassign to the Depositor, the Seller or the applicable Transferor, as applicable, the related Mortgage File for the Deleted Mortgage Loan and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation or warranty, as shall be necessary to vest in such party or its designee or assignee title to any Deleted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Trustee, and the Trustee shall not have any further responsibility with respect to the Mortgage File relating to such Deleted Mortgage Loan. With respect to each Replacement Mortgage Loan to be delivered to the Trustee pursuant to the terms of this Article II in exchange for a Deleted Mortgage Loan: (i) the Depositor, the applicable Transferor or the Seller, as applicable, must deliver to the Trustee the Mortgage File for the Replacement Mortgage Loan containing the documents set forth in Section 2.01 along with a written certification certifying as to the delivery of such Mortgage File and containing the granting language set forth in Section 2.01; and (ii) the Depositor will be deemed to have made, with respect to such Replacement Mortgage Loan, each of the representations and warranties made by it with respect to the related Deleted Mortgage Loan. The Trustee shall review the Mortgage File with respect to each Replacement Mortgage Loan and certify to the NIMs Insurer and the Depositor that all documents required by Section 2.01 have been executed and received. For any month in which the Seller substitutes one or more Replacement Mortgage Loans for one or more Deleted Mortgage Loans, the Seller will determine the amount (if any) by which the aggregate principal balance of all such Replacement Mortgage Loans as of the date of substitution and the aggregate prepayment penalties with respect to such Replacement Mortgage Loans is less than the aggregate Stated Principal Balance (after application of the principal portion of the Scheduled Payment due in the month of substitution) and aggregate prepayment penalties of all such Deleted Mortgage Loans. An amount equal to the aggregate of the deficiencies described in the preceding sentence (such amount, the "Substitution Adjustment Amount") plus an amount equal to any unreimbursed costs, penalties and/or damages incurred by the Trust Fund in connection with any violation relating to such Deleted Mortgage Loan of any predatory or abusive lending law shall be deposited into the Certificate Account by the Seller on the Determination Date for the Distribution Date relating to the Prepayment Period during which the related Mortgage Loan became required to be purchased or replaced hereunder. The Trustee shall cause the Mortgage Loan Schedule to be amended in accordance with the terms of this Agreement. The Seller shall give or cause to be given written notice to the Certificateholders and the NIMs Insurer that such substitution has taken place, shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Replacement Mortgage Loan or Replacement Mortgage Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the NIMs Insurer and the Trustee. Upon such substitution by the Seller, such Replacement Mortgage Loan or Replacement Mortgage Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and the Sale Agreement, including all applicable representations and warranties thereof included in the Sale Agreement as of the date of substitution. In addition, the Seller shall obtain at its own expense and deliver to the Trustee and the NIMs Insurer an Opinion of Counsel to the effect that such substitution will not (a) cause any federal tax to be imposed on the Trust Fund or any REMIC provided for herein, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup date" under Section 860G(d)(1) of the Code or (b) adversely affect the status of any REMIC provided for herein as a REMIC. If any such Opinion of Counsel can not be delivered, then such substitution may only be effected at such time as the required Opinion of Counsel can be given.
(d) It is understood and agreed that the representations, warranties and indemnification (i) set forth in this Section 2.03, (ii) of the Seller and the Depositor set forth in the Sale Agreement and assigned to the Trustee by the Depositor hereunder and (iii) of each Transferor, assigned by the Seller to the Depositor pursuant to the Sale Agreement and assigned to the Trustee by the Depositor hereunder shall each survive delivery of the Mortgage Files and the Assignment of Mortgage of each Mortgage Loan to the Trustee and shall continue throughout the term of this Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Mortgage Loan Asset-Backed Certificates Series 2003 He1)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, represents and warrants and covenants to the TrusteeNIMs Insurer, for its own benefit and the benefit of the Certificateholders, and to the Master Servicer and the Special ServicerTrustee as follows, as of the Closing Date, thatdate hereof:
(i) The Depositor is duly organized and is validly existing as a corporation duly organized, validly existing and in good standing under the laws of the State of DelawareDelaware and has full power and authority (corporate and other) 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 and the Sale Agreement.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full corporate power and authority to execute, deliver and perform, and to enter into and consummate all the transactions contemplated by by, this Agreement, Agreement and the Sale Agreement and has duly authorized authorized, by all necessary corporate action on its part, the execution, delivery and performance of this Agreement and the Sale Agreement, ; and has duly executed this Agreement and delivered this Agreement.
(iv) This the Sale Agreement, assuming the due authorization, execution and delivery hereof by each of the other parties hereto, constitutes a validlegal, legal valid and binding obligation of the Depositor, enforceable against the Depositor in accordance with the terms hereofits terms, subject subject, as to enforceability, to (Ai) applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally, generally and (Bii) general principles of equity, regardless of whether such enforcement is considered sought in a proceeding in equity or at law.
(viii) The Depositor is not in violation of, and its execution and delivery of this Agreement and its performance the Sale Agreement by the Depositor, the consummation of the transactions contemplated by this Agreement and the Sale Agreement, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Depositor and will not (A) result in a material breach of any term or provision of the charter or by-laws of the Depositor or (B) materially conflict with, result in a violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Depositor is a party or by which it may be bound or (C) constitute a material violation of any statute, order or regulation applicable to the Depositor of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Depositor; and the Depositor is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Depositor's ability to perform or meet any of its obligations under this Agreement.
(iv) No litigation is pending, or, to the best of the Depositor's knowledge, threatened, against the Depositor that would materially and adversely affect the execution, delivery or enforceability of this Agreement will not constitute a violation of, any law, any order and the Sale Agreement or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Depositor's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Depositor to perform its obligations under this Agreement or and the financial condition of Sale Agreement in accordance with the Depositorterms hereof.
(viv) The transfer No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Depositor of, or compliance by the Depositor with, this Agreement and the Sale Agreement or the consummation of the Trust Mortgage Loans to the Trustee as transactions contemplated herein requires no regulatory hereby, or if any such consent, approval, other than any such approvals as have been obtainedauthorization or order is required, and is not subject to any bulk transfer or similar law in effect in any applicable jurisdiction.
(vii) the Depositor has obtained the same. The Depositor is not transferring the Trust Mortgage Loans hereby represents and warrants to the Trustee with any intent respect to hinder, delay or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left with unreasonably small assets or capital with which to engage in and conduct its business.
(x) The Depositor 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.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xii) No litigation is pending or, to the best of the Depositor's knowledge, threatened against the Depositor that, if determined adversely to the Depositor, would prohibit the Depositor from entering into this Agreement or that, in the Depositor's good faith and reasonable judgment, is likely to materially and adversely affect either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(xiii) Except for any actions that are the express responsibility of another party hereunder or under the each Mortgage Loan Purchase Agreements, and further except for actions that the Depositor is expressly permitted to complete subsequent to as of the Closing Date, the Depositor has taken all actions required under applicable law to effectuate and following the transfer of the Trust Mortgage Loans by the Depositor to the Trustee.
(xiv) Immediately prior to the transfer of the UBS Trust Mortgage Loans to it by the Trust pursuant to this Agreement (and assuming that the UBS Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Trust Mortgage LoanSponsor, free and clear of all liens, claims, encumbrances and other interests), (A) the Depositor had good title to the Mortgage Loans and marketable title tothe Mortgage Notes were subject to no offsets, and was the sole owner and holder ofclaims, each UBS Trust Mortgage Loan; and (B) the Depositor has full right and authority to sellliens, assign and transfer the UBS Trust Mortgage Loansmortgage, exclusive of the servicing rights pertaining theretopledge, charge, security interest, defenses or counterclaims.
(b) The Depositor hereby makes representations and warranties of the Transferor with respect to the Trusteerelated Mortgage Loans in the Transfer Agreement, for which have been assigned to the Trustee's own benefit and the benefit Trustee hereunder, were made as of the Certificateholdersdate specified in the Transfer Agreement and brought forward to the Closing Date pursuant to the Bring Down Letter. The representations and warranties of the Transferor with respect to the Mortgage Loans contained in the Bring Down Letter were made as of the Closing Date. The representations and warranties of the Sponsor with respect to the Mortgage Loans contained in the Sale Agreement were made as of the Closing Date. To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of a representation or warranty of the Sponsor under the Sale Agreement, the obligations of the Sponsor under the Sale Agreement shall be enforced against the Sponsor, as set forth in the Sale Agreement. The Trustee acknowledges that the Depositor shall have no obligation or liability with respect to any breach of any representation or warranty with respect to the Mortgage Loans (except as set forth in Section 2.03(a)(v)) under any circumstances. In addition to the representations and warranties of the Transferor in the Transfer Agreement that were brought forward to the Closing Date pursuant to the Bring Down Letter, with respect to each Xxxxxx Trust Mortgage Loan onlyLoan, the representations and warranties shown on Schedule II heretoTransferor made certain additional covenants regarding such Mortgage Loan, as of the Closing Date or such other date specified in the particular representation and warranty, subject to the exceptions set forth on Schedule III hereto (the headings set forth in Schedule II hereto with the Transfer Agreement. With respect to each representation any breach of such additional covenants that materially and warranty being for convenience adversely affects the interests of reference only and the Certificateholders in no way limiting, expanding or otherwise affecting the scope or subject matter thereof). Except as expressly provided in Section 2.04(a)such Mortgage Loan, the Depositor does not make any representations or warranties regarding the UBS Trust Sponsor shall repurchase such Mortgage LoansLoan in accordance with this Section 2.03.
(c) The representations, warranties and covenants of the Depositor set forth in or made pursuant to Section 2.04(a) and Section 2.04(b) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any the NIMs Insurer, the Depositor, the Servicer or the Trustee (or its custodian) of a breach of any of such representationsrepresentations and warranties that adversely and materially affects the value of the related Mortgage Loan, warranties and covenantsPrepayment Charges or the interests of the Certificateholders, the party discovering such breach shall give prompt written notice thereof to the other parties. Within 90 days of the discovery of such breach of any representation or warranty, the Sponsor shall either (a) cure such breach in all material respects, (b) repurchase such Mortgage Loan or any property acquired in respect thereof from the Trustee at the Purchase Price or (c) within the two year period following the Closing Date, substitute a Replacement Mortgage Loan for the affected Mortgage Loan. In the event of discovery of a breach of any representation and warranty of the Sponsor, the Trustee's rights shall be enforced under the Sale Agreement for the benefit of Certificateholders and the NIMs Insurer. If a breach of the representations and warranties set forth in the Transfer Agreement hereof exists solely due to the unenforceability of a Prepayment Charge, the Trustee or the other party having notice thereof shall notify the Servicer thereof and not seek to enforce the repurchase remedy provided for herein unless such Mortgage Loan is not current. In the event of a breach of the representations and warranties with respect to the Mortgage Loans set forth in the Transfer Agreement, the Trustee shall enforce the right of the Trust Fund to be indemnified for such breach of representation and warranty. In the event that such breach relates solely to the unenforceability of a Prepayment Charge, amounts received in respect of such indemnity up to the amount of such Prepayment Charge shall be distributed pursuant to Section 4.04(b)(i). As provided in the Sale Agreement, if the Sponsor substitutes for a Mortgage Loan for which there is a breach of any representations and warranties in the Transfer Agreement which adversely and materially affects the value of such Mortgage Loan and such substitute mortgage loan is not a Replacement Mortgage Loan, under the terms of the Sale Agreement, the Sponsor will, in exchange for such substitute Mortgage Loan, (i) provide the applicable Purchase Price for the affected Mortgage Loan or (ii) within two years of the Closing Date, substitute such affected Mortgage Loan with a Replacement Mortgage Loan. Any such substitution shall not be effected prior to the additional delivery to the Trustee of a Request for Release substantially in the form of Exhibit I and shall not be effected unless it is within two years of the Startup Day. The Sponsor indemnifies and holds the Trust Fund, the Trustee (or its custodian, as applicable), the Depositor, the Servicer, the Custodian, the NIMs Insurer and each Certificateholder harmless against any and all taxes, claims, losses, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, fees and expenses that the Trust Fund, the Trustee (or its custodian, as applicable), the Depositor, the Servicer, the Custodian, the NIMs Insurer and any Certificateholder may sustain in connection with any actions of the Sponsor relating to a repurchase of a Mortgage Loan other than in compliance with the terms of this Section 2.03 and the Sale Agreement, to the extent that any such action causes (i) any federal or state tax to be imposed on the Trust Fund or any REMIC provided for herein, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup day" under Section 860G(d)(1) of the Code, or (ii) any REMIC created hereunder to fail to qualify as a REMIC at any time that any Certificate is outstanding. In furtherance of the foregoing, if the Sponsor is not a member of MERS and repurchases a Mortgage Loan which is registered on the MERS System, the Sponsor, at its own expense and without any right of reimbursement, shall cause MERS to execute and deliver an assignment of the Mortgage in recordable form to transfer the Mortgage from MERS to the Sponsor and shall cause such Mortgage to be removed from registration on the MERS System in accordance with MERS' rules and regulations. With respect to any Mortgage Loan repurchased by the Sponsor pursuant to the Sale Agreement, the principal portion of the funds received by the Servicer in respect of such repurchase of a Mortgage Loan will be considered a Principal Prepayment and shall be deposited in the Certificate Account pursuant to Section 3.05. Upon receipt by the Trustee of notice from the Servicer of receipt by the Servicer of the full amount of the Purchase Price for a Deleted Mortgage Loan, and upon receipt by the Trustee or the Custodian of the Mortgage File for a Replacement Mortgage Loan substituted for a Deleted Mortgage Loan and a Request for Release, the Trustee or the Custodian shall release and reassign to the Sponsor the related Mortgage File for the Deleted Mortgage Loan and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation or warranty, as shall be necessary to vest in such party or its designee or assignee title to any Deleted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Depositor or the Sponsor, and the Trustee (and its custodian) shall have no further responsibility with respect to the Mortgage File relating to such Deleted Mortgage Loan. With respect to each Replacement Mortgage Loan to be delivered to the Trustee or the Custodian pursuant to the terms of this Article II in exchange for a Deleted Mortgage Loan: (i) the Sponsor must deliver to the Trustee or the Custodian the Mortgage File for the Replacement Mortgage Loan containing the documents set forth in Section 2.01 along with a written certification certifying as to the Mortgage Loan satisfying all requirements under the definition of Replacement Mortgage Loan and the delivery of such Mortgage File and containing the granting language set forth in Section 2.01; and (ii) the Depositor will be deemed to have made, with respect to such Replacement Mortgage Loan, each of the representations and warranties made by it with respect to the related Deleted Mortgage Loan. The Trustee or the Custodian shall review the Mortgage File with respect to each Replacement Mortgage Loan and certify to the Depositor that all documents required by Section 2.01(A)-(B), (C) (if applicable), and (D)-(E) have been executed and received. For any month in which the Sponsor substitutes one or more Replacement Mortgage Loans for one or more Deleted Mortgage Loans, the Sponsor will determine the amount (if any) by which the aggregate principal balance of all such Replacement Mortgage Loans as of the date of substitution and the aggregate Prepayment Charges with respect to such Replacement Mortgage Loans is less than the aggregate Stated Principal Balance (after application of the principal portion of the Scheduled Payment due in the month of substitution) and aggregate Prepayment Charges of all such Deleted Mortgage Loans. An amount equal to the aggregate of the deficiencies described in the preceding sentence (such amount, the "Substitution Adjustment Amount") plus an amount equal to any unreimbursed costs, penalties and/or damages incurred by the Trust Fund in connection with any violation relating to such Deleted Mortgage Loan of any predatory or abusive lending law shall be remitted by the Sponsor to the Trustee for deposit into the Certificate Account by the Sponsor on the Determination Date for the Distribution Date relating to the Prepayment Period during which the related Mortgage Loan became required to be purchased or replaced hereunder. Notwithstanding any other provision of this Agreement, the right to substitute Mortgage Loans pursuant to this Article II shall be subject to the additional limitations that no substitution of a Replacement Mortgage Loan for a Deleted Mortgage Loan shall be made unless the Trustee and the NIMs Insurer shall each have received an Opinion of Counsel (at the expense of the party seeking to make the substitution) that, under current law, such substitution will not (A) affect adversely the status of any REMIC established hereunder as a REMIC, or of the related "regular interests" as "regular interests" in any such REMIC, or (B) cause any such REMIC to engage in a "prohibited transaction" or prohibited contribution pursuant to the REMIC Provisions. The Depositor shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Replacement Mortgage Loan or Replacement Mortgage Loans. Upon such substitution by the Sponsor, such Replacement Mortgage Loan or Replacement Mortgage Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and the applicable Sale Agreement, including all applicable representations and warranties thereof included in the applicable Sale Agreement as of the date of substitution.
(d) It is understood and agreed that the representations, warranties and indemnification (i) set forth in this Section 2.03, (ii) of the Sponsor and the Depositor set forth in the Sale Agreement and assigned to the Trustee by the Depositor hereunder and (iii) of each Transferor, assigned by the Sponsor to the Depositor pursuant to the Sale Agreement and assigned to the Trustee by the Depositor hereunder shall each survive delivery of the Mortgage Files and the Assignment of Mortgage of each Mortgage Loan to the Trustee and shall continue throughout the term of this Agreement.
(e) The Depositor shall deliver a copy of the Mortgage Loan Schedule to the Servicer on the Closing Date.
(f) The Depositor shall notify the Servicer and the Trustee when any NIM Notes are issued and when such NIM Notes are no longer outstanding.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Mortgage Loan Asset-Backed Certificates, Series 2006-Ar1)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, represents and warrants and covenants to the TrusteeServicer, for its own benefit the Servicing Administrator, the Securities Administrator, the Seller and the benefit of the Certificateholders, and to the Master Servicer and the Special ServicerTrustee as follows, as of the Closing Date, thatdate hereof:
(i) The Depositor is duly organized and is validly existing as a corporation duly organized, validly existing and in good standing under the laws of the State of DelawareDelaware and has full power and authority (corporate and other) 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 and the Sale Agreement.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full corporate power and authority to execute, deliver and perform, and to enter into and consummate all the transactions contemplated by by, this Agreement, Agreement and the Sale Agreement and has duly authorized authorized, by all necessary corporate action on its part, the execution, delivery and performance of this Agreement and the Sale Agreement, ; and has duly executed this Agreement and delivered this Agreement.
(iv) This the Sale Agreement, assuming the due authorization, execution and delivery hereof by each of the other parties hereto, constitutes a validlegal, legal valid and binding obligation of the Depositor, enforceable against the Depositor in accordance with the terms hereofits terms, subject subject, as to enforceability, to (Ai) applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforcement of creditors' ’ rights generally, generally and (Bii) general principles of equity, regardless of whether such enforcement is considered sought in a proceeding in equity or at law.
(viii) The Depositor is not in violation of, and its execution and delivery of this Agreement and its performance the Sale Agreement by the Depositor, the consummation of the transactions contemplated by this Agreement and the Sale Agreement, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Depositor and will not (A) result in a material breach of any term or provision of the charter or by-laws of the Depositor or (B) materially conflict with, result in a violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Depositor is a party or by which it may be bound or (C) constitute a material violation of any statute, order or regulation applicable to the Depositor of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Depositor; and the Depositor is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Depositor’s ability to perform or meet any of its obligations under this Agreement.
(iv) No litigation is pending, or, to the best of the Depositor’s knowledge, threatened, against the Depositor that would materially and adversely affect the execution, delivery or enforceability of this Agreement will not constitute a violation of, any law, any order and the Sale Agreement or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Depositor's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Depositor to perform its obligations under this Agreement or and the financial condition of Sale Agreement in accordance with the Depositorterms hereof.
(viv) The transfer No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Depositor of, or compliance by the Depositor with, this Agreement and the Sale Agreement or the consummation of the Trust Mortgage Loans to the Trustee as transactions contemplated herein requires no regulatory hereby, or if any such consent, approval, other than any such approvals as have been obtainedauthorization or order is required, and is not subject to any bulk transfer or similar law in effect in any applicable jurisdiction.
(vii) the Depositor has obtained the same. The Depositor is not transferring the Trust Mortgage Loans hereby represents and warrants to the Trustee with any intent respect to hinder, delay each Mortgage Loan as of the Closing Date (or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior tothe Subsequent Transfer Date with respect to Subsequent Mortgage Loans), and will not be rendered insolvent by, its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left with unreasonably small assets or capital with which to engage in and conduct its business.
(x) The Depositor 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.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xii) No litigation is pending or, to the best of the Depositor's knowledge, threatened against the Depositor that, if determined adversely to the Depositor, would prohibit the Depositor from entering into this Agreement or that, in the Depositor's good faith and reasonable judgment, is likely to materially and adversely affect either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(xiii) Except for any actions that are the express responsibility of another party hereunder or under the Mortgage Loan Purchase Agreements, and further except for actions that the Depositor is expressly permitted to complete subsequent to the Closing Date, the Depositor has taken all actions required under applicable law to effectuate following the transfer of the Trust Mortgage Loans by the Depositor to the Trustee.
(xiv) Immediately prior to the transfer of the UBS Trust Mortgage Loans to it by the Trust pursuant to this Agreement (and assuming that the UBS Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Trust Mortgage LoanSeller, free and clear of all liens, claims, encumbrances and other interests), (A) the Depositor had good title to the Mortgage Loans and marketable title tothe Mortgage Notes were subject to no offsets, and was the sole owner and holder ofclaims, each UBS Trust Mortgage Loan; and (B) the Depositor has full right and authority to sellliens, assign and transfer the UBS Trust Mortgage Loansmortgage, exclusive of the servicing rights pertaining theretopledge, charge, security interest, defenses or counterclaims.
(b) The Depositor hereby makes to the Trustee, for the Trustee's own benefit representations and the benefit warranties of the Certificateholders, each Transferor with respect to each Xxxxxx Trust the related Mortgage Loan onlyLoans in the applicable Transfer Agreement, which have been assigned to the representations and warranties shown on Schedule II heretoTrustee hereunder, were made as of the Closing Date or such other date specified in the particular representation and warrantyapplicable Transfer Agreement (or underlying agreement, subject to if such Transfer Agreement is in the exceptions set forth on Schedule III hereto (form of an assignment of a prior agreement). To the headings set forth in Schedule II hereto extent that any fact, condition or event with respect to each a Mortgage Loan constitutes a breach of both (i) a representation or warranty of the applicable Transferor under the applicable Transfer Agreement and (ii) a representation or warranty being for convenience of reference only and in no way limiting, expanding or otherwise affecting the scope or subject matter thereof). Except as expressly provided in Section 2.04(a)Seller under the Sale Agreement, the Depositor obligations of the Seller under the Sale Agreement shall be enforced and to the extent the Seller does not make fulfill its contracted obligations then the obligations of the applicable Transferor shall be enforced under any representations applicable representation or warranties regarding warranty made by it. The Trustee further acknowledges that the UBS Trust Depositor shall have no obligation or liability with respect to any breach of any representation or warranty with respect to the Mortgage LoansLoans under any circumstances.
(c) The representations, warranties and covenants of the Depositor set forth in or made pursuant to Section 2.04(a) and Section 2.04(b) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any the Depositor, the Servicing Administrator, the Servicer, the Securities Administrator or the Trustee of a breach of any of such representationsrepresentations and warranties that adversely and materially affects the value of the related Mortgage Loan, warranties and covenantsprepayment charges or the interests of the Certificateholders, the party discovering such breach shall give prompt written notice thereof to the other parties. Within 90 days of the discovery of such breach of any representation or warranty together with information indicating the nature of the breach, the applicable Transferor or the Seller, as applicable, shall either (a) cure such breach in all material respects, (b) repurchase such Mortgage Loan or any property acquired in respect thereof from the Trustee at the Purchase Price or (c) within the two year period following the Closing Date, substitute a Replacement Mortgage Loan for the affected Mortgage Loan. In the event of discovery of a breach of any representation and warranty of any Transferor or the Seller, the Trustee’s rights shall be enforced under the applicable Transfer Agreement and the Sale Agreement for the benefit of Certificateholders. If a breach of the representations and warranties set forth in the Transfer Agreement hereof exists solely due to the unenforceability of a prepayment charge, the Trustee or the other party having notice thereof shall notify the Servicer thereof and not seek to enforce the repurchase remedy provided for herein unless such Mortgage Loan is not current. In the event of a breach of the representations and warranties with respect to the Mortgage Loans set forth in a Transfer Agreement, the Trustee shall enforce the right of the Trust Fund to be indemnified for such breach of representation and warranty. In the event that such breach relates solely to the unenforceability of a prepayment charge, amounts received in respect of such indemnity up to the amount of such prepayment charge shall be distributed pursuant to Section 5.05(i). As provided in the Sale Agreement, if the Transferor substitutes for a Mortgage Loan for which there is a breach of any representations and warranties in the related Transfer Agreement which adversely and materially affects the value of such Mortgage Loan and such substitute mortgage loan is not a Replacement Mortgage Loan, under the terms of the Sale Agreement, the Seller will, in exchange for such substitute Mortgage Loan, (i) provide the applicable Purchase Price for the affected Mortgage Loan or (ii) within two years of the Closing Date, substitute such affected Mortgage Loan with a Replacement Mortgage Loan. Any such substitution shall not be effected prior to the additional delivery to the Trustee of a Request for Release substantially in the form of Exhibit I and shall not be effected unless it is within two years of the Startup Day. The Seller indemnifies and holds the Trust Fund, the Trustee, the Securities Administrator, the Depositor, the Servicing Administrator, the Servicer and each Certificateholder harmless against any and all taxes, claims, losses, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, fees and expenses that the Trust Fund, the Trustee, the Securities Administrator, the Depositor, the Servicing Administrator, the Servicer and any Certificateholder may sustain in connection with any actions of the Seller relating to a repurchase of a Mortgage Loan other than in compliance with the terms of this Section 2.03 and the Sale Agreement, to the extent that any such action causes (i) any federal or state tax to be imposed on the Trust Fund or any REMIC provided for herein, including without limitation, any federal tax imposed on “prohibited transactions” under Section 860F(a)(1) of the Code or on “contributions after the startup day” under Section 860G(d)(1) of the Code, or (ii) any REMIC created hereunder to fail to qualify as a REMIC at any time that any Certificate is outstanding. In furtherance of the foregoing, if the Transferor or the Seller, as applicable, is not a member of MERS and repurchases a Mortgage Loan which is registered on the MERS System, the Transferor or the Seller, as applicable, at its own expense and without any right of reimbursement, shall cause MERS to execute and deliver an assignment of the Mortgage in recordable form to transfer the Mortgage from MERS to the Transferor or the Seller, as applicable, and shall cause such Mortgage to be removed from registration on the MERS System in accordance with MERS’ rules and regulations. With respect to any Mortgage Loan repurchased by the Seller pursuant to the Sale Agreement or by any Transferor pursuant to the applicable Transfer Agreement, the principal portion of the funds received by the Securities Administrator, in respect of such repurchase of a Mortgage Loan will be considered a Principal Prepayment and shall be deposited in the Certificate Account pursuant to Section 3.05. The Trustee, upon receipt of notice from the Securities Administrator of its receipt of the full amount of the Purchase Price for a Deleted Mortgage Loan, or upon receipt of the Mortgage File for a Replacement Mortgage Loan substituted for a Deleted Mortgage Loan, shall release or cause to be released and reassign to the Seller or the applicable Transferor, as applicable, the related Mortgage File for the Deleted Mortgage Loan and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation or warranty, as shall be necessary to vest in such party or its designee or assignee title to any Deleted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Seller, and neither the Trustee nor the Securities Administrator shall have any further responsibility with respect to the Mortgage File relating to such Deleted Mortgage Loan. With respect to each Replacement Mortgage Loan to be delivered to the Trustee (or the Custodian) pursuant to the terms of this Article II in exchange for a Deleted Mortgage Loan: (i) the applicable Transferor or the Seller, as applicable, must deliver to the Trustee (or its custodian) the Mortgage File for the Replacement Mortgage Loan containing the documents set forth in Section 2.01 along with a written certification certifying as to the Mortgage Loan satisfying all requirements under the definition of Replacement Mortgage Loan and the delivery of such Mortgage File and containing the granting language set forth in Section 2.01; and (ii) the Depositor will be deemed to have made, with respect to such Replacement Mortgage Loan, each of the representations and warranties made by it with respect to the related Deleted Mortgage Loan. The Custodian shall review the Mortgage File with respect to each Replacement Mortgage Loan and certify to the Depositor that all documents required by Section 2.01 have been executed and received. For any month in which the Seller substitutes one or more Replacement Mortgage Loans for one or more Deleted Mortgage Loans, the Seller will determine the amount (if any) by which the aggregate principal balance of all such Replacement Mortgage Loans as of the date of substitution and the aggregate prepayment penalties with respect to such Replacement Mortgage Loans is less than the aggregate Stated Principal Balance (after application of the principal portion of the Scheduled Payment due in the month of substitution) and aggregate prepayment penalties of all such Deleted Mortgage Loans. An amount equal to the aggregate of the deficiencies described in the preceding sentence (such amount, the “Substitution Adjustment Amount”) shall be deposited into the Certificate Account by the Seller on the Determination Date for the Distribution Date relating to the Prepayment Period during which the related Mortgage Loan became required to be purchased or replaced hereunder. Notwithstanding any other provision of this Agreement, the right to substitute Mortgage Loans pursuant to this Article II shall be subject to the additional limitations that no substitution of a Replacement Mortgage Loan for a Deleted Mortgage Loan shall be made unless the Securities Administrator shall have received an Opinion of Counsel (at the expense of the party seeking to make the substitution) that, under current law, such substitution will not (A) affect adversely the status of any REMIC established hereunder as a REMIC, or of the related “regular interests” as “regular interests” in any such REMIC, or (B) cause any such REMIC to engage in a “prohibited transaction” or prohibited contribution pursuant to the REMIC Provisions. The Servicer shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Replacement Mortgage Loan or Replacement Mortgage Loans. Upon such substitution by the Seller, such Replacement Mortgage Loan or Replacement Mortgage Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and the Sale Agreement, including all applicable representations and warranties thereof included in the Sale Agreement as of the date of substitution.
(d) It is understood and agreed that the representations, warranties and indemnification (i) set forth in this Section 2.03, (ii) of the Seller and the Depositor set forth in the Sale Agreement and assigned to the Trustee by the Depositor hereunder and (iii) of each Transferor, assigned by the Seller to the Depositor pursuant to the Sale Agreement and assigned to the Trustee by the Depositor hereunder shall each survive delivery of the Mortgage Files and the Assignment of Mortgage of each Mortgage Loan to the Trustee and shall continue throughout the term of this Agreement.
(e) The Depositor shall deliver a copy of the Mortgage Loan Schedule to the Servicer on the Closing Date (or the Subsequent Transfer Date with respect to Subsequent Mortgage Loans).
Appears in 1 contract
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, represents and warrants and covenants to the Trustee, for its own benefit and the benefit of the Certificateholders, and to the Master Servicer and the Special ServicerTrustee as follows, as of the Closing Date, thatdate hereof:
(i) The Depositor is duly organized and is validly existing as a corporation duly organized, validly existing and in good standing under the laws of the State of DelawareDelaware and has full power and authority (corporate and other) 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 and the Sale Agreement.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full corporate power and authority to execute, deliver and perform, and to enter into and consummate all the transactions contemplated by by, this Agreement, Agreement and the Sale Agreement and has duly authorized authorized, by all necessary corporate action on its part, the execution, delivery and performance of this Agreement and the Sale Agreement, ; and has duly executed this Agreement and delivered this Agreement.
(iv) This the Sale Agreement, assuming the due authorization, execution and delivery hereof by each of the other parties hereto, constitutes a validlegal, legal valid and binding obligation of the Depositor, enforceable against the Depositor in accordance with the terms hereofits terms, subject subject, as to enforceability, to (Ai) applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally, generally and (Bii) general principles of equity, regardless of whether such enforcement is considered sought in a proceeding in equity or at law.
(viii) The Depositor is not in violation of, and its execution and delivery of this Agreement and its performance the Sale Agreement by the Depositor, the consummation of the transactions contemplated by this Agreement and the Sale Agreement, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Depositor and will not (A) result in a material breach of any term or provision of the charter or by-laws of the Depositor or (B) materially conflict with, result in a violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Depositor is a party or by which it may be bound or (C) constitute a material violation of any statute, order or regulation applicable to the Depositor of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Depositor; and the Depositor is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Depositor's ability to perform or meet any of its obligations under this Agreement.
(iv) No litigation is pending, or, to the best of the Depositor's knowledge, threatened, against the Depositor that would materially and adversely affect the execution, delivery or enforceability of this Agreement will not constitute a violation of, any law, any order and the Sale Agreement or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Depositor's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Depositor to perform its obligations under this Agreement or and the financial condition of Sale Agreement in accordance with the Depositorterms hereof.
(viv) The transfer No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Depositor of, or compliance by the Depositor with, this Agreement and the Sale Agreement or the consummation of the Trust Mortgage Loans to the Trustee as transactions contemplated herein requires no regulatory hereby, or if any such consent, approval, other than any such approvals as have been obtainedauthorization or order is required, and is not subject to any bulk transfer or similar law in effect in any applicable jurisdiction.
(vii) the Depositor has obtained the same. The Depositor is not transferring the Trust Mortgage Loans hereby represents and warrants to the Trustee with any intent respect to hinder, delay or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left with unreasonably small assets or capital with which to engage in and conduct its business.
(x) The Depositor 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.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xii) No litigation is pending or, to the best of the Depositor's knowledge, threatened against the Depositor that, if determined adversely to the Depositor, would prohibit the Depositor from entering into this Agreement or that, in the Depositor's good faith and reasonable judgment, is likely to materially and adversely affect either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(xiii) Except for any actions that are the express responsibility of another party hereunder or under the each Mortgage Loan Purchase Agreements, and further except for actions that the Depositor is expressly permitted to complete subsequent to as of the Closing Date, the Depositor has taken all actions required under applicable law to effectuate and following the transfer of the Trust Mortgage Loans by the Depositor to the Trustee.
(xiv) Immediately prior to the transfer of the UBS Trust Mortgage Loans to it by the Trust pursuant to this Agreement (and assuming that the UBS Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Trust Mortgage LoanSponsor, free and clear of all liens, claims, encumbrances and other interests), (A) the Depositor had good title to the Mortgage Loans and marketable title tothe Mortgage Notes were subject to no offsets, and was the sole owner and holder ofclaims, each UBS Trust Mortgage Loan; and (B) the Depositor has full right and authority to sellliens, assign and transfer the UBS Trust Mortgage Loansmortgage, exclusive of the servicing rights pertaining theretopledge, charge, security interest, defenses or counterclaims.
(b) The Depositor hereby makes representations and warranties of the Transferor with respect to the Trusteerelated Mortgage Loans in the Transfer Agreement, for which have been assigned to the Trustee's own benefit and the benefit Trustee hereunder, were made as of the Certificateholdersdate specified in the Transfer Agreement and brought forward to the Closing Date pursuant to the Bring Down Letter. The representations and warranties of the Transferor with respect to the Mortgage Loans contained in the Bring Down Letter were made as of the Closing Date. The representations and warranties of the Sponsor with respect to the Mortgage Loans contained in the Sale Agreement were made as of the Closing Date. To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of a representation or warranty of the Sponsor under the Sale Agreement, the obligations of the Sponsor under the Sale Agreement shall be enforced against the Sponsor, as set forth in the Sale Agreement. The Trustee acknowledges that the Depositor shall have no obligation or liability with respect to any breach of any representation or warranty with respect to the Mortgage Loans (except as set forth in Section 2.03(a)(v)) under any circumstances. In addition to the representations and warranties of the Transferor in the Transfer Agreement that were brought forward to the Closing Date pursuant to the Bring Down Letter, with respect to each Xxxxxx Trust Mortgage Loan onlyLoan, the representations and warranties shown on Schedule II heretoTransferor made certain additional covenants regarding such Mortgage Loan, as of the Closing Date or such other date specified in the particular representation and warranty, subject to the exceptions set forth on Schedule III hereto (the headings set forth in Schedule II hereto with the Transfer Agreement. With respect to each representation any breach of such additional covenants that materially and warranty being for convenience adversely affects the interests of reference only and the Certificateholders in no way limiting, expanding or otherwise affecting the scope or subject matter thereof). Except as expressly provided in Section 2.04(a)such Mortgage Loan, the Depositor does not make any representations or warranties regarding the UBS Trust Sponsor shall repurchase such Mortgage LoansLoan in accordance with this Section 2.03.
(c) The representations, warranties and covenants of the Depositor set forth in or made pursuant to Section 2.04(a) and Section 2.04(b) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any the Depositor, the Servicer or the Trustee (or its custodian) of a breach of any of such representationsrepresentations and warranties that adversely and materially affects the value of the related Mortgage Loan, warranties and covenantsPrepayment Charges or the interests of the Certificateholders, the party discovering such breach shall give prompt written notice thereof to the other parties. Within ninety (90) days of the discovery of such breach of any representation or warranty, the Sponsor shall either (a) cure such breach in all material respects, (b) repurchase such Mortgage Loan or any property acquired in respect thereof from the Trustee at the Purchase Price or (c) within the two year period following the Closing Date, substitute a Replacement Mortgage Loan for the affected Mortgage Loan. In the event of discovery of a breach of any representation and warranty of the Sponsor, the Trustee's rights shall be enforced under the Sale Agreement for the benefit of Certificateholders. If a breach of the representations and warranties set forth in the Transfer Agreement hereof exists solely due to the unenforceability of a Prepayment Charge, the Trustee or the other party having notice thereof shall notify the Servicer thereof and not seek to enforce the repurchase remedy provided for herein unless such Mortgage Loan is not current. In the event of a breach of the representations and warranties with respect to the Mortgage Loans set forth in the Transfer Agreement, the Trustee shall enforce the right of the Issuing Entity to be indemnified for such breach of representation and warranty. In the event that such breach relates solely to the unenforceability of a Prepayment Charge, amounts received in respect of such indemnity up to the amount of such Prepayment Charge shall be distributed pursuant to Section 4.04(b)(i). As provided in the Sale Agreement, if the Sponsor substitutes for a Mortgage Loan for which there is a breach of any representations and warranties in the Transfer Agreement which adversely and materially affects the value of such Mortgage Loan and such substitute mortgage loan is not a Replacement Mortgage Loan, under the terms of the Sale Agreement, the Sponsor will, in exchange for such substitute Mortgage Loan, (i) provide the applicable Purchase Price for the affected Mortgage Loan or (ii) within two years of the Closing Date, substitute such affected Mortgage Loan with a Replacement Mortgage Loan. Any such substitution shall not be effected prior to the additional delivery to the Trustee of a Request for Release substantially in the form of Exhibit I and shall not be effected unless it is within two years of the Startup Day. As provided in the Sale Agreement, the Sponsor indemnifies and holds the Issuing Entity, the Trustee (or its custodian, as applicable), the Depositor, the Servicer and each Certificateholder harmless against any and all taxes, claims, losses, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, fees and expenses that the Issuing Entity, the Trustee (or its custodian, as applicable), the Depositor, the Servicer and any Certificateholder may sustain in connection with any actions of the Sponsor relating to a repurchase of a Mortgage Loan other than in compliance with the terms of this Section 2.03 and the Sale Agreement, to the extent that any such action causes (i) any federal or state tax to be imposed on the Issuing Entity or any REMIC provided for herein, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup day" under Section 860G(d)(1) of the Code, or (ii) any REMIC created hereunder to fail to qualify as a REMIC at any time that any Certificate is outstanding. In furtherance of the foregoing, if the Sponsor is not a member of MERS and repurchases a Mortgage Loan which is registered on the MERS System, the Sponsor, at its own expense and without any right of reimbursement, shall cause MERS to execute and deliver an assignment of the Mortgage in recordable form to transfer the Mortgage from MERS to the Sponsor and shall cause such Mortgage to be removed from registration on the MERS System in accordance with MERS' rules and regulations. With respect to any Mortgage Loan repurchased by the Sponsor pursuant to the Sale Agreement, the principal portion of the funds received by the Servicer in respect of such repurchase of a Mortgage Loan will be considered a Principal Prepayment and shall be deposited in the Certificate Account pursuant to Section 3.05. Upon receipt by the Trustee of notice from the Servicer of receipt by the Servicer of the full amount of the Purchase Price for a Deleted Mortgage Loan, and upon receipt by the Trustee of the Mortgage File for a Replacement Mortgage Loan substituted for a Deleted Mortgage Loan and a Request for Release, the Trustee shall release and reassign to the Sponsor the related Mortgage File for the Deleted Mortgage Loan and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation or warranty, as shall be necessary to vest in such party or its designee or assignee title to any Deleted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Depositor or the Sponsor, and the Trustee (and its custodian) shall have no further responsibility with respect to the Mortgage File relating to such Deleted Mortgage Loan. With respect to each Replacement Mortgage Loan to be delivered to the Trustee pursuant to the terms of this Article II in exchange for a Deleted Mortgage Loan: (i) the Sponsor must deliver to the Trustee the Mortgage File for the Replacement Mortgage Loan containing the documents set forth in
Section 2.01 along with a written certification certifying as to the Mortgage Loan satisfying all requirements under the definition of Replacement Mortgage Loan and the delivery of such Mortgage File and containing the granting language set forth in Section 2.01; and (ii) the Depositor will be deemed to have made, with respect to such Replacement Mortgage Loan, each of the representations and warranties made by it with respect to the related Deleted Mortgage Loan. The Trustee shall review the Mortgage File with respect to each Replacement Mortgage Loan and certify to the Depositor that all documents required by Section 2.01(A)-(B), (C) (if applicable), and (D)-(E) have been executed and received. For any month in which the Sponsor substitutes one or more Replacement Mortgage Loans for one or more Deleted Mortgage Loans, the Sponsor will determine the amount (if any) by which the aggregate principal balance of all such Replacement Mortgage Loans as of the date of substitution and the aggregate Prepayment Charges with respect to such Replacement Mortgage Loans is less than the aggregate Stated Principal Balance (after application of the principal portion of the Scheduled Payment due in the month of substitution) and aggregate Prepayment Charges of all such Deleted Mortgage Loans. An amount equal to the aggregate of the deficiencies described in the preceding sentence (such amount, the "Substitution Adjustment Amount") plus an amount equal to any unreimbursed costs, penalties and/or damages incurred by the Trust Fund in connection with any violation relating to such Deleted Mortgage Loan of any predatory or abusive lending law shall be remitted by the Sponsor to the Trustee for deposit into the Certificate Account by the Sponsor on the Determination Date for the Distribution Date relating to the Prepayment Period during which the related Mortgage Loan became required to be purchased or replaced hereunder. Notwithstanding any other provision of this Agreement, the right to substitute Mortgage Loans pursuant to this Article II shall be subject to the additional limitations that no substitution of a Replacement Mortgage Loan for a Deleted Mortgage Loan shall be made unless the Trustee shall have received an Opinion of Counsel (at the expense of the party seeking to make the substitution) that, under current law, such substitution will not (A) affect adversely the status of any REMIC established hereunder as a REMIC, or of the related "regular interests" as "regular interests" in any such REMIC, or (B) cause any such REMIC to engage in a "prohibited transaction" or prohibited contribution pursuant to the REMIC Provisions. The Depositor shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Replacement Mortgage Loan or Replacement Mortgage Loans. Upon such substitution by the Sponsor, such Replacement Mortgage Loan or Replacement Mortgage Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and the applicable Sale Agreement, including all applicable representations and warranties thereof included in the applicable Sale Agreement as of the date of substitution.
(d) It is understood and agreed that the representations, warranties and indemnification (i) set forth in this Section 2.03, (ii) of the Sponsor and the Depositor set forth in the Sale Agreement and assigned to the Trustee by the Depositor hereunder and (iii) of the Transferor, assigned by the Sponsor to the Depositor pursuant to the Sale Agreement and assigned to the Trustee by the Depositor hereunder shall each survive delivery of the Mortgage Files and the Assignment of Mortgage of each Mortgage Loan to the Trustee and shall continue throughout the term of this Agreement.
(e) The Depositor shall deliver a copy of the Mortgage Loan Schedule to the Servicer on the Closing Date.
(f) The Depositor shall notify the Servicer and the Trustee when any NIM Notes are issued and when such NIM Notes are no longer outstanding.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Trust, Series 2006-Rm5)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, represents and warrants and covenants to the TrusteeServicer, for its own benefit the Trustee and the benefit of the Certificateholders, and to the Master Servicer and the Special ServicerNIM Insurer as follows, as of the Closing Date, that:date hereof
(i) The Depositor is duly organized and is validly existing as a corporation duly organized, validly existing and in good standing under the laws of the State of DelawareDelaware and has full power and authority (corporate and other) 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 and the Sale Agreement.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full corporate power and authority to execute, deliver and perform, and to enter into and consummate all the transactions contemplated by by, this Agreement, Agreement and the Sale Agreement and has duly authorized authorized, by all necessary corporate action on its part, the execution, delivery and performance of this Agreement and the Sale Agreement, ; and has duly executed this Agreement and delivered this Agreement.
(iv) This the Sale Agreement, assuming the due authorization, execution and delivery hereof by each of the other parties hereto, constitutes a validlegal, legal valid and binding obligation of the Depositor, enforceable against the Depositor in accordance with the terms hereofits terms, subject subject, as to enforceability, to (Ai) applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally, generally and (Bii) general principles of equity, regardless of whether such enforcement is considered sought in a proceeding in equity or at law.
(viii) The Depositor is not in violation of, and its execution and delivery of this Agreement and its performance the Sale Agreement by the Depositor, the consummation of the transactions contemplated by this Agreement and the Sale Agreement, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Depositor and will not (A) result in a material breach of any term or provision of the charter or by-laws of the Depositor or (B) materially conflict with, result in a violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Depositor is a party or by which it may be bound or (C) constitute a material violation of any statute, order or regulation applicable to the Depositor of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Depositor; and the Depositor is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Depositor's ability to perform or meet any of its obligations under this Agreement.
(iv) No litigation is pending, or, to the best of the Depositor's knowledge, threatened, against the Depositor that would materially and adversely affect the execution, delivery or enforceability of this Agreement will not constitute a violation of, any law, any order and the Sale Agreement or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Depositor's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Depositor to perform its obligations under this Agreement or and the financial condition of Sale Agreement in accordance with the Depositorterms hereof.
(viv) The transfer No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Depositor of, or compliance by the Depositor with, this Agreement and the Sale Agreement or the consummation of the Trust Mortgage Loans to the Trustee as transactions contemplated herein requires no regulatory hereby, or if any such consent, approval, other than any such approvals as have been obtainedauthorization or order is required, and is not subject to any bulk transfer or similar law in effect in any applicable jurisdiction.
(vii) the Depositor has obtained the same. The Depositor is not transferring the Trust Mortgage Loans hereby represents and warrants to the Trustee with any intent respect to hinder, delay or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left with unreasonably small assets or capital with which to engage in and conduct its business.
(x) The Depositor 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.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xii) No litigation is pending or, to the best of the Depositor's knowledge, threatened against the Depositor that, if determined adversely to the Depositor, would prohibit the Depositor from entering into this Agreement or that, in the Depositor's good faith and reasonable judgment, is likely to materially and adversely affect either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(xiii) Except for any actions that are the express responsibility of another party hereunder or under the each Mortgage Loan Purchase Agreements, and further except for actions that the Depositor is expressly permitted to complete subsequent to as of the Closing Date, the Depositor has taken all actions required under applicable law to effectuate and following the transfer of the Trust Mortgage Loans by the Depositor to the Trustee.
(xiv) Immediately prior to the transfer of the UBS Trust Mortgage Loans to it by the Trust pursuant to this Agreement (and assuming that the UBS Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Trust Mortgage LoanSeller, free and clear of all liens, claims, encumbrances and other interests), (A) the Depositor had good title to the Mortgage Loans and marketable title tothe Mortgage Notes were subject to no offsets, and was the sole owner and holder ofclaims, each UBS Trust Mortgage Loan; and (B) the Depositor has full right and authority to sellliens, assign and transfer the UBS Trust Mortgage Loansmortgage, exclusive of the servicing rights pertaining theretopledge, charge, security interest, defenses or counterclaims.
(b) The Depositor hereby makes To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of a representation or warranty of the Seller under the Sale Agreement, the only right or remedy of the Trustee, for the NIM Insurer or of any Certificateholder shall be the Trustee's own benefit and right to enforce the benefit obligations of the Certificateholders, Seller under any applicable representation or warranty made by it. The Trustee acknowledges that the Depositor shall have no obligation or liability with respect to each Xxxxxx Trust Mortgage Loan only, the representations and warranties shown on Schedule II hereto, as any breach of the Closing Date any representation or such other date specified in the particular representation and warranty, subject warranty with respect to the exceptions set forth on Schedule III hereto Mortgage Loans (the headings except as set forth in Schedule II hereto with respect to each representation and warranty being for convenience of reference only and in no way limiting, expanding or otherwise affecting the scope or subject matter thereofSection 2.03(a)(v). Except as expressly provided in Section 2.04(a), the Depositor does not make ) under any representations or warranties regarding the UBS Trust Mortgage Loanscircumstances.
(c) The representations, warranties and covenants of the Depositor set forth in or made pursuant to Section 2.04(a) and Section 2.04(b) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any the Depositor, the Servicer, the NIM Insurer, or the Trustee of a breach of any of such representationsrepresentations and warranties set forth in the Sale Agreement that adversely and materially affects the value of the related Mortgage Loan, warranties and covenantsprepayment charges or the interests of the Certificateholders, the party discovering such breach shall give prompt written notice thereof to the other parties. Within 90 days of the discovery of a breach of any representation or warranty given to the Trustee by the Depositor, the Seller and assigned to the Trustee, the Depositor, or the Seller shall either (a) cure such breach in all material respects, (b) repurchase such Mortgage Loan or any property acquired in respect thereof from the Trustee at the Purchase Price or (c) within the two year period following the Closing Date, substitute a Replacement Mortgage Loan for the affected Mortgage Loan. In the event of discovery of a breach of any representation and warranty of the Seller or the Depositor, the Trustee shall enforce its rights under the Sale Agreement or thereunder for the benefit of Certificateholders and the NIM Insurer. If a breach of the representations and warranties set forth in the Sale Agreement hereof exists solely due to the unenforceability of a prepayment charge, the Trustee shall notify the NIM Insurer thereof and not seek to enforce the repurchase remedy provided for herein unless directed in writing to do so by the NIM Insurer. In the event of a breach of the representations and warranties with respect to the Mortgage Loans set forth in a Sale Agreement, the Trustee shall at the request of the NIM Insurer enforce the right of the Trust Fund and the NIM Insurer to be indemnified for such breach of representation and warranty. In the event that such breach relates solely to the unenforceability of a prepayment charge, amounts received in respect of such indemnity up to the amount of such prepayment charge shall be distributed pursuant to Section 4.04(b)(i)(B). As provided in the Sale Agreement, if the Seller substitutes for a Mortgage Loan for which there is a breach of any representations and warranties which adversely and materially affects the value of such Mortgage Loan and such substitute mortgage loan is not a Replacement Mortgage Loan, under the terms of the Sale Agreement, the Seller will, in exchange for such substitute Mortgage Loan, (i) provide the applicable Purchase Price for the affected Mortgage Loan or (ii) within two years of the Closing Date, substitute such affected Mortgage Loan with a Replacement Mortgage Loan. Any such substitution shall not be effected prior to the additional delivery to the Trustee of a Request for Release substantially in the form of Exhibit I and shall not be effected unless it is within two years of the Startup Date. As provided in the Sale Agreement, the Seller indemnifies and holds the Trust Fund, the Trustee, the Depositor, the NIM Insurer, the Servicer and each Certificateholder harmless against any and all taxes, claims, losses, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, fees and expenses that the Trust Fund, the Trustee, the Depositor, the NIM Insurer, the Servicer and any Certificateholder may sustain in connection with any actions of the Seller relating to a repurchase of a Mortgage Loan other than in compliance with the terms of this Section 2.03 and the Sale Agreement, to the extent that any such action causes (i) any federal or state tax to be imposed on the Trust Fund or any REMIC provided for herein, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup date" under Section 860(d)(1) of the Code, or (ii) any REMIC created hereunder to fail to qualify as a REMIC at any time that any Certificate is outstanding. With respect to any Mortgage Loan repurchased by the Depositor pursuant to this Agreement or by the Seller pursuant to the Sale Agreement, the principal portion of the funds received by the Servicer in respect of such repurchase of a Mortgage Loan will be considered a Principal Prepayment and shall be deposited by the Servicer in the Certificate Account pursuant to Section 3.05. The Trustee, upon receipt of the full amount of the Purchase Price for a Deleted Mortgage Loan, or upon receipt of the Mortgage File for a Replacement Mortgage Loan substituted for a Deleted Mortgage Loan, shall release or cause to be released and reassign to the Depositor or the Seller, as applicable, the related Mortgage File for the Deleted Mortgage Loan and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation or warranty, as shall be necessary to vest in such party or its designee or assignee title to any Deleted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Trustee, and the Trustee shall not have any further responsibility with respect to the Mortgage File relating to such Deleted Mortgage Loan. With respect to each Replacement Mortgage Loan to be delivered to the Trustee pursuant to the terms of this Article II in exchange for a Deleted Mortgage Loan: (i) the Depositor or the Seller, as applicable, must deliver to the Trustee the Mortgage File for the Replacement Mortgage Loan containing the documents set forth in Section 2.01 along with a written certification certifying as to the delivery of such Mortgage File and containing the granting language set forth in the first sentence of Section 2.01; and (ii) the Depositor will be deemed to have made, with respect to such Replacement Mortgage Loan, each of the representations and warranties made by it with respect to the related Deleted Mortgage Loan. The Trustee shall review the Mortgage File with respect to each Replacement Mortgage Loan and certify to the NIM Insurer and the Depositor that all documents required by Section 2.01 have been executed and received. For any month in which the Seller substitutes one or more Replacement Mortgage Loans for one or more Deleted Mortgage Loans, the Seller will determine the amount (if any) by which the aggregate principal balance of all such Replacement Mortgage Loans as of the date of substitution and the aggregate prepayment penalties with respect to such Replacement Mortgage Loans is less than the aggregate Stated Principal Balance (after application of the principal portion of the Scheduled Payment due in the month of substitution) and aggregate prepayment penalties of all such Deleted Mortgage Loans. An amount equal to the aggregate of the deficiencies described in the preceding sentence (such amount, the "Substitution Adjustment Amount") shall be delivered by the Seller to the Servicer for deposit into the Collection Account on the Determination Date for the Distribution Date relating to the Prepayment Period during which the related Mortgage Loan became required to be purchased or replaced hereunder. The Seller shall give or cause to be given written notice to the Certificateholders and the NIM Insurer that such substitution has taken place, shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Replacement Mortgage Loan or Replacement Mortgage Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the NIM Insurer and the Trustee. Upon such substitution by the Seller, such Replacement Mortgage Loan or Replacement Mortgage Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and the Sale Agreement, including all applicable representations and warranties thereof included in the Sale Agreement as of the date of substitution. In addition, the Seller shall obtain at its own expense and deliver to the Trustee and the NIM Insurer an Opinion of Counsel addressed to the Trustee and the NIM Insurer to the effect that such substitution will not (a) cause any federal tax to be imposed on the Trust Fund or any REMIC provided for herein, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup date" under Section 860G(d)(1) of the Code or (b) adversely affect the status of any REMIC provided for herein as a REMIC. If any such Opinion of Counsel can not be delivered, then such substitution may only be effected at such time as the required Opinion of Counsel can be given.
(d) It is understood and agreed that the representations, warranties and indemnification (i) set forth in this Section 2.03 and (ii) of the Seller and the Depositor set forth in the Sale Agreement and assigned to the Trustee by the Depositor hereunder shall each survive delivery of the Mortgage Files and the Assignment of Mortgage of each Mortgage Loan to the Trustee and shall continue throughout the term of this Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Inc)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, represents and warrants and covenants to the Trustee, for its own benefit and the benefit of the Certificateholders, and to the Master Servicer and the Special ServicerTrustee as follows, as of the Closing Date, that:date hereof
(i) The Depositor is duly organized and is validly existing as a corporation duly organized, validly existing and in good standing under the laws of the State of DelawareDelaware and has full power and authority (corporate and other) 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 and the Sale Agreement.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full corporate power and authority to execute, deliver and perform, and to enter into and consummate all the transactions contemplated by by, this Agreement, Agreement and the Sale Agreement and has duly authorized authorized, by all necessary corporate action on its part, the execution, delivery and performance of this Agreement and the Sale Agreement, ; and has duly executed this Agreement and delivered this Agreement.
(iv) This the Sale Agreement, assuming the due authorization, execution and delivery hereof by each of the other parties hereto, constitutes a validlegal, legal valid and binding obligation of the Depositor, enforceable against the Depositor in accordance with the terms hereofits terms, subject subject, as to enforceability, to (Ai) applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally, generally and (Bii) general principles of equity, regardless of whether such enforcement is considered sought in a proceeding in equity or at law.
(viii) The Depositor is not in violation of, and its execution and delivery of this Agreement and its performance the Sale Agreement by the Depositor, the consummation of the transactions contemplated by this Agreement and the Sale Agreement, and the fulfillment of or compliance with the terms hereof are in the ordinary course of this Agreement business of the Depositor and will not (A) result in a material breach of any term or provision of the charter or by-laws of the Depositor or (B) materially conflict with, result in a violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Depositor is a party or by which it may be bound or (C) constitute a material violation ofof any statute, any law, any order or decree regulation applicable to the Depositor of any court court, regulatory body, administrative agency or arbitergovernmental body having jurisdiction over the Depositor; and the Depositor is not in breach or violation of any material indenture or other material agreement or instrument, or any order, regulation or demand in violation of any federalstatute, state order or local regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or regulatory authority, which violation, in violation may materially impair the Depositor's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Depositor to perform or meet any of its obligations under this Agreement or the financial condition of the DepositorAgreement.
(vi) The transfer of the Trust Mortgage Loans to the Trustee as contemplated herein requires no regulatory approval, other than any such approvals as have been obtained, and is not subject to any bulk transfer or similar law in effect in any applicable jurisdiction.
(vii) The Depositor is not transferring the Trust Mortgage Loans to the Trustee with any intent to hinder, delay or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left with unreasonably small assets or capital with which to engage in and conduct its business.
(x) The Depositor 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.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xiiiv) No litigation is pending or, to the best of the Depositor's knowledge, threatened threatened, against the Depositor that, if determined adversely to the Depositor, that would prohibit the Depositor from entering into this Agreement or that, in the Depositor's good faith and reasonable judgment, is likely to materially and adversely affect either the execution, delivery or enforceability of this Agreement and the Sale Agreement or the ability of the Depositor to perform its obligations under this Agreement or and the financial condition of Sale Agreement in accordance with the Depositorterms hereof.
(xiiiv) 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 Depositor of, or compliance by the Depositor with, this Agreement and the Sale Agreement or the consummation of the transactions contemplated hereby, or if any actions that are such consent, approval, authorization or order is required, the express responsibility of another party hereunder or under Depositor has obtained the same. The Depositor hereby represents and warrants to the Trustee with respect to each Mortgage Loan Purchase Agreements, and further except for actions that the Depositor is expressly permitted to complete subsequent to as of the Closing Date, the Depositor has taken all actions required under applicable law to effectuate and following the transfer of the Trust Mortgage Loans by the Depositor to the Trustee.
(xiv) Immediately prior to the transfer of the UBS Trust Mortgage Loans to it by the Trust pursuant to this Agreement (and assuming that the UBS Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Trust Mortgage LoanSponsor, free and clear of all liens, claims, encumbrances and other interests), (A) the Depositor had good title to the Mortgage Loans and marketable title tothe Mortgage Notes were subject to no offsets, and was the sole owner and holder ofclaims, each UBS Trust liens, mortgage, pledge, charge, security interest, defenses or counterclaims.
(vi) Each Mortgage Loan; and (B) the Depositor Loan in Group One has full right and authority to sell, assign and transfer the UBS Trust Mortgage Loans, exclusive a Stated Principal Balance as of the servicing rights pertaining theretoCut-off Date that complies with the loan limitations of Xxxxxx Xxx and Xxxxxxx Mac as in effect on the Cut-off Date.
(b) The Depositor hereby makes To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of a representation or warranty of the TrusteeSponsor under the Sale Agreement, for the only right or remedy of the Trustee or of any Certificateholder shall be the Trustee's own benefit and right to enforce the benefit obligations of the Certificateholders, Sponsor under any applicable representation or warranty made by it. The Trustee acknowledges that the Depositor shall have no obligation or liability with respect to each Xxxxxx Trust Mortgage Loan only, the representations and warranties shown on Schedule II hereto, as any breach of the Closing Date any representation or such other date specified in the particular representation and warranty, subject warranty with respect to the exceptions set forth on Schedule III hereto Mortgage Loans (the headings except as set forth in Schedule II hereto with respect to each representation and warranty being for convenience of reference only and in no way limiting, expanding or otherwise affecting the scope or subject matter thereofSection 2.03(a)(v). Except as expressly provided in Section 2.04(a), the Depositor does not make ) under any representations or warranties regarding the UBS Trust Mortgage Loanscircumstances.
(c) The representations, warranties and covenants of the Depositor set forth in or made pursuant to Section 2.04(a) and Section 2.04(b) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any the Depositor, the Servicer, or the Trustee of a breach of any of such representationsrepresentations and warranties set forth in the Sale Agreement that adversely and materially affects the value of the related Mortgage Loan, warranties and covenantsprepayment charges or the interests of the Certificateholders, the party discovering such breach shall give prompt written notice thereof to the other parties. Within ninety (90) days of the discovery of a breach of any representation or warranty given to the Trustee by the Depositor, the Sponsor and assigned by the Depositor to the Trustee, the Depositor, or the Sponsor shall either (a) cure such breach in all material respects, (b) repurchase such Mortgage Loan or any property acquired in respect thereof from the Trustee at the Purchase Price or (c) within the two year period following the Closing Date, substitute a Replacement Mortgage Loan for the affected Mortgage Loan. In the event of discovery of a breach of any representation and warranty of the Sponsor or the Depositor, the Trustee shall enforce its rights under the Sale Agreement or thereunder for the benefit of Certificateholders. In the event of a breach of the representations and warranties with respect to the Mortgage Loans set forth in a Sale Agreement, the Trustee shall enforce the right of the Issuing Entity to be indemnified for such breach of representation and warranty. In the event that such breach relates solely to the unenforceability of a prepayment charge, amounts received in respect of such indemnity up to the amount of such prepayment charge shall be distributed pursuant to Section 4.04(b)(i)(B). As provided in the Sale Agreement, if the Sponsor substitutes for a Mortgage Loan for which there is a breach of any representations and warranties which adversely and materially affects the value of such Mortgage Loan and such substitute mortgage loan is not a Replacement Mortgage Loan, under the terms of the Sale Agreement, the Sponsor will, in exchange for such substitute Mortgage Loan, (i) provide the applicable Purchase Price for the affected Mortgage Loan or (ii) within two years of the Closing Date, substitute such affected Mortgage Loan with a Replacement Mortgage Loan. Any such substitution shall not be effected prior to the additional delivery to the Trustee of a Request for Release substantially in the form of Exhibit I and shall not be effected unless it is within two years of the Startup Day. As provided in the Sale Agreement, the Sponsor indemnifies and holds the Issuing Entity, the Trustee, the Depositor, the Servicer and each Certificateholder harmless against any and all taxes, claims, losses, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, fees and expenses that the Issuing Entity, the Trustee, the Depositor, the Servicer and any Certificateholder may sustain in connection with any actions of the Sponsor relating to a repurchase of a Mortgage Loan other than in compliance with the terms of this Section 2.03 and the Sale Agreement, to the extent that any such action causes (i) any federal or state tax to be imposed on the Issuing Entity or any REMIC provided for herein, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup day" under Section 860G(d)(1) of the Code, or (ii) any REMIC created hereunder to fail to qualify as a REMIC at any time that any Certificate is outstanding. With respect to any Mortgage Loan repurchased by the Depositor pursuant to this Agreement or by the Sponsor pursuant to the Sale Agreement, the principal portion of the funds received by the Servicer in respect of such repurchase of a Mortgage Loan will be considered a Principal Prepayment and shall be deposited by the Servicer in the Certificate Account pursuant to Section 3.05. The Trustee, upon receipt of the full amount of the Purchase Price for a Deleted Mortgage Loan, or upon receipt of the Mortgage File for a Replacement Mortgage Loan substituted for a Deleted Mortgage Loan, shall release or cause to be released and reassign to the Depositor or the Sponsor, as applicable, the related Mortgage File for the Deleted Mortgage Loan and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation or warranty, as shall be necessary to vest in such party or its designee or assignee title to any Deleted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Trustee, and the Trustee shall not have any further responsibility with respect to the Mortgage File relating to such Deleted Mortgage Loan. With respect to each Replacement Mortgage Loan to be delivered to the Trustee pursuant to the terms of this Article II in exchange for a Deleted Mortgage Loan: (i) the Depositor or the Sponsor, as applicable, must deliver to the Trustee the Mortgage File for the Replacement Mortgage Loan containing the documents set forth in Section 2.01 along with a written certification certifying as to the delivery of such Mortgage File and containing the granting language set forth in the first sentence of Section 2.01; and (ii) the Depositor will be deemed to have made, with respect to such Replacement Mortgage Loan, each of the representations and warranties made by it with respect to the related Deleted Mortgage Loan. The Trustee shall review the Mortgage File with respect to each Replacement Mortgage Loan and certify to the Depositor that all documents required by Section 2.01 have been executed and received. 66 For any month in which the Sponsor substitutes one or more Replacement Mortgage Loans for one or more Deleted Mortgage Loans, the Sponsor will determine the amount (if any) by which the aggregate principal balance of all such Replacement Mortgage Loans as of the date of substitution and the aggregate prepayment charges with respect to such Replacement Mortgage Loans is less than the aggregate Stated Principal Balance (after application of the principal portion of the Scheduled Payment due in the month of substitution) and aggregate prepayment charges of all such Deleted Mortgage Loans. An amount equal to the aggregate of the deficiencies described in the preceding sentence (such amount, the "Substitution Adjustment Amount") shall be delivered by the Sponsor to the Servicer for deposit into the Collection Account on the Determination Date for the Distribution Date relating to the Prepayment Period during which the related Mortgage Loan became required to be purchased or replaced hereunder. The Sponsor shall give or cause to be given written notice to the Certificateholders that such substitution has taken place, shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Replacement Mortgage Loan or Replacement Mortgage Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the Trustee. Upon such substitution by the Sponsor, such Replacement Mortgage Loan or Replacement Mortgage Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and the Sale Agreement, including all applicable representations and warranties thereof included in the Sale Agreement as of the date of substitution. In addition, the Sponsor shall obtain at its own expense and deliver to the Trustee an Opinion of Counsel addressed to the Trustee to the effect that such substitution will not (a) cause any federal tax to be imposed on the Issuing Entity or any REMIC provided for herein, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup day" under Section 860G(d)(1) of the Code or (b) adversely affect the status of any REMIC provided for herein as a REMIC. If any such Opinion of Counsel can not be delivered, then such substitution may only be effected at such time as the required Opinion of Counsel can be given.
(d) It is understood and agreed that the representations, warranties and indemnification (i) set forth in this Section 2.03 and (ii) of the Sponsor and the Depositor set forth in the Sale Agreement and assigned to the Trustee by the Depositor hereunder shall each survive delivery of the Mortgage Files and the Assignment of Mortgage of each Mortgage Loan to the Trustee and shall continue throughout the term of this Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Specialty Underwriting & Residential Finance Trust Series 2006-Bc4)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, represents and warrants and covenants to the Trustee, for its own benefit and the benefit of the Certificateholders, and to the Master Servicer and the Special ServicerTrustee as follows, as of the Closing Date, that:date hereof
(i) The Depositor is duly organized and is validly existing as a corporation duly organized, validly existing and in good standing under the laws of the State of DelawareDelaware and has full power and authority (corporate and other) 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 and the Sale Agreement.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full corporate power and authority to execute, deliver and perform, and to enter into and consummate all the transactions contemplated by by, this Agreement, Agreement and the Sale Agreement and has duly authorized authorized, by all necessary corporate action on its part, the execution, delivery and performance of this Agreement and the Sale Agreement, ; and has duly executed this Agreement and delivered this Agreement.
(iv) This the Sale Agreement, assuming the due authorization, execution and delivery hereof by each of the other parties hereto, constitutes a validlegal, legal valid and binding obligation of the Depositor, enforceable against the Depositor in accordance with the terms hereofits terms, subject subject, as to enforceability, to (Ai) applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally, generally and (Bii) general principles of equity, regardless of whether such enforcement is considered sought in a proceeding in equity or at law.
(viii) The Depositor is not in violation of, and its execution and delivery of this Agreement and its performance the Sale Agreement by the Depositor, the consummation of the transactions contemplated by this Agreement and the Sale Agreement, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Depositor and will not (A) result in a material breach of any term or provision of the charter or by-laws of the Depositor or (B) materially conflict with, result in a violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Depositor is a party or by which it may be bound or (C) constitute a material violation of any statute, order or regulation applicable to the Depositor of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Depositor; and the Depositor is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Depositor's ability to perform or meet any of its obligations under this Agreement.
(iv) No litigation is pending, or, to the best of the Depositor's knowledge, threatened, against the Depositor that would materially and adversely affect the execution, delivery or enforceability of this Agreement will not constitute a violation of, any law, any order and the Sale Agreement or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Depositor's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Depositor to perform its obligations under this Agreement and the Sale Agreement in accordance with the terms hereof.
(v) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Depositor of, or compliance by the Depositor with, this Agreement and the Sale Agreement or the financial condition consummation of the Depositortransactions contemplated hereby, or if any such consent, approval, authorization or order is required, the Depositor has obtained the same. The Depositor hereby represents and warrants to the Trustee with respect to each Mortgage Loan as of the Closing Date, and following the transfer of the Mortgage Loans to it by the Seller, the Depositor had good title to the Mortgage Loans and the Mortgage Notes were subject to no offsets, claims, liens, mortgage, pledge, charge, security interest, defenses or counterclaims.
(vi) The transfer Each Mortgage Loan in Group One has a Stated Principal Balance as of the Trust Mortgage Loans to Cut-off Date that complies with the Trustee loan limitations of Fannie Mae and Freddie Mac as contemplated herein requires no regulatory approval, other than any such approvals as have been obtained, and is not subject to any bulk transfer or similar law in effect in any applicable jurisdiction.
(vii) The Depositor is not transferring on the Trust Mortgage Loans to the Trustee with any intent to hinder, delay or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left with unreasonably small assets or capital with which to engage in and conduct its business.
(x) The Depositor 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.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xii) No litigation is pending or, to the best of the Depositor's knowledge, threatened against the Depositor that, if determined adversely to the Depositor, would prohibit the Depositor from entering into this Agreement or that, in the Depositor's good faith and reasonable judgment, is likely to materially and adversely affect either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(xiii) Except for any actions that are the express responsibility of another party hereunder or under the Mortgage Loan Purchase Agreements, and further except for actions that the Depositor is expressly permitted to complete subsequent to the Closing Date, the Depositor has taken all actions required under applicable law to effectuate the transfer of the Trust Mortgage Loans by the Depositor to the Trustee.
(xiv) Immediately prior to the transfer of the UBS Trust Mortgage Loans to the Trust pursuant to this Agreement (and assuming that the UBS Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Trust Mortgage Loan, free and clear of all liens, claims, encumbrances and other interests), (A) the Depositor had good and marketable title to, and was the sole owner and holder of, each UBS Trust Mortgage Loan; and (B) the Depositor has full right and authority to sell, assign and transfer the UBS Trust Mortgage Loans, exclusive of the servicing rights pertaining theretoCut-off Datx.
(b) The Depositor hereby makes Xx xxe extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of a representation or warranty of the TrusteeSeller under the Sale Agreement, for the only right or remedy of the Trustee or of any Certificateholder shall be the Trustee's own benefit and right to enforce the benefit obligations of the Certificateholders, Seller under any applicable representation or warranty made by it. The Trustee acknowledges that the Depositor shall have no obligation or liability with respect to each Xxxxxx Trust Mortgage Loan only, the representations and warranties shown on Schedule II hereto, as any breach of the Closing Date any representation or such other date specified in the particular representation and warranty, subject warranty with respect to the exceptions set forth on Schedule III hereto Mortgage Loans (the headings except as set forth in Schedule II hereto with respect to each representation and warranty being for convenience of reference only and in no way limiting, expanding or otherwise affecting the scope or subject matter thereofSection 2.03(a)(v). Except as expressly provided in Section 2.04(a), the Depositor does not make ) under any representations or warranties regarding the UBS Trust Mortgage Loanscircumstances.
(c) The representations, warranties and covenants of the Depositor set forth in or made pursuant to Section 2.04(a) and Section 2.04(b) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any the Depositor, the Servicer, or the Trustee of a breach of any of such representationsrepresentations and warranties set forth in the Sale Agreement that adversely and materially affects the value of the related Mortgage Loan, warranties and covenantsprepayment charges or the interests of the Certificateholders, the party discovering such breach shall give prompt written notice thereof to the other parties. Within 90 days of the discovery of a breach of any representation or warranty given to the Trustee by the Depositor, the Seller and assigned to the Trustee, the Depositor, or the Seller shall either (a) cure such breach in all material respects, (b) repurchase such Mortgage Loan or any property acquired in respect thereof from the Trustee at the Purchase Price or (c) within the two year period following the Closing Date, substitute a Replacement Mortgage Loan for the affected Mortgage Loan. In the event of discovery of a breach of any representation and warranty of the Seller or the Depositor, the Trustee shall enforce its rights under the Sale Agreement or thereunder for the benefit of Certificateholders. In the event of a breach of the representations and warranties with respect to the Mortgage Loans set forth in a Sale Agreement, the Trustee shall enforce the right of the Trust Fund to be indemnified for such breach of representation and warranty. In the event that such breach relates solely to the unenforceability of a prepayment charge, amounts received in respect of such indemnity up to the amount of such prepayment charge shall be distributed pursuant to Section 4.04(b)(i)(B). As provided in the Sale Agreement, if the Seller substitutes 53 for a Mortgage Loan for which there is a breach of any representations and warranties which adversely and materially affects the value of such Mortgage Loan and such substitute mortgage loan is not a Replacement Mortgage Loan, under the terms of the Sale Agreement, the Seller will, in exchange for such substitute Mortgage Loan, (i) provide the applicable Purchase Price for the affected Mortgage Loan or (ii) within two years of the Closing Date, substitute such affected Mortgage Loan with a Replacement Mortgage Loan. Any such substitution shall not be effected prior to the additional delivery to the Trustee of a Request for Release substantially in the form of Exhibit I and shall not be effected unless it is within two years of the Startup Day. As provided in the Sale Agreement, the Seller indemnifies and holds the Trust Fund, the Trustee, the Depositor, the Servicer and each Certificateholder harmless against any and all taxes, claims, losses, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, fees and expenses that the Trust Fund, the Trustee, the Depositor, the Servicer and any Certificateholder may sustain in connection with any actions of the Seller relating to a repurchase of a Mortgage Loan other than in compliance with the terms of this Section 2.03 and the Sale Agreement, to the extent that any such action causes (i) any federal or state tax to be imposed on the Trust Fund or any REMIC provided for herein, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup day" under Section 860G(d)(1) of the Code, or (ii) any REMIC created hereunder to fail to qualify as a REMIC at any time that any Certificate is outstanding. With respect to any Mortgage Loan repurchased by the Depositor pursuant to this Agreement or by the Seller pursuant to the Sale Agreement, the principal portion of the funds received by the Servicer in respect of such repurchase of a Mortgage Loan will be considered a Principal Prepayment and shall be deposited by the Servicer in the Certificate Account pursuant to Section 3.05. The Trustee, upon receipt of the full amount of the Purchase Price for a Deleted Mortgage Loan, or upon receipt of the Mortgage File for a Replacement Mortgage Loan substituted for a Deleted Mortgage Loan, shall release or cause to be released and reassign to the Depositor or the Seller, as applicable, the related Mortgage File for the Deleted Mortgage Loan and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation or warranty, as shall be necessary to vest in such party or its designee or assignee title to any Deleted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Trustee, and the Trustee shall not have any further responsibility with respect to the Mortgage File relating to such Deleted Mortgage Loan. With respect to each Replacement Mortgage Loan to be delivered to the Trustee pursuant to the terms of this Article II in exchange for a Deleted Mortgage Loan: (i) the Depositor or the Seller, as applicable, must deliver to the Trustee the Mortgage File for the Replacement Mortgage Loan containing the documents set forth in Section 2.01 along with a written certification certifying as to the delivery of such Mortgage File and containing the granting language set forth in the first sentence of Section 2.01; and (ii) the Depositor will be deemed to have made, with respect to such Replacement Mortgage Loan, each of the representations and warranties made by it with respect to the related Deleted Mortgage Loan. The Trustee shall review the Mortgage File with respect to each Replacement Mortgage Loan and certify to the Depositor that all documents required by Section 2.01 have been executed and received. For any month in which the Seller substitutes one or more Replacement Mortgage Loans for one or more Deleted Mortgage Loans, the Seller will determine the amount (if any) by which the aggregate principal balance of all such Replacement Mortgage Loans as of the date of substitution and the aggregate prepayment charges with respect to such Replacement Mortgage Loans is less than the aggregate Stated Principal Balance (after application of the principal portion of the Scheduled Payment due in the month of substitution) and aggregate prepayment charges of all such Deleted Mortgage Loans. An amount equal to the aggregate of the deficiencies described in the preceding sentence (such amount, the "Substitution Adjustment Amount") shall be delivered by the Seller to the Servicer for deposit into the Collection Account on the Determination Date for the Distribution Date relating to the Prepayment Period during which the related Mortgage Loan became required to be purchased or replaced hereunder. The Seller shall give or cause to be given written notice to the Certificateholders that such substitution has taken place, shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Replacement Mortgage Loan or Replacement Mortgage Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the Trustee. Upon such substitution by the Seller, such Replacement Mortgage Loan or Replacement Mortgage Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and the Sale Agreement, including all applicable representations and warranties thereof included in the Sale Agreement as of the date of substitution. In addition, the Seller shall obtain at its own expense and deliver to the Trustee an Opinion of Counsel addressed to the Trustee to the effect that such substitution will not (a) cause any federal tax to be imposed on the Trust Fund or any REMIC provided for herein, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup day" under Section 860G(d)(1) of the Code or (b) adversely affect the status of any REMIC provided for herein as a REMIC. If any such Opinion of Counsel can not be delivered, then such substitution may only be effected at such time as the required Opinion of Counsel can be given.
(d) It is understood and agreed that the representations, warranties and indemnification (i) set forth in this Section 2.03 and (ii) of the Seller and the Depositor set forth in the Sale Agreement and assigned to the Trustee by the Depositor hereunder shall each survive delivery of the Mortgage Files and the Assignment of Mortgage of each Mortgage Loan to the Trustee and shall continue throughout the term of this Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Specialty Underwriting & Residential Finance Trust Series 2005-Bc3)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, represents and warrants and covenants to the Trustee, for its own benefit and the benefit of the Certificateholders, and to the Master Servicer and the Special ServicerTrustee as follows, as of the Closing Date, thatdate hereof:
(i) The Depositor is duly organized and is validly existing as a corporation duly organized, validly existing and in good standing under the laws of the State of DelawareDelaware and has full power and authority (corporate and other) 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 and the Sale Agreement.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full corporate power and authority to execute, deliver and perform, and to enter into and consummate all the transactions contemplated by by, this Agreement, Agreement and the Sale Agreement and has duly authorized authorized, by all necessary corporate action on its part, the execution, delivery and performance of this Agreement and the Sale Agreement, ; and has duly executed this Agreement and delivered this Agreement.
(iv) This the Sale Agreement, assuming the due authorization, execution and delivery hereof by each of the other parties hereto, constitutes a validlegal, legal valid and binding obligation of the Depositor, enforceable against the Depositor in accordance with the terms hereofits terms, subject subject, as to enforceability, to (Ai) applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally, generally and (Bii) general principles of equity, regardless of whether such enforcement is considered sought in a proceeding in equity or at law.
(viii) The Depositor is not in violation of, and its execution and delivery of this Agreement and its performance the Sale Agreement by the Depositor, the consummation of the transactions contemplated by this Agreement and the Sale Agreement, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Depositor and will not (A) result in a material breach of any term or provision of the charter or by-laws of the Depositor or (B) materially conflict with, result in a violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Depositor is a party or by which it may be bound or (C) constitute a material violation of any statute, order or regulation applicable to the Depositor of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Depositor; and the Depositor is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Depositor's ability to perform or meet any of its obligations under this Agreement.
(iv) No litigation is pending, or, to the best of the Depositor's knowledge, threatened, against the Depositor that would materially and adversely affect the execution, delivery or enforceability of this Agreement will not constitute a violation of, any law, any order and the Sale Agreement or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Depositor's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Depositor to perform its obligations under this Agreement or and the financial condition of Sale Agreement in accordance with the Depositorterms hereof.
(viv) The transfer No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Depositor of, or compliance by the Depositor with, this Agreement and the Sale Agreement or the consummation of the Trust Mortgage Loans to the Trustee as transactions contemplated herein requires no regulatory hereby, or if any such consent, approval, other than any such approvals as have been obtainedauthorization or order is required, and is not subject to any bulk transfer or similar law in effect in any applicable jurisdiction.
(vii) the Depositor has obtained the same. The Depositor is not transferring the Trust Mortgage Loans hereby represents and warrants to the Trustee with any intent respect to hinder, delay or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left with unreasonably small assets or capital with which to engage in and conduct its business.
(x) The Depositor 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.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xii) No litigation is pending or, to the best of the Depositor's knowledge, threatened against the Depositor that, if determined adversely to the Depositor, would prohibit the Depositor from entering into this Agreement or that, in the Depositor's good faith and reasonable judgment, is likely to materially and adversely affect either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(xiii) Except for any actions that are the express responsibility of another party hereunder or under the each Mortgage Loan Purchase Agreements, and further except for actions that the Depositor is expressly permitted to complete subsequent to as of the Closing Date, the Depositor has taken all actions required under applicable law to effectuate and following the transfer of the Trust Mortgage Loans by the Depositor to the Trustee.
(xiv) Immediately prior to the transfer of the UBS Trust Mortgage Loans to it by the Trust pursuant to this Agreement (and assuming that the UBS Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Trust Mortgage LoanSeller, free and clear of all liens, claims, encumbrances and other interests), (A) the Depositor had good title to the Mortgage Loans and marketable title tothe Mortgage Notes were subject to no offsets, and was the sole owner and holder ofclaims, each UBS Trust Mortgage Loan; and (B) the Depositor has full right and authority to sellliens, assign and transfer the UBS Trust Mortgage Loansmortgage, exclusive of the servicing rights pertaining theretopledge, charge, security interest, defenses or counterclaims.
(b) The Depositor hereby makes representations and warranties of each Transferor with respect to the Trusteerelated Mortgage Loans in the applicable Transfer Agreement, for which have been assigned to the Trustee's own benefit and the benefit Trustee hereunder, were made as of the Certificateholdersdate specified in the applicable Transfer Agreement and brought forward to the Closing Date pursuant to the related Bring Down Letter. The representations and warranties of each Transferor with respect to the Mortgage Loans contained in the Bring Down Letter were made as of the Closing Date. The representations and warranties of the Seller with respect to the Mortgage Loans contained in the Sale Agreement were made as of the Closing Date. To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of both (i) a representation or warranty of the applicable Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under the Sale Agreement, the obligations of the Seller under the Sale Agreement shall be enforced and to the extent the Seller does not fulfill its contracted obligations then the obligations of the applicable Transferor shall be enforced under any applicable representation or warranty made by it. The Trustee acknowledges that the Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Mortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in the related Transfer Agreement, without regard to whether the Transferors fulfills its contractual obligations in respect of such representation or warranty. The Trustee also acknowledges that the Seller shall have no obligation or liability with respect to any breach of a representation or warranty made solely by the Transferors with respect to the Mortgage Loans, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty. The Trustee further acknowledges that the Depositor shall have no obligation or liability with respect to any breach of any representation or warranty with respect to the Mortgage Loans under any circumstances. In addition to the representations and warranties of the Transferors in the Transfer Agreements that were brought forward to the Closing Date pursuant to the Bring Down Letter, with respect to each Xxxxxx Trust Mortgage Loan onlyLoan, the representations and warranties shown on Schedule II heretoeach Transferor made certain additional covenants regarding such Mortgage Loan, as of the Closing Date or such other date specified in the particular representation and warranty, subject to the exceptions set forth on Schedule III hereto (the headings set forth in Schedule II hereto with the related Transfer Agreement. With respect to each representation and warranty being for convenience of reference only and in no way limiting, expanding or otherwise affecting the scope or subject matter thereof). Except as expressly provided in Section 2.04(a), the Depositor does not make any representations or warranties regarding the UBS Trust Mortgage Loans.
(c) The representations, warranties and covenants of the Depositor set forth in or made pursuant to Section 2.04(a) and Section 2.04(b) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any breach of any such additional covenants that materially and adversely affects the interests of such representations, warranties and covenants, the party discovering such breach shall give prompt written notice thereof to the other parties.the
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Inc)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, represents and warrants and covenants to the Trustee, for its own benefit and the benefit of the Certificateholders, and to the Master Servicer and the Special ServicerTrustee as follows, as of the Closing Date, thatdate hereof:
(i) The Depositor is duly organized and is validly existing as a corporation duly organized, validly existing and in good standing under the laws of the State of DelawareDelaware and has full power and authority (corporate and other) 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 and the Sale Agreement.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full corporate power and authority to execute, deliver and perform, and to enter into and consummate all the transactions contemplated by by, this Agreement, Agreement and the Sale Agreement and has duly authorized authorized, by all necessary corporate action on its part, the execution, delivery and performance of this Agreement and the Sale Agreement, ; and has duly executed this Agreement and delivered this Agreement.
(iv) This the Sale Agreement, assuming the due authorization, execution and delivery hereof by each of the other parties hereto, constitutes a validlegal, legal valid and binding obligation of the Depositor, enforceable against the Depositor in accordance with the terms hereofits terms, subject subject, as to enforceability, to (Ai) applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally, generally and (Bii) general principles of equity, regardless of whether such enforcement is considered sought in a proceeding in equity or at law.
(viii) The Depositor is not in violation of, and its execution and delivery of this Agreement and its performance the Sale Agreement by the Depositor, the consummation of the transactions contemplated by this Agreement and the Sale Agreement, and the fulfillment of or compliance with the terms hereof are in the ordinary course of this Agreement business of the Depositor and will not (A) result in a material breach of any term or provision of the charter or by-laws of the Depositor or (B) materially conflict with, result in a violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Depositor is a party or by which it may be bound or (C) constitute a material violation ofof any statute, any law, any order or decree regulation applicable to the Depositor of any court court, regulatory body, administrative agency or arbitergovernmental body having jurisdiction over the Depositor; and the Depositor is not in breach or violation of any material indenture or other material agreement or instrument, or any order, regulation or demand in violation of any federalstatute, state order or local regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or regulatory authority, which violation, in violation may materially impair the Depositor's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Depositor to perform or meet any of its obligations under this Agreement or the financial condition of the DepositorAgreement.
(vi) The transfer of the Trust Mortgage Loans to the Trustee as contemplated herein requires no regulatory approval, other than any such approvals as have been obtained, and is not subject to any bulk transfer or similar law in effect in any applicable jurisdiction.
(vii) The Depositor is not transferring the Trust Mortgage Loans to the Trustee with any intent to hinder, delay or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left with unreasonably small assets or capital with which to engage in and conduct its business.
(x) The Depositor 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.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xiiiv) No litigation is pending or, to the best of the Depositor's knowledge, threatened threatened, against the Depositor that, if determined adversely to the Depositor, that would prohibit the Depositor from entering into this Agreement or that, in the Depositor's good faith and reasonable judgment, is likely to materially and adversely affect either the execution, delivery or enforceability of this Agreement and the Sale Agreement or the ability of the Depositor to perform its obligations under this Agreement or and the financial condition of Sale Agreement in accordance with the Depositorterms hereof.
(xiiiv) 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 Depositor of, or compliance by the Depositor with, this Agreement and the Sale Agreement or the consummation of the transactions contemplated hereby, or if any actions that are such consent, approval, authorization or order is required, the express responsibility of another party hereunder or under Depositor has obtained the same. The Depositor hereby represents and warrants to the Trustee with respect to each Mortgage Loan Purchase Agreements, and further except for actions that the Depositor is expressly permitted to complete subsequent to as of the Closing Date, the Depositor has taken all actions required under applicable law to effectuate and following the transfer of the Trust Mortgage Loans by the Depositor to the Trustee.
(xiv) Immediately prior to the transfer of the UBS Trust Mortgage Loans to it by the Trust pursuant to this Agreement (and assuming that the UBS Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Trust Mortgage LoanSponsor, free and clear of all liens, claims, encumbrances and other interests), (A) the Depositor had good and marketable title to, and was the sole owner and holder of, each UBS Trust Mortgage Loan; and (B) the Depositor has full right and authority to sell, assign and transfer the UBS Trust Mortgage Loans, exclusive of the servicing rights pertaining thereto.
(b) The Depositor hereby makes to the Trustee, for the Trustee's own benefit Mortgage Loans and the benefit of the Certificateholders, with respect to each Xxxxxx Trust Mortgage Loan only, the representations and warranties shown on Schedule II hereto, as of the Closing Date or such other date specified in the particular representation and warranty, Notes were subject to the exceptions set forth on Schedule III hereto (the headings set forth in Schedule II hereto with respect to each representation and warranty being for convenience of reference only and in no way limitingoffsets, expanding claims, liens, mortgage, pledge, charge, security interest, defenses or otherwise affecting the scope or subject matter thereof). Except as expressly provided in Section 2.04(a), the Depositor does not make any representations or warranties regarding the UBS Trust Mortgage Loanscounterclaims.
(c) The representations, warranties and covenants of the Depositor set forth in or made pursuant to Section 2.04(a) and Section 2.04(b) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any breach of any of such representations, warranties and covenants, the party discovering such breach shall give prompt written notice thereof to the other parties.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Trust Series 2006-Ab1)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, represents and warrants and covenants to the TrusteeServicer, for its own benefit the Master Servicer, the Securities Administrator and the benefit of the Certificateholders, and to the Master Servicer and the Special ServicerTrustee as follows, as of the Closing Date, thatdate hereof:
(i) The Depositor is duly organized and is validly existing as a corporation duly organized, validly existing and in good standing under the laws of the State of DelawareDelaware and has full power and authority (corporate and other) 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 and the Sale Agreement.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full corporate power and authority to execute, deliver and perform, and to enter into and consummate all the transactions contemplated by by, this Agreement, Agreement and the Sale Agreement and has duly authorized authorized, by all necessary corporate action on its part, the execution, delivery and performance of this Agreement and the Sale Agreement, ; and has duly executed this Agreement and delivered this Agreement.
(iv) This the Sale Agreement, assuming the due authorization, execution and delivery hereof by each of the other parties hereto, constitutes a validlegal, legal valid and binding obligation of the Depositor, enforceable against the Depositor in accordance with the terms hereofits terms, subject subject, as to enforceability, to (Ai) applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally, generally and (Bii) general principles of equity, regardless of whether such enforcement is considered sought in a proceeding in equity or at law.
(viii) The Depositor is not in violation of, and its execution and delivery of this Agreement and its performance the Sale Agreement by the Depositor, the consummation of the transactions contemplated by this Agreement and the Sale Agreement, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Depositor and will not (A) result in a material breach of any term or provision of the charter or by-laws of the Depositor or (B) materially conflict with, result in a violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Depositor is a party or by which it may be bound or (C) constitute a material violation of any statute, order or regulation applicable to the Depositor of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Depositor; and the Depositor is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Depositor's ability to perform or meet any of its obligations under this Agreement.
(iv) No litigation is pending, or, to the best of the Depositor's knowledge, threatened, against the Depositor that would materially and adversely affect the execution, delivery or enforceability of this Agreement will not constitute a violation of, any law, any order and the Sale Agreement or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Depositor's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Depositor to perform its obligations under this Agreement or and the financial condition of Sale Agreement in accordance with the Depositorterms hereof.
(viv) The transfer No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Depositor of, or compliance by the Depositor with, this Agreement and the Sale Agreement or the consummation of the Trust Mortgage Loans to the Trustee as transactions contemplated herein requires no regulatory hereby, or if any such consent, approval, other than any such approvals as have been obtainedauthorization or order is required, and is not subject to any bulk transfer or similar law in effect in any applicable jurisdiction.
(vii) the Depositor has obtained the same. The Depositor is not transferring the Trust Mortgage Loans hereby represents and warrants to the Trustee with any intent respect to hinder, delay or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left with unreasonably small assets or capital with which to engage in and conduct its business.
(x) The Depositor 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.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xii) No litigation is pending or, to the best of the Depositor's knowledge, threatened against the Depositor that, if determined adversely to the Depositor, would prohibit the Depositor from entering into this Agreement or that, in the Depositor's good faith and reasonable judgment, is likely to materially and adversely affect either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(xiii) Except for any actions that are the express responsibility of another party hereunder or under the each Mortgage Loan Purchase Agreements, and further except for actions that the Depositor is expressly permitted to complete subsequent to as of the Closing Date, the Depositor has taken all actions required under applicable law to effectuate and following the transfer of the Trust Mortgage Loans by the Depositor to the Trustee.
(xiv) Immediately prior to the transfer of the UBS Trust Mortgage Loans to it by the Trust pursuant to this Agreement (and assuming that the UBS Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Trust Mortgage LoanSeller, free and clear of all liens, claims, encumbrances and other interests), (A) the Depositor had good title to the Mortgage Loans and marketable title tothe Mortgage Notes were subject to no offsets, and was the sole owner and holder ofclaims, each UBS Trust Mortgage Loan; and (B) the Depositor has full right and authority to sellliens, assign and transfer the UBS Trust Mortgage Loansmortgage, exclusive of the servicing rights pertaining theretopledge, charge, security interest, defenses or counterclaims.
(b) The Depositor hereby makes to the Trustee, for the Trustee's own benefit representations and the benefit warranties of the Certificateholders, Seller with respect to each Xxxxxx Trust the Mortgage Loan only, Loans contained in the representations and warranties shown on Schedule II hereto, Sale Agreement were made as of the Closing Date Date. To the extent that any fact, condition or such other date specified in event with respect to a Mortgage Loan constitutes a breach of a representation or warranty of the particular Seller under the Sale Agreement, the only right or remedy of the Trustee or of any Certificateholder shall be the Trustee's right to enforce the obligations of the Seller under any applicable representation and warranty, subject or warranty made by it. The Trustee acknowledges that the Depositor shall have no obligation or liability with respect to any breach of any representation or warranty with respect to the exceptions set forth on Schedule III hereto Mortgage Loans (the headings except as set forth in Schedule II hereto with respect to each representation and warranty being for convenience of reference only and in no way limiting, expanding or otherwise affecting the scope or subject matter thereofSection 2.03(a)(v). Except as expressly provided in Section 2.04(a), the Depositor does not make ) under any representations or warranties regarding the UBS Trust Mortgage Loanscircumstances.
(c) The representations, warranties and covenants of the Depositor set forth in or made pursuant to Section 2.04(a) and Section 2.04(b) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any the Depositor, the Master Servicer, the Securities Administrator, the Servicer or the Trustee of a breach of any of such representationsrepresentations and warranties that adversely and materially affects the value of the related Mortgage Loan, warranties and covenantsPrepayment Charges or the interests of the Certificateholders, the party discovering such breach shall give prompt written notice thereof to the other parties. Within 90 days of the discovery of such breach of any representation or warranty, the Seller shall either (a) cure such breach in all material respects, (b) repurchase such Mortgage Loan or any property acquired in respect thereof from the Trustee at the Purchase Price or (c) within the two year period following the Closing Date, substitute a Replacement Mortgage Loan for the affected Mortgage Loan. In the event of discovery of a breach of any representation and warranty of the Seller, the Trustee's rights shall be enforced under the Sale Agreement for the benefit of Certificateholders. If a breach of the representations and warranties set forth in the Sale Agreement hereof exists solely due to the unenforceability of a Prepayment Charge, the Trustee or the other party having notice thereof shall notify the Servicer thereof and not seek to enforce the repurchase remedy provided for herein unless such Mortgage Loan is not current. In the event of a breach of the representations and warranties with respect to the Mortgage Loans set forth in the Sale Agreement, the Trustee shall enforce the right of the Trust Fund to be indemnified for such breach of representation and warranty. In the event that such breach relates solely to the unenforceability of a Prepayment Charge, amounts received in respect of such indemnity up to the amount of such Prepayment Charge shall be distributed pursuant to Section 4.04(b)(i). As provided in the Sale Agreement, if the Seller substitutes for a Mortgage Loan for which there is a breach of any representations and warranties in the Sale Agreement which adversely and materially affects the value of such Mortgage Loan and such substitute mortgage loan is not a Replacement Mortgage Loan, under the terms of the Sale Agreement, the Seller will, in exchange for such substitute Mortgage Loan, (i) provide the applicable Purchase Price for the affected Mortgage Loan or (ii) within two years of the Closing Date, substitute such affected Mortgage Loan with a Replacement Mortgage Loan. Any such substitution shall not be effected prior to the additional delivery to the Trustee of a Request for Release substantially in the form of Exhibit I and shall not be effected unless it is within two years of the Startup Day. The Seller indemnifies and holds the Trust Fund, the Trustee, the Depositor, the Master Servicer, the Securities Administrator, the Servicer and each Certificateholder harmless against any and all taxes, claims, losses, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, fees and expenses that the Trust Fund, the Trustee, the Depositor, the Master Servicer, the Securities Administrator, the Servicer and any Certificateholder may sustain in connection with any actions of the Seller relating to a repurchase of a Mortgage Loan other than in compliance with the terms of this Section 2.03 and the Sale Agreement, to the extent that any such action causes (i) any federal or state tax to be imposed on the Trust Fund or any REMIC provided for herein, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup day" under Section 860(d)(1) of the Code, or (ii) any REMIC created hereunder to fail to qualify as a REMIC at any time that any Certificate is outstanding. In furtherance of the foregoing, if the Seller is not a member of MERS and repurchases a Mortgage Loan which is registered on the MERS System, the Seller, at its own expense and without any right of reimbursement, shall cause MERS to execute and deliver an assignment of the Mortgage in recordable form to transfer the Mortgage from MERS to the Seller and shall cause such Mortgage to be removed from registration on the MERS System in accordance with MERS' rules and regulations. With respect to any Mortgage Loan repurchased by the Seller pursuant to the Sale Agreement, the principal portion of the funds received by the Securities Administrator in respect of such repurchase of a Mortgage Loan will be considered a Principal Prepayment and shall be deposited in the Certificate Account pursuant to Section 3.05. The Trustee, upon receipt of notice from the Securities Administrator of its receipt of the full amount of the Purchase Price for a Deleted Mortgage Loan, or upon receipt of the Mortgage File for a Replacement Mortgage Loan substituted for a Deleted Mortgage Loan, shall release or cause to be released and reassign to the Seller the related Mortgage File for the Deleted Mortgage Loan and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation or warranty, as shall be necessary to vest in such party or its designee or assignee title to any Deleted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Trustee (or its custodian), and neither the Trustee nor the Securities Administrator shall not have any further responsibility with respect to the Mortgage File relating to such Deleted Mortgage Loan. With respect to each Replacement Mortgage Loan to be delivered to the Trustee (or its custodian) pursuant to the terms of this Article II in exchange for a Deleted Mortgage Loan: (i) the Seller must deliver to the Trustee (or its custodian) the Mortgage File for the Replacement Mortgage Loan containing the documents set forth in Section 2.01 along with a written certification certifying as to the Mortgage Loan satisfying all requirements under the definition of Replacement Mortgage Loan and the delivery of such Mortgage File and containing the granting language set forth in Section 2.01; and (ii) the Depositor will be deemed to have made, with respect to such Replacement Mortgage Loan, each of the representations and warranties made by it with respect to the related Deleted Mortgage Loan. The Trustee (or its custodian) shall review the Mortgage File with respect to each Replacement Mortgage Loan and certify to the Depositor that all documents required by Section 2.01 have been executed and received. For any month in which the Seller substitutes one or more Replacement Mortgage Loans for one or more Deleted Mortgage Loans, the Seller will determine the amount (if any) by which the aggregate principal balance of all such Replacement Mortgage Loans as of the date of substitution and the aggregate Prepayment Charges with respect to such Replacement Mortgage Loans is less than the aggregate Stated Principal Balance (after application of the principal portion of the Scheduled Payment due in the month of substitution) and aggregate Prepayment Charges of all such Deleted Mortgage Loans. An amount equal to the aggregate of the deficiencies described in the preceding sentence (such amount, the "Substitution Adjustment Amount") plus an amount equal to any unreimbursed costs, penalties and/or damages incurred by the Trust Fund in connection with any violation relating to such Deleted Mortgage Loan of any predatory or abusive lending law shall be remitted by the Seller to the Securities Administrator for deposit into the Certificate Account by the Seller on the Determination Date for the Distribution Date relating to the Prepayment Period during which the related Mortgage Loan became required to be purchased or replaced hereunder. Notwithstanding any other provision of this Agreement, the right to substitute Mortgage Loans pursuant to this Article II shall be subject to the additional limitations that no substitution of a Replacement Mortgage Loan for a Deleted Mortgage Loan shall be made unless the Trustee and the Securities Administrator shall have received an Opinion of Counsel (at the expense of the party seeking to make the substitution) that, under current law, such substitution will not (A) affect adversely the status of any REMIC established hereunder as a REMIC, or of the related "regular interests" as "regular interests" in any such REMIC, or (B) cause any such REMIC to engage in a "prohibited transaction" or prohibited contribution pursuant to the REMIC Provisions. The Trustee shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Replacement Mortgage Loan or Replacement Mortgage Loans. Upon such substitution by the Seller, such Replacement Mortgage Loan or Replacement Mortgage Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and the Sale Agreement, including all applicable representations and warranties thereof included in the Sale Agreement as of the date of substitution.
(d) It is understood and agreed that the representations, warranties and indemnification (i) set forth in this Section 2.03 and (ii) of the Seller and the Depositor set forth in the Sale Agreement and assigned to the Trustee by the Depositor hereunder shall each survive delivery of the Mortgage Files and the Assignment of Mortgage of each Mortgage Loan to the Trustee and shall continue throughout the term of this Agreement.
(e) The Depositor shall deliver a copy of the Mortgage Loan Schedule to the Servicer on the Closing Date.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors, Inc. Series 2004-FFC)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, represents and warrants and covenants to the TrusteeServicer, for its own benefit the Master Servicer, the Securities Administrator and the benefit of the Certificateholders, and to the Master Servicer and the Special ServicerTrustee as follows, as of the Closing Date, thatdate hereof:
(i) The Depositor is duly organized and is validly existing as a corporation duly organized, validly existing and in good standing under the laws of the State of DelawareDelaware and has full power and authority (corporate and other) 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 and the Sale Agreement.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full corporate power and authority to execute, deliver and perform, and to enter into and consummate all the transactions contemplated by by, this Agreement, Agreement and the Sale Agreement and has duly authorized authorized, by all necessary corporate action on its part, the execution, delivery and performance of this Agreement and the Sale Agreement, ; and has duly executed this Agreement and delivered this Agreement.
(iv) This the Sale Agreement, assuming the due authorization, execution and delivery hereof by each of the other parties hereto, constitutes a validlegal, legal valid and binding obligation of the Depositor, enforceable against the Depositor in accordance with the terms hereofits terms, subject subject, as to enforceability, to (Ai) applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally, generally and (Bii) general principles of equity, regardless of whether such enforcement is considered sought in a proceeding in equity or at law.
(viii) The Depositor is not in violation of, and its execution and delivery of this Agreement and its performance the Sale Agreement by the Depositor, the consummation of the transactions contemplated by this Agreement and the Sale Agreement, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Depositor and will not (A) result in a material breach of any term or provision of the charter or by-laws of the Depositor or (B) materially conflict with, result in a violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Depositor is a party or by which it may be bound or (C) constitute a material violation of any statute, order or regulation applicable to the Depositor of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Depositor; and the Depositor is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Depositor's ability to perform or meet any of its obligations under this Agreement.
(iv) No litigation is pending, or, to the best of the Depositor's knowledge, threatened, against the Depositor that would materially and adversely affect the execution, delivery or enforceability of this Agreement will not constitute a violation of, any law, any order and the Sale Agreement or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Depositor's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Depositor to perform its obligations under this Agreement or and the financial condition of Sale Agreement in accordance with the Depositorterms hereof.
(viv) The transfer No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Depositor of, or compliance by the Depositor with, this Agreement and the Sale Agreement or the consummation of the Trust Mortgage Loans to the Trustee as transactions contemplated herein requires no regulatory hereby, or if any such consent, approval, other than any such approvals as have been obtainedauthorization or order is required, and is not subject to any bulk transfer or similar law in effect in any applicable jurisdiction.
(vii) the Depositor has obtained the same. The Depositor is not transferring the Trust Mortgage Loans hereby represents and warrants to the Trustee with any intent respect to hinder, delay or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left with unreasonably small assets or capital with which to engage in and conduct its business.
(x) The Depositor 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.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xii) No litigation is pending or, to the best of the Depositor's knowledge, threatened against the Depositor that, if determined adversely to the Depositor, would prohibit the Depositor from entering into this Agreement or that, in the Depositor's good faith and reasonable judgment, is likely to materially and adversely affect either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(xiii) Except for any actions that are the express responsibility of another party hereunder or under the each Mortgage Loan Purchase Agreements, and further except for actions that the Depositor is expressly permitted to complete subsequent to as of the Closing Date, the Depositor has taken all actions required under applicable law to effectuate and following the transfer of the Trust Mortgage Loans by the Depositor to the Trustee.
(xiv) Immediately prior to the transfer of the UBS Trust Mortgage Loans to it by the Trust pursuant to this Agreement (and assuming that the UBS Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Trust Mortgage LoanSeller, free and clear of all liens, claims, encumbrances and other interests), (A) the Depositor had good title to the Mortgage Loans and marketable title tothe Mortgage Notes were subject to no offsets, and was the sole owner and holder ofclaims, each UBS Trust Mortgage Loan; and (B) the Depositor has full right and authority to sellliens, assign and transfer the UBS Trust Mortgage Loansmortgage, exclusive of the servicing rights pertaining theretopledge, charge, security interest, defenses or counterclaims.
(b) The Depositor hereby makes representations and warranties of each Transferor with respect to the Trusteerelated Mortgage Loans in the applicable Transfer Agreement, for which have been assigned to the Trustee's own benefit and the benefit Trustee hereunder, were made as of the Certificateholdersdate specified in the applicable Transfer Agreement and brought forward to the Closing Date pursuant to the related Bring Down Letter. The representations and warranties of each Transferor with respect to the Mortgage Loans contained in the Bring Down Letter were made as of the Closing Date. The representations and warranties of the Seller with respect to the Mortgage Loans contained in the Sale Agreement were made as of the Closing Date. To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of both (i) a representation or warranty of the applicable Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under the Sale Agreement, the obligations of the Seller under the Sale Agreement shall be enforced against the Transferor or the Seller, as applicable, as set forth in the Sale Agreement. The Trustee acknowledges that the Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Mortgage Loans, except as otherwise set forth in the Sale Agreement, if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in the related Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty. The Trustee also acknowledges that the Seller shall have no obligation or liability with respect to any breach of a representation or warranty made solely by the Transferors with respect to the Mortgage Loans, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty. The Trustee further acknowledges that the Depositor shall have no obligation or liability with respect to any breach of any representation or warranty with respect to the Mortgage Loans (except as set forth in Section 2.03(a)(v)) under any circumstances. In addition to the representations and warranties of the Transferors in the Transfer Agreements that were brought forward to the Closing Date pursuant to the Bring Down Letter, with respect to each Xxxxxx Trust Mortgage Loan onlyLoan, the representations and warranties shown on Schedule II heretoeach Transferor made certain additional covenants regarding such Mortgage Loan, as of the Closing Date or such other date specified in the particular representation and warranty, subject to the exceptions set forth on Schedule III hereto (the headings set forth in Schedule II hereto with the related Transfer Agreement. With respect to each representation and warranty being for convenience of reference only and in no way limiting, expanding or otherwise affecting the scope or subject matter thereof). Except as expressly provided in Section 2.04(a), the Depositor does not make any representations or warranties regarding the UBS Trust Mortgage Loans.
(c) The representations, warranties and covenants of the Depositor set forth in or made pursuant to Section 2.04(a) and Section 2.04(b) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any breach of any such additional covenants that materially and adversely affects the interests of the Certificateholders in such representations, warranties and covenantsMortgage Loan, the party discovering Seller shall (1) use reasonable efforts to enforce such breach shall give prompt written notice thereof to covenant against the other parties.related Transferor and (2) if the Seller successfully enforces any
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Trust Series 2005-Sl1)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, warrants and covenants to the Trustee, for its own benefit and the benefit of the Certificateholders, and to the Master Servicer and the Special Servicer, as of the Closing Date, that:
(i) The Depositor is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full power and authority to enter into and consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and delivery by each of the other parties hereto, constitutes a valid, legal and binding obligation of the Depositor, enforceable against the Depositor in accordance with the terms hereof, subject to (A) applicable bankruptcy, insolvency, reorganization, moratorium and other laws affecting the enforcement of creditors' rights generally, and (B) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law.
(v) The Depositor is not in violation of, and its execution and delivery of this Agreement and its performance and compliance with the terms of this Agreement will not constitute a violation of, any law, any order or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Depositor's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(vi) The transfer of the Trust Mortgage Loans to the Trustee as contemplated herein requires no regulatory approval, other than any such approvals as have been obtained, and is not subject to any bulk transfer or similar law in effect in any applicable jurisdiction.
(vii) The Depositor is not transferring the Trust Mortgage Loans to the Trustee with any intent to hinder, delay or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left with unreasonably small assets or capital with which to engage in and conduct its business.
(x) The Depositor 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.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xii) No litigation is pending or, to the best of the Depositor's knowledge, threatened against the Depositor that, if determined adversely to the Depositor, would prohibit the Depositor from entering into this Agreement or that, in the Depositor's good faith and reasonable judgment, is likely to materially and adversely affect either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(xiii) Except for any actions that are the express responsibility of another party hereunder or under the Mortgage Loan Purchase Agreements, and further except for actions that the Depositor is expressly permitted to complete subsequent to the Closing Date, the Depositor has taken all actions required under applicable law to effectuate the transfer of the Trust Mortgage Loans by the Depositor to the Trustee.
(xiv) Immediately prior to the transfer of the UBS Trust Mortgage Loans to the Trust pursuant to this Agreement (and assuming that the UBS Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Trust Mortgage Loan, free and clear of all liens, claims, encumbrances and other interests), (A) the Depositor had good and marketable title to, and was the sole owner and holder of, each UBS Trust Mortgage Loan; and (B) the Depositor has full right and authority to sell, assign and transfer the UBS Trust Mortgage Loans, exclusive of the servicing rights pertaining thereto.
(b) The Depositor hereby makes to the Trustee, for the Trustee's own benefit and the benefit of the Certificateholders, with respect to each Xxxxxx Lehman Trust Mortgage Loan only, the representations and warranties shown xxxxx on Schedule II hereto, as of the Closing Date or such other date specified in the particular representation and warranty, subject to the exceptions set forth on Schedule III hereto (the headings set forth in Schedule II hereto with respect to each representation and warranty being for convenience of reference only and in no way limiting, expanding or otherwise affecting the scope or subject matter thereof). Except as expressly provided in Section 2.04(a), the Depositor does not make any representations or warranties regarding the UBS Trust Mortgage Loans.
(c) The representations, warranties and covenants of the Depositor set forth in or made pursuant to Section 2.04(a) and Section 2.04(b) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any breach of any of such representations, warranties and covenants, the party discovering such breach shall give prompt written notice thereof to the other parties.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Lb-Ubs Commercial Mortgage Trust 2006-C4)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, represents and warrants and covenants to the Trustee, for its own benefit and the benefit of the Certificateholders, and to the Master Servicer and the Special ServicerTrustee as follows, as of the Closing Date, thatdate hereof:
(i) The Depositor is duly organized and is validly existing as a corporation duly organized, validly existing and in good standing under the laws of the State of DelawareDelaware and has full power and authority (corporate and other) 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 and the Sale Agreement.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full corporate power and authority to execute, deliver and perform, and to enter into and consummate all the transactions contemplated by by, this Agreement, Agreement and the Sale Agreement and has duly authorized authorized, by all necessary corporate action on its part, the execution, delivery and performance of this Agreement and the Sale Agreement, ; and has duly executed this Agreement and delivered this Agreement.
(iv) This the Sale Agreement, assuming the due authorization, execution and delivery hereof by each of the other parties hereto, constitutes a validlegal, legal valid and binding obligation of the Depositor, enforceable against the Depositor in accordance with the terms hereofits terms, subject subject, as to enforceability, to (Ai) applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally, generally and (Bii) general principles of equity, regardless of whether such enforcement is considered sought in a proceeding in equity or at law.
(viii) The Depositor is not in violation of, and its execution and delivery of this Agreement and its performance the Sale Agreement by the Depositor, the consummation of the transactions contemplated by this Agreement and the Sale Agreement, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Depositor and will not (A) result in a material breach of any term or provision of the charter or by-laws of the Depositor or (B) materially conflict with, result in a violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Depositor is a party or by which it may be bound or (C) constitute a material violation of any statute, order or regulation applicable to the Depositor of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Depositor; and the Depositor is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Depositor's ability to perform or meet any of its obligations under this Agreement.
(iv) No litigation is pending, or, to the best of the Depositor's knowledge, threatened, against the Depositor that would materially and adversely affect the execution, delivery or enforceability of this Agreement will not constitute a violation of, any law, any order and the Sale Agreement or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Depositor's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Depositor to perform its obligations under this Agreement or and the financial condition of Sale Agreement in accordance with the Depositorterms hereof.
(viv) The transfer No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Depositor of, or compliance by the Depositor with, this Agreement and the Sale Agreement or the consummation of the Trust Mortgage Loans to the Trustee as transactions contemplated herein requires no regulatory hereby, or if any such consent, approval, other than any such approvals as have been obtainedauthorization or order is required, and is not subject to any bulk transfer or similar law in effect in any applicable jurisdiction.
(vii) the Depositor has obtained the same. The Depositor is not transferring the Trust Mortgage Loans hereby represents and warrants to the Trustee with any intent respect to hinder, delay or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left with unreasonably small assets or capital with which to engage in and conduct its business.
(x) The Depositor 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.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xii) No litigation is pending or, to the best of the Depositor's knowledge, threatened against the Depositor that, if determined adversely to the Depositor, would prohibit the Depositor from entering into this Agreement or that, in the Depositor's good faith and reasonable judgment, is likely to materially and adversely affect either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(xiii) Except for any actions that are the express responsibility of another party hereunder or under the each Mortgage Loan Purchase Agreements, and further except for actions that the Depositor is expressly permitted to complete subsequent to as of the Closing Date, the Depositor has taken all actions required under applicable law to effectuate and following the transfer of the Trust Mortgage Loans by the Depositor to the Trustee.
(xiv) Immediately prior to the transfer of the UBS Trust Mortgage Loans to it by the Trust pursuant to this Agreement (and assuming that the UBS Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Trust Mortgage LoanSponsor, free and clear of all liens, claims, encumbrances and other interests), (A) the Depositor had good title to the Mortgage Loans and marketable title tothe Mortgage Notes were subject to no offsets, and was the sole owner and holder ofclaims, each UBS Trust Mortgage Loan; and (B) the Depositor has full right and authority to sellliens, assign and transfer the UBS Trust Mortgage Loansmortgage, exclusive of the servicing rights pertaining theretopledge, charge, security interest, defenses or counterclaims.
(b) The Depositor hereby makes representations and warranties of the Transferor with respect to the Trusteerelated Mortgage Loans in the Transfer Agreement, for which have been assigned to the Trustee's own benefit and the benefit Trustee hereunder, were made as of the Certificateholdersdate specified in the Transfer Agreement and brought forward to the Closing Date pursuant to the Bring Down Letter. The representations and warranties of the Transferor with respect to the Mortgage Loans contained in the Bring Down Letter were made as of the Closing Date. The representations and warranties of the Sponsor with respect to the Mortgage Loans contained in the Sale Agreement were made as of the Closing Date. To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of a representation or warranty of the Sponsor under the Sale Agreement, the obligations of the Sponsor under the Sale Agreement shall be enforced against the Sponsor, as set forth in the Sale Agreement. The Trustee acknowledges that the Depositor shall have no obligation or liability with respect to any breach of any representation or warranty with respect to the Mortgage Loans (except as set forth in Section 2.03(a)(v)) under any circumstances. In addition to the representations and warranties of the Transferor in the Transfer Agreement that were brought forward to the Closing Date pursuant to the Bring Down Letter, with respect to each Xxxxxx Trust Mortgage Loan onlyLoan, the representations and warranties shown on Schedule II heretoTransferor made certain additional covenants regarding such Mortgage Loan, as of the Closing Date or such other date specified in the particular representation and warranty, subject to the exceptions set forth on Schedule III hereto (the headings set forth in Schedule II hereto with the Transfer Agreement. With respect to each representation any breach of such additional covenants that materially and warranty being for convenience adversely affects the interests of reference only and the Certificateholders in no way limiting, expanding or otherwise affecting the scope or subject matter thereof). Except as expressly provided in Section 2.04(a)such Mortgage Loan, the Depositor does not make any representations or warranties regarding the UBS Trust Sponsor shall repurchase such Mortgage LoansLoan in accordance with this Section 2.03.
(c) The representations, warranties and covenants of the Depositor set forth in or made pursuant to Section 2.04(a) and Section 2.04(b) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any the Depositor, the Servicer or the Trustee (or its custodian) of a breach of any of such representationsrepresentations and warranties that adversely and materially affects the value of the related Mortgage Loan, warranties and covenantsPrepayment Charges or the interests of the Certificateholders, the party discovering such breach shall give prompt written notice thereof to the other parties. Within ninety (90) days of the discovery of such breach of any representation or warranty, the Sponsor shall either (a) cure such breach in all material respects, (b) repurchase such Mortgage Loan or any property acquired in respect thereof from the Trustee at the Purchase Price or (c) within the two year period following the Closing Date, substitute a Replacement Mortgage Loan for the affected Mortgage Loan. In the event of discovery of a breach of any representation and warranty of the Sponsor, the Trustee's rights shall be enforced under the Sale Agreement for the benefit of Certificateholders. If a breach of the representations and warranties set forth in the Transfer Agreement hereof exists solely due to the unenforceability of a Prepayment Charge, the Trustee or the other party having notice thereof shall notify the Servicer thereof and not seek to enforce the repurchase remedy provided for herein unless such Mortgage Loan is not current. In the event of a breach of the representations and warranties with respect to the Mortgage Loans set forth in the Transfer Agreement, the Trustee shall enforce the right of the Issuing Entity to be indemnified for such breach of representation and warranty. In the event that such breach relates solely to the unenforceability of a Prepayment Charge, amounts received in respect of such indemnity up to the amount of such Prepayment Charge shall be distributed pursuant to Section 4.04(b)(i). As provided in the Sale Agreement, if the Sponsor substitutes for a Mortgage Loan for which there is a breach of any representations and warranties in the Transfer Agreement which adversely and materially affects the value of such Mortgage Loan and such substitute mortgage loan is not a Replacement Mortgage Loan, under the terms of the Sale Agreement, the Sponsor will, in exchange for such substitute Mortgage Loan, (i) provide the applicable Purchase Price for the affected Mortgage Loan or (ii) within two years of the Closing Date, substitute such affected Mortgage Loan with a Replacement Mortgage Loan. Any such substitution shall not be effected prior to the additional delivery to the Trustee of a Request for Release substantially in the form of Exhibit I and shall not be effected unless it is within two years of the Startup Day. As provided in the Sale Agreement, the Sponsor indemnifies and holds the Issuing Entity, the Trustee (or its custodian, as applicable), the Depositor, the Servicer and each Certificateholder harmless against any and all taxes, claims, losses, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, fees and expenses that the Issuing Entity, the Trustee (or its custodian, as applicable), the Depositor, the Servicer and any Certificateholder may sustain in connection with any actions of the Sponsor relating to a repurchase of a Mortgage Loan other than in compliance with the terms of this Section 2.03 and the Sale Agreement, to the extent that any such action causes (i) any federal or state tax to be imposed on the Issuing Entity or any REMIC provided for herein, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup day" under Section 860G(d)(1) of the Code, or (ii) any REMIC created hereunder to fail to qualify as a REMIC at any time that any Certificate is outstanding. In furtherance of the foregoing, if the Sponsor is not a member of MERS and repurchases a Mortgage Loan which is registered on the MERS System, the Sponsor, at its own expense and without any right of reimbursement, shall cause MERS to execute and deliver an assignment of the Mortgage in recordable form to transfer the Mortgage from MERS to the Sponsor and shall cause such Mortgage to be removed from registration on the MERS System in accordance with MERS' rules and regulations. With respect to any Mortgage Loan repurchased by the Sponsor pursuant to the Sale Agreement, the principal portion of the funds received by the Servicer in respect of such repurchase of a Mortgage Loan will be considered a Principal Prepayment and shall be deposited in the Certificate Account pursuant to Section 3.05. Upon receipt by the Trustee of notice from the Servicer of receipt by the Servicer of the full amount of the Purchase Price for a Deleted Mortgage Loan, and upon receipt by the Trustee of the Mortgage File for a Replacement Mortgage Loan substituted for a Deleted Mortgage Loan and a Request for Release, the Trustee shall release and reassign to the Sponsor the related Mortgage File for the Deleted Mortgage Loan and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation or warranty, as shall be necessary to vest in such party or its designee or assignee title to any Deleted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Depositor or the Sponsor, and the Trustee (and its custodian) shall have no further responsibility with respect to the Mortgage File relating to such Deleted Mortgage Loan. With respect to each Replacement Mortgage Loan to be delivered to the Trustee pursuant to the terms of this Article II in exchange for a Deleted Mortgage Loan: (i) the Sponsor must deliver to the Trustee the Mortgage File for the Replacement Mortgage Loan containing the documents set forth in Section 2.01 along with a written certification certifying as to the Mortgage Loan satisfying all requirements under the definition of Replacement Mortgage Loan and the delivery of such Mortgage File and containing the granting language set forth in Section 2.01; and (ii) the Depositor will be deemed to have made, with respect to such Replacement Mortgage Loan, each of the representations and warranties made by it with respect to the related Deleted Mortgage Loan. The Trustee shall review the Mortgage File with respect to each Replacement Mortgage Loan and certify to the Depositor that all documents required by Section 2.01(A)-(B), (C) (if applicable), and (D)-(E) have been executed and received. For any month in which the Sponsor substitutes one or more Replacement Mortgage Loans for one or more Deleted Mortgage Loans, the Sponsor will determine the amount (if any) by which the aggregate principal balance of all such Replacement Mortgage Loans as of the date of substitution and the aggregate Prepayment Charges with respect to such Replacement Mortgage Loans is less than the aggregate Stated Principal Balance (after application of the principal portion of the Scheduled Payment due in the month of substitution) and aggregate Prepayment Charges of all such Deleted Mortgage Loans. An amount equal to the aggregate of the deficiencies described in the preceding sentence (such amount, the "Substitution Adjustment Amount") plus an amount equal to any unreimbursed costs, penalties and/or damages incurred by the Trust Fund in connection with any violation relating to such Deleted Mortgage Loan of any predatory or abusive lending law shall be remitted by the Sponsor to the Trustee for deposit into the Certificate Account by the Sponsor on the Determination Date for the Distribution Date relating to the Prepayment Period during which the related Mortgage Loan became required to be purchased or replaced hereunder. Notwithstanding any other provision of this Agreement, the right to substitute Mortgage Loans pursuant to this Article II shall be subject to the additional limitations that no substitution of a Replacement Mortgage Loan for a Deleted Mortgage Loan shall be made unless the Trustee shall have received an Opinion of Counsel (at the expense of the party seeking to make the substitution) that, under current law, such substitution will not (A) affect adversely the status of any REMIC established hereunder as a REMIC, or of the related "regular interests" as "regular interests" in any such REMIC, or (B) cause any such REMIC to engage in a "prohibited transaction" or prohibited contribution pursuant to the REMIC Provisions. The Depositor shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Replacement Mortgage Loan or Replacement Mortgage Loans. Upon such substitution by the Sponsor, such Replacement Mortgage Loan or Replacement Mortgage Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and the applicable Sale Agreement, including all applicable representations and warranties thereof included in the applicable Sale Agreement as of the date of substitution.
(d) It is understood and agreed that the representations, warranties and indemnification (i) set forth in this Section 2.03, (ii) of the Sponsor and the Depositor set forth in the Sale Agreement and assigned to the Trustee by the Depositor hereunder and (iii) of the Transferor, assigned by the Sponsor to the Depositor pursuant to the Sale Agreement and assigned to the Trustee by the Depositor hereunder shall each survive delivery of the Mortgage Files and the Assignment of Mortgage of each Mortgage Loan to the Trustee and shall continue throughout the term of this Agreement.
(e) The Depositor shall deliver a copy of the Mortgage Loan Schedule to the Servicer on the Closing Date.
(f) The Depositor shall notify the Servicer and the Trustee when any NIM Notes are issued and when such NIM Notes are no longer outstanding.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Trust Series 2006-Rm4)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, represents and warrants and covenants to the Trustee, for its own benefit and the benefit of the Certificateholders, and to the Master Servicer and the Special ServicerTrustee as follows, as of the Closing Date, thatdate hereof:
(i) The Depositor is duly organized and is validly existing as a corporation duly organized, validly existing and in good standing under the laws of the State of DelawareDelaware and has full power and authority (corporate and other) 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 and the Sale Agreement.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full corporate power and authority to execute, deliver and perform, and to enter into and consummate all the transactions contemplated by by, this Agreement, Agreement and the Sale Agreement and has duly authorized authorized, by all necessary corporate action on its part, the execution, delivery and performance of this Agreement and the Sale Agreement, ; and has duly executed this Agreement and delivered this Agreement.
(iv) This the Sale Agreement, assuming the due authorization, execution and delivery hereof by each of the other parties hereto, constitutes a validlegal, legal valid and binding obligation of the Depositor, enforceable against the Depositor in accordance with the terms hereofits terms, subject subject, as to enforceability, to (Ai) applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally, generally and (Bii) general principles of equity, regardless of whether such enforcement is considered sought in a proceeding in equity or at law.
(viii) The Depositor is not in violation of, and its execution and delivery of this Agreement and its performance the Sale Agreement by the Depositor, the consummation of the transactions contemplated by this Agreement and the Sale Agreement, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Depositor and will not (A) result in a material breach of any term or provision of the charter or by-laws of the Depositor or (B) materially conflict with, result in a violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Depositor is a party or by which it may be bound or (C) constitute a material violation of any statute, order or regulation applicable to the Depositor of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Depositor; and the Depositor is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Depositor's ability to perform or meet any of its obligations under this Agreement.
(iv) No litigation is pending, or, to the best of the Depositor's knowledge, threatened, against the Depositor that would materially and adversely affect the execution, delivery or enforceability of this Agreement will not constitute a violation of, any law, any order and the Sale Agreement or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Depositor's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Depositor to perform its obligations under this Agreement or and the financial condition of Sale Agreement in accordance with the Depositorterms hereof.
(viv) The transfer No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Depositor of, or compliance by the Depositor with, this Agreement and the Sale Agreement or the consummation of the Trust Mortgage Loans to the Trustee as transactions contemplated herein requires no regulatory hereby, or if any such consent, approval, other than any such approvals as have been obtainedauthorization or order is required, and is not subject to any bulk transfer or similar law in effect in any applicable jurisdiction.
(vii) the Depositor has obtained the same. The Depositor is not transferring the Trust Mortgage Loans hereby represents and warrants to the Trustee with any intent respect to hinder, delay or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left with unreasonably small assets or capital with which to engage in and conduct its business.
(x) The Depositor 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.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xii) No litigation is pending or, to the best of the Depositor's knowledge, threatened against the Depositor that, if determined adversely to the Depositor, would prohibit the Depositor from entering into this Agreement or that, in the Depositor's good faith and reasonable judgment, is likely to materially and adversely affect either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(xiii) Except for any actions that are the express responsibility of another party hereunder or under the each Mortgage Loan Purchase Agreements, and further except for actions that the Depositor is expressly permitted to complete subsequent to as of the Closing Date, the Depositor has taken all actions required under applicable law to effectuate and following the transfer of the Trust Mortgage Loans by the Depositor to the Trustee.
(xiv) Immediately prior to the transfer of the UBS Trust Mortgage Loans to it by the Trust pursuant to this Agreement (and assuming that the UBS Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Trust Mortgage LoanSponsor, free and clear of all liens, claims, encumbrances and other interests), (A) the Depositor had good title to the Mortgage Loans and marketable title tothe Mortgage Notes were subject to no offsets, and was the sole owner and holder ofclaims, each UBS Trust Mortgage Loan; and (B) the Depositor has full right and authority to sellliens, assign and transfer the UBS Trust Mortgage Loansmortgage, exclusive of the servicing rights pertaining theretopledge, charge, security interest, defenses or counterclaims.
(b) The Depositor hereby makes representations and warranties of the Transferor with respect to the TrusteeMortgage Loans in the Transfer Agreement, for which have been assigned to the Trustee's own benefit and the benefit Trustee hereunder, were made as of the Certificateholdersdate specified in the Transfer Agreement. The representations and warranties of the Sponsor with respect to the Mortgage Loans contained in the Sale Agreement were made as of the Closing Date. To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of a representation or warranty of the Sponsor under the Sale Agreement, the obligations of the Sponsor under the Sale Agreement shall be enforced against the Sponsor, as set forth in the Sale Agreement. The Trustee acknowledges that the Depositor shall have no obligation or liability with respect to any breach of any representation or warranty with respect to the Mortgage Loans (except as set forth in Section 2.03(a)(v)) under any circumstances. In addition, with respect to each Xxxxxx Trust Mortgage Loan onlyLoan, the representations and warranties shown on Schedule II heretoTransferor made certain additional covenants regarding such Mortgage Loan, as of the Closing Date or such other date specified in the particular representation and warranty, subject to the exceptions set forth on Schedule III hereto (the headings set forth in Schedule II hereto with the Transfer Agreement. With respect to each representation any breach of such additional covenants that materially and warranty being for convenience adversely affects the interests of reference only and the Certificateholders in no way limiting, expanding or otherwise affecting the scope or subject matter thereof). Except as expressly provided in Section 2.04(a)such Mortgage Loan, the Depositor does not make any representations or warranties regarding the UBS Trust Sponsor shall repurchase such Mortgage LoansLoan in accordance with this Section 2.03.
(c) The representations, warranties and covenants of the Depositor set forth in or made pursuant to Section 2.04(a) and Section 2.04(b) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any the Depositor, the Servicer or the Trustee (or its custodian) of a breach of any of such representationsrepresentations and warranties that adversely and materially affects the value of the related Mortgage Loan, warranties and covenantsPrepayment Charges or the interests of the Certificateholders, the party discovering such breach shall give prompt written notice thereof to the other parties. Within ninety (90) days of the discovery of such breach of any representation or warranty, the Sponsor shall either (a) cure such breach in all material respects, (b) repurchase such Mortgage Loan or any property acquired in respect thereof from the Trustee at the Purchase Price or (c) within the two year period following the Closing Date, substitute a Replacement Mortgage Loan for the affected Mortgage Loan. In the event of discovery of a breach of any representation and warranty of the Sponsor, the Trustee's rights shall be enforced under the Sale Agreement for the benefit of Certificateholders. If a breach of the representations and warranties set forth in the Purchase Agreement hereof exists solely due to the unenforceability of a Prepayment Charge, the Trustee or the other party having notice thereof shall notify the Servicer thereof and not seek to enforce the repurchase remedy provided for herein unless such Mortgage Loan is not current. In the event that such breach relates solely to the unenforceability of a Prepayment Charge, amounts received in respect of such indemnity up to the amount of such Prepayment Charge shall be distributed pursuant to Section 4.04(b)(i). As provided in the Sale Agreement, if the Sponsor substitutes for a Mortgage Loan for which there is a breach of any representations and warranties in the Purchase Agreement which adversely and materially affects the value of such Mortgage Loan and such substitute mortgage loan is not a Replacement Mortgage Loan, under the terms of the Sale Agreement, the Sponsor will, in exchange for such substitute Mortgage Loan, (i) provide the applicable Purchase Price for the affected Mortgage Loan or (ii) within two years of the Closing Date, substitute such affected Mortgage Loan with a Replacement Mortgage Loan. Any such substitution shall not be effected prior to the additional delivery to the Trustee of a Request for Release substantially in the form of Exhibit I and shall not be effected unless it is within two years of the Startup Day. As provided in the Sale Agreement, the Sponsor indemnifies and holds the Issuing Entity, the Trustee (or its custodian, as applicable), the Depositor, the Servicer and each Certificateholder harmless against any and all taxes, claims, losses, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, fees and expenses that the Issuing Entity, the Trustee (or its custodian, as applicable), the Depositor, the Servicer and any Certificateholder may sustain in connection with any actions of the Sponsor relating to a repurchase of a Mortgage Loan other than in compliance with the terms of this Section 2.03 and the Sale Agreement, to the extent that any such action causes (i) any federal or state tax to be imposed on the Issuing Entity or any REMIC provided for herein, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup day" under Section 860G(d)(1) of the Code, or (ii) any REMIC created hereunder to fail to qualify as a REMIC at any time that any Certificate is outstanding. In furtherance of the foregoing, if the Sponsor is not a member of MERS and repurchases a Mortgage Loan which is registered on the MERS System, the Sponsor, at its own expense and without any right of reimbursement, shall cause MERS to execute and deliver an assignment of the Mortgage in recordable form to transfer the Mortgage from MERS to the Sponsor and shall cause such Mortgage to be removed from registration on the MERS System in accordance with MERS' rules and regulations. With respect to any Mortgage Loan repurchased by the Sponsor pursuant to the Sale Agreement, the principal portion of the funds received by the Servicer in respect of such repurchase of a Mortgage Loan will be considered a Principal Prepayment and shall be deposited in the Certificate Account pursuant to Section 3.05. Upon receipt by the Trustee of notice from the Servicer of receipt by the Servicer of the full amount of the Purchase Price for a Deleted Mortgage Loan, and upon receipt by the Trustee of the Mortgage File for a Replacement Mortgage Loan substituted for a Deleted Mortgage Loan and a Request for Release, the Trustee shall release and reassign to the Sponsor the related Mortgage File for the Deleted Mortgage Loan and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation or warranty, as shall be necessary to vest in such party or its designee or assignee title to any Deleted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Depositor or the Sponsor, and the Trustee (and its custodian) shall have no further responsibility with respect to the Mortgage File relating to such Deleted Mortgage Loan. With respect to each Replacement Mortgage Loan to be delivered to the Trustee pursuant to the terms of this Article II in exchange for a Deleted Mortgage Loan: (i) the Sponsor must deliver to the Trustee the Mortgage File for the Replacement Mortgage Loan containing the documents set forth in
Section 2.01 along with a written certification certifying as to the Mortgage Loan satisfying all requirements under the definition of Replacement Mortgage Loan and the delivery of such Mortgage File and containing the granting language set forth in Section 2.01; and (ii) the Depositor will be deemed to have made, with respect to such Replacement Mortgage Loan, each of the representations and warranties made by it with respect to the related Deleted Mortgage Loan. The Trustee shall review the Mortgage File with respect to each Replacement Mortgage Loan and certify to the Depositor that all documents required by Section 2.01(A)-(B), (C) (if applicable), and (D)-(E) have been executed and received. For any month in which the Sponsor substitutes one or more Replacement Mortgage Loans for one or more Deleted Mortgage Loans, the Sponsor will determine the amount (if any) by which the aggregate principal balance of all such Replacement Mortgage Loans as of the date of substitution and the aggregate Prepayment Charges with respect to such Replacement Mortgage Loans is less than the aggregate Stated Principal Balance (after application of the principal portion of the Scheduled Payment due in the month of substitution) and aggregate Prepayment Charges of all such Deleted Mortgage Loans. An amount equal to the aggregate of the deficiencies described in the preceding sentence (such amount, the "Substitution Adjustment Amount") plus an amount equal to any unreimbursed costs, penalties and/or damages incurred by the Trust Fund in connection with any violation relating to such Deleted Mortgage Loan of any predatory or abusive lending law shall be remitted by the Sponsor to the Trustee for deposit into the Certificate Account by the Sponsor on the Determination Date for the Distribution Date relating to the Prepayment Period during which the related Mortgage Loan became required to be purchased or replaced hereunder. Notwithstanding any other provision of this Agreement, the right to substitute Mortgage Loans pursuant to this Article II shall be subject to the additional limitations that no substitution of a Replacement Mortgage Loan for a Deleted Mortgage Loan shall be made unless the Trustee shall have received an Opinion of Counsel (at the expense of the party seeking to make the substitution) that, under current law, such substitution will not (A) affect adversely the status of any REMIC established hereunder as a REMIC, or of the related "regular interests" as "regular interests" in any such REMIC, or (B) cause any such REMIC to engage in a "prohibited transaction" or prohibited contribution pursuant to the REMIC Provisions. The Depositor shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Replacement Mortgage Loan or Replacement Mortgage Loans. Upon such substitution by the Sponsor, such Replacement Mortgage Loan or Replacement Mortgage Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and the Sale Agreement, including all applicable representations and warranties thereof included in the Sale Agreement as of the date of substitution.
(d) It is understood and agreed that the representations, warranties and indemnification (i) set forth in this Section 2.03, (ii) of the Sponsor and the Depositor set forth in the Sale Agreement and assigned to the Trustee by the Depositor hereunder and (iii) of the Transferor, assigned by the Sponsor to the Depositor pursuant to the Sale Agreement and assigned to the Trustee by the Depositor hereunder shall each survive delivery of the Mortgage Files and the Assignment of Mortgage of each Mortgage Loan to the Trustee and shall continue throughout the term of this Agreement.
(e) The Depositor shall deliver a copy of the Mortgage Loan Schedule to the Servicer on the Closing Date.
(f) The Depositor shall notify the Servicer and the Trustee when any NIM Notes are issued and when such NIM Notes are no longer outstanding.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (First Franklin Mortgage Loan Trust, Series 2006-Ff18)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, warrants and covenants to the Trustee, for its own benefit and the benefit of the Certificateholders, and to the Fiscal Agent, the Master Servicer and the Special Servicer, as of the Closing Date, that:
(i) The Depositor is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full power and authority to enter into and consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and delivery by each of the other parties hereto, constitutes a valid, legal and binding obligation of the Depositor, enforceable against the Depositor in accordance with the terms hereof, subject to (A) applicable bankruptcy, insolvency, reorganization, moratorium and other laws affecting the enforcement of creditors' rights generally, and (B) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law.
(v) The Depositor is not in violation of, and its execution and delivery of this Agreement and its performance and compliance with the terms of this Agreement will not constitute a violation of, any law, any order or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Depositor's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(vi) The transfer of the Trust Mortgage Loans to the Trustee as contemplated herein requires no regulatory approval, other than any such approvals as have been obtained, and is not subject to any bulk transfer or similar law in effect in any applicable jurisdiction.
(vii) The Depositor is not transferring the Trust Mortgage Loans to the Trustee with any intent to hinder, delay or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left with unreasonably small assets or capital with which to engage in and conduct its business.
(x) The Depositor 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.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xii) No litigation is pending or, to the best of the Depositor's knowledge, threatened against the Depositor that, if determined adversely to the Depositor, would prohibit the Depositor from entering into this Agreement or that, in the Depositor's good faith and reasonable judgment, is likely to materially and adversely affect either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(xiii) Except for any actions that are the express responsibility of another party hereunder or under the Mortgage Loan Purchase Agreements, and further except for actions that the Depositor is expressly permitted to complete subsequent to the Closing Date, the Depositor has taken all actions required under applicable law to effectuate the transfer of the Trust Mortgage Loans by the Depositor to the Trustee.
(xiv) Immediately prior to the transfer of the UBS Trust Mortgage Loans to the Trust pursuant to this Agreement (and assuming that the UBS Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Trust Mortgage Loan, free and clear of all liens, claims, encumbrances and other interests), (A) the Depositor had good and marketable title to, and was the sole owner and holder of, each UBS Trust Mortgage Loan; and (B) the Depositor has full right and authority to sell, assign and transfer the UBS Trust Mortgage Loans, exclusive of the servicing rights pertaining thereto.
(b) The Depositor hereby makes represents and warrants to the Trustee, for the Trustee's its own benefit and the benefit of the Certificateholders, with respect to each Xxxxxx Trust Mortgage Loan only, the representations and warranties shown on Schedule II hereto, as of the Closing Date or such other date specified in the particular representation and warranty, subject to the exceptions set forth on Schedule III hereto hereto, as follows (the headings set forth in Schedule II hereto this Section 2.04(b) with respect to each representation and warranty being for convenience of reference only and in no way limiting, expanding or otherwise affecting the scope or subject matter thereof). Except as expressly provided in Section 2.04(a), the Depositor does not make any representations or warranties regarding the UBS Trust Mortgage Loans.
(c) The representations, warranties and covenants of the Depositor set forth in or made pursuant to Section 2.04(a) and Section 2.04(b) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any breach of any of such representations, warranties and covenants, the party discovering such breach shall give prompt written notice thereof to the other parties.):
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Structured Asset Sec Corp Lb Ubs Com Mort Tr 2003-C8)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, warrants and covenants to the Trustee, for its own benefit and the benefit of the Certificateholders, and to the Fiscal Agent, the Master Servicer and the Special Servicer, as of the Closing Date, that:
(i) The Depositor is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full power and authority to enter into and consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and delivery by each of the other parties hereto, constitutes a valid, legal and binding obligation of the Depositor, enforceable against the Depositor in accordance with the terms hereof, subject to (A) applicable bankruptcy, insolvency, reorganization, moratorium and other laws affecting the enforcement of creditors' rights generally, and (B) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law.
(v) The Depositor is not in violation of, and its execution and delivery of this Agreement and its performance and compliance with the terms of this Agreement will not constitute a violation of, any law, any order or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Depositor's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(vi) The transfer of the Trust Mortgage Loans to the Trustee as contemplated herein requires no regulatory approval, other than any such approvals as have been obtained, and is not subject to any bulk transfer or similar law in effect in any applicable jurisdiction.
(vii) The Depositor is not transferring the Trust Mortgage Loans to the Trustee with any intent to hinder, delay or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a2.01(b).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a2.01(b), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left with unreasonably small assets or capital with which to engage in and conduct its business.
(x) The Depositor 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.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xii) No litigation is pending or, to the best of the Depositor's knowledge, threatened against the Depositor that, if determined adversely to the Depositor, would prohibit the Depositor from entering into this Agreement or that, in the Depositor's good faith and reasonable judgment, is likely to materially and adversely affect either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(xiii) Except for any actions that are the express responsibility of another party hereunder or under the Mortgage Loan Purchase AgreementsAgreement, and further except for actions that the Depositor is expressly permitted to complete subsequent to the Closing Date, the Depositor has taken all actions required under applicable law to effectuate the transfer of the Trust Mortgage Loans by the Depositor to the Trustee.
(xiv) Immediately prior to the transfer of the UBS Trust Mortgage Loans to the Trust pursuant to this Agreement (and assuming that the UBS Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Trust Mortgage Loan, free and clear of all liens, claims, encumbrances and other interestsinterests and was the sole owner and holder of each Mortgage Loan), (A) the Depositor had good and marketable title to, and was the sole owner and holder of, each UBS Trust Mortgage Loan; and (B) the Depositor has full right and authority to sell, assign and transfer the UBS Trust Mortgage Loans, exclusive of the servicing rights pertaining thereto.
(b) The Depositor hereby makes to the Trustee, for the Trustee's own benefit and the benefit of the Certificateholders, with respect to each Xxxxxx Trust Mortgage Loan only, the representations and warranties shown on Schedule II hereto, as of the Closing Date or such other date specified in the particular representation and warranty, subject to the exceptions set forth on Schedule III hereto (the headings set forth in Schedule II hereto with respect to each representation and warranty being for convenience of reference only and in no way limiting, expanding or otherwise affecting the scope or subject matter thereof). Except as expressly provided in Section 2.04(a), the Depositor does not make any representations or warranties regarding the UBS Trust Mortgage Loans.
(c) The representations, warranties and covenants of the Depositor set forth in or made pursuant to Section 2.04(a) and Section 2.04(b) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any breach of any of such representations, warranties and covenants, the party discovering such breach shall give prompt written notice thereof to the other parties.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (CDC Commercial Mortgage Trust 2002-Fx1)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, represents and warrants and covenants to the TrusteeServicer, for its own benefit the Servicing Administrator, the Securities Administrator, the Seller and the benefit of the Certificateholders, and to the Master Servicer and the Special ServicerTrustee as follows, as of the Closing Date, thatdate hereof:
(i) The Depositor is duly organized and is validly existing as a corporation duly organized, validly existing and in good standing under the laws of the State of DelawareDelaware and has full power and authority (corporate and other) 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 and the Sale Agreement.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full corporate power and authority to execute, deliver and perform, and to enter into and consummate all the transactions contemplated by by, this Agreement, Agreement and the Sale Agreement and has duly authorized authorized, by all necessary corporate action on its part, the execution, delivery and performance of this Agreement and the Sale Agreement, ; and has duly executed this Agreement and delivered this Agreement.
(iv) This the Sale Agreement, assuming the due authorization, execution and delivery hereof by each of the other parties hereto, constitutes a validlegal, legal valid and binding obligation of the Depositor, enforceable against the Depositor in accordance with the terms hereofits terms, subject subject, as to enforceability, to (Ai) applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally, generally and (Bii) general principles of equity, regardless of whether such enforcement is considered sought in a proceeding in equity or at law.
(viii) The Depositor is not in violation of, and its execution and delivery of this Agreement and its performance the Sale Agreement by the Depositor, the consummation of the transactions contemplated by this Agreement and the Sale Agreement, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Depositor and will not (A) result in a material breach of any term or provision of the charter or by-laws of the Depositor or (B) materially conflict with, result in a violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Depositor is a party or by which it may be bound or (C) constitute a material violation of any statute, order or regulation applicable to the Depositor of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Depositor; and the Depositor is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Depositor's ability to perform or meet any of its obligations under this Agreement.
(iv) No litigation is pending, or, to the best of the Depositor's knowledge, threatened, against the Depositor that would materially and adversely affect the execution, delivery or enforceability of this Agreement will not constitute a violation of, any law, any order and the Sale Agreement or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Depositor's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Depositor to perform its obligations under this Agreement or and the financial condition of Sale Agreement in accordance with the Depositorterms hereof.
(viv) The transfer No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Depositor of, or compliance by the Depositor with, this Agreement and the Sale Agreement or the consummation of the Trust Mortgage Loans to the Trustee as transactions contemplated herein requires no regulatory hereby, or if any such consent, approval, other than any such approvals as have been obtainedauthorization or order is required, and is not subject to any bulk transfer or similar law in effect in any applicable jurisdiction.
(vii) the Depositor has obtained the same. The Depositor is not transferring the Trust Mortgage Loans hereby represents and warrants to the Trustee with any intent respect to hinder, delay or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left with unreasonably small assets or capital with which to engage in and conduct its business.
(x) The Depositor 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.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xii) No litigation is pending or, to the best of the Depositor's knowledge, threatened against the Depositor that, if determined adversely to the Depositor, would prohibit the Depositor from entering into this Agreement or that, in the Depositor's good faith and reasonable judgment, is likely to materially and adversely affect either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(xiii) Except for any actions that are the express responsibility of another party hereunder or under the each Mortgage Loan Purchase Agreements, and further except for actions that the Depositor is expressly permitted to complete subsequent to as of the Closing Date, the Depositor has taken all actions required under applicable law to effectuate and following the transfer of the Trust Mortgage Loans by the Depositor to the Trustee.
(xiv) Immediately prior to the transfer of the UBS Trust Mortgage Loans to it by the Trust pursuant to this Agreement (and assuming that the UBS Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Trust Mortgage LoanSeller, free and clear of all liens, claims, encumbrances and other interests), (A) the Depositor had good title to the Mortgage Loans and marketable title tothe Mortgage Notes were subject to no offsets, and was the sole owner and holder ofclaims, each UBS Trust Mortgage Loan; and (B) the Depositor has full right and authority to sellliens, assign and transfer the UBS Trust Mortgage Loansmortgage, exclusive of the servicing rights pertaining theretopledge, charge, security interest, defenses or counterclaims.
(b) The Depositor hereby makes to the Trustee, for the Trustee's own benefit representations and the benefit warranties of the Certificateholders, each Transferor with respect to each Xxxxxx Trust the related Mortgage Loan onlyLoans in the applicable Transfer Agreement, which have been assigned to the representations and warranties shown on Schedule II heretoTrustee hereunder, were made as of the Closing Date or such other date specified in the particular representation and warrantyapplicable Transfer Agreement (or underlying agreement, subject to if such Transfer Agreement is in the exceptions set forth on Schedule III hereto (form of an assignment of a prior agreement). To the headings set forth in Schedule II hereto extent that any fact, condition or event with respect to each a Mortgage Loan constitutes a breach of both (i) a representation or warranty of the applicable Transferor under the applicable Transfer Agreement and (ii) a representation or warranty being for convenience of reference only and in no way limiting, expanding or otherwise affecting the scope or subject matter thereof). Except as expressly provided in Section 2.04(a)Seller under the Sale Agreement, the Depositor obligations of the Seller under the Sale Agreement shall be enforced and to the extent the Seller does not make fulfill its contracted obligations then the obligations of the applicable Transferor shall be enforced under any representations applicable representation or warranties regarding warranty made by it. The Trustee further acknowledges that the UBS Trust Depositor shall have no obligation or liability with respect to any breach of any representation or warranty with respect to the Mortgage LoansLoans under any circumstances.
(c) The representations, warranties and covenants of the Depositor set forth in or made pursuant to Section 2.04(a) and Section 2.04(b) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any the Depositor, the Servicing Administrator, the Servicer, the Securities Administrator or the Trustee of a breach of any of such representationsrepresentations and warranties that adversely and materially affects the value of the related Mortgage Loan, warranties and covenantsprepayment charges or the interests of the Certificateholders, the party discovering such breach shall give prompt written notice thereof to the other parties. Within 90 days of the discovery of such breach of any representation or warranty together with information indicating the nature of the breach, the applicable Transferor or the Seller, as applicable, shall either (a) cure such breach in all material respects, (b) repurchase such Mortgage Loan or any property acquired in respect thereof from the Trustee at the Purchase Price or (c) within the two year period following the Closing Date, substitute a Replacement Mortgage Loan for the affected Mortgage Loan. In the event of discovery of a breach of any representation and warranty of any Transferor or the Seller, the Trustee's rights shall be enforced under the applicable Transfer Agreement and the Sale Agreement for the benefit of Certificateholders. If a breach of the representations and warranties set forth in the Transfer Agreement hereof exists solely due to the unenforceability of a prepayment charge, the Trustee or the other party having notice thereof shall notify the Servicer thereof and not seek to enforce the repurchase remedy provided for herein unless such Mortgage Loan is not current. In the event of a breach of the representations and warranties with respect to the Mortgage Loans set forth in a Transfer Agreement, the Trustee shall enforce the right of the Trust Fund to be indemnified for such breach of representation and warranty. In the event that such breach relates solely to the unenforceability of a prepayment charge, amounts received in respect of such indemnity up to the amount of such prepayment charge shall be distributed pursuant to Section 5.05(i). As provided in the Sale Agreement, if the Transferor substitutes for a Mortgage Loan for which there is a breach of any representations and warranties in the related Transfer Agreement which adversely and materially affects the value of such Mortgage Loan and such substitute mortgage loan is not a Replacement Mortgage Loan, under the terms of the Sale Agreement, the Seller will, in exchange for such substitute Mortgage Loan, (i) provide the applicable Purchase Price for the affected Mortgage Loan or (ii) within two years of the Closing Date, substitute such affected Mortgage Loan with a Replacement Mortgage Loan. Any such substitution shall not be effected prior to the additional delivery to the Trustee of a Request for Release substantially in the form of Exhibit I and shall not be effected unless it is within two years of the Startup Day. The Seller indemnifies and holds the Trust Fund, the Trustee, the Securities Administrator, the Depositor, the Servicing Administrator, the Servicer and each Certificateholder harmless against any and all taxes, claims, losses, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, fees and expenses that the Trust Fund, the Trustee, the Securities Administrator, the Depositor, the Servicing Administrator, the Servicer and any Certificateholder may sustain in connection with any actions of the Seller relating to a repurchase of a Mortgage Loan other than in compliance with the terms of this Section 2.03 and the Sale Agreement, to the extent that any such action causes (i) any federal or state tax to be imposed on the Trust Fund or any REMIC provided for herein, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup day" under Section 860G(d)(1) of the Code, or (ii) any REMIC created hereunder to fail to qualify as a REMIC at any time that any Certificate is outstanding. In furtherance of the foregoing, if the Transferor or the Seller, as applicable, is not a member of MERS and repurchases a Mortgage Loan which is registered on the MERS System, the Transferor or the Seller, as applicable, at its own expense and without any right of reimbursement, shall cause MERS to execute and deliver an assignment of the Mortgage in recordable form to transfer the Mortgage from MERS to the Transferor or the Seller, as applicable, and shall cause such Mortgage to be removed from registration on the MERS System in accordance with MERS' rules and regulations. With respect to any Mortgage Loan repurchased by the Seller pursuant to the Sale Agreement or by any Transferor pursuant to the applicable Transfer Agreement, the principal portion of the funds received by the Securities Administrator, in respect of such repurchase of a Mortgage Loan will be considered a Principal Prepayment and shall be deposited in the Certificate Account pursuant to Section 3.05. The Trustee, upon receipt of notice from the Securities Administrator of its receipt of the full amount of the Purchase Price for a Deleted Mortgage Loan, or upon receipt of the Mortgage File for a Replacement Mortgage Loan substituted for a Deleted Mortgage Loan, shall release or cause to be released and reassign to the Seller or the applicable Transferor, as applicable, the related Mortgage File for the Deleted Mortgage Loan and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation or warranty, as shall be necessary to vest in such party or its designee or assignee title to any Deleted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Seller, and neither the Trustee nor the Securities Administrator shall have any further responsibility with respect to the Mortgage File relating to such Deleted Mortgage Loan. With respect to each Replacement Mortgage Loan to be delivered to the Trustee (or the Custodian) pursuant to the terms of this Article II in exchange for a Deleted Mortgage Loan: (i) the applicable Transferor or the Seller, as applicable, must deliver to the Trustee (or its custodian) the Mortgage File for the Replacement Mortgage Loan containing the documents set forth in Section 2.01 along with a written certification certifying as to the Mortgage Loan satisfying all requirements under the definition of Replacement Mortgage Loan and the delivery of such Mortgage File and containing the granting language set forth in Section 2.01; and (ii) the Depositor will be deemed to have made, with respect to such Replacement Mortgage Loan, each of the representations and warranties made by it with respect to the related Deleted Mortgage Loan. The Custodian shall review the Mortgage File with respect to each Replacement Mortgage Loan and certify to the Depositor that all documents required by Section 2.01 have been executed and received. For any month in which the Seller substitutes one or more Replacement Mortgage Loans for one or more Deleted Mortgage Loans, the Seller will determine the amount (if any) by which the aggregate principal balance of all such Replacement Mortgage Loans as of the date of substitution and the aggregate prepayment penalties with respect to such Replacement Mortgage Loans is less than the aggregate Stated Principal Balance (after application of the principal portion of the Scheduled Payment due in the month of substitution) and aggregate prepayment penalties of all such Deleted Mortgage Loans. An amount equal to the aggregate of the deficiencies described in the preceding sentence (such amount, the "Substitution Adjustment Amount") shall be deposited into the Certificate Account by the Seller on the Determination Date for the Distribution Date relating to the Prepayment Period during which the related Mortgage Loan became required to be purchased or replaced hereunder. Notwithstanding any other provision of this Agreement, the right to substitute Mortgage Loans pursuant to this Article II shall be subject to the additional limitations that no substitution of a Replacement Mortgage Loan for a Deleted Mortgage Loan shall be made unless the Securities Administrator shall have received an Opinion of Counsel (at the expense of the party seeking to make the substitution) that, under current law, such substitution will not (A) affect adversely the status of any REMIC established hereunder as a REMIC, or of the related "regular interests" as "regular interests" in any such REMIC, or (B) cause any such REMIC to engage in a "prohibited transaction" or prohibited contribution pursuant to the REMIC Provisions. The Servicer shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Replacement Mortgage Loan or Replacement Mortgage Loans. Upon such substitution by the Seller, such Replacement Mortgage Loan or Replacement Mortgage Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and the Sale Agreement, including all applicable representations and warranties thereof included in the Sale Agreement as of the date of substitution.
(d) It is understood and agreed that the representations, warranties and indemnification (i) set forth in this Section 2.03, (ii) of the Seller and the Depositor set forth in the Sale Agreement and assigned to the Trustee by the Depositor hereunder and (iii) of each Transferor, assigned by the Seller to the Depositor pursuant to the Sale Agreement and assigned to the Trustee by the Depositor hereunder shall each survive delivery of the Mortgage Files and the Assignment of Mortgage of each Mortgage Loan to the Trustee and shall continue throughout the term of this Agreement.
(e) The Depositor shall deliver a copy of the Mortgage Loan Schedule to the Servicer on the Closing Date.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Terwin Mortgage Trust, Series TMTS 2005-10he)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, represents and warrants and covenants to the Trustee, for its own benefit Group II Certificate Insurer and Subservicer and the benefit of the Certificateholders, and to the Master Servicer and the Special ServicerTrustee as follows, as of the Closing Date, thatdate hereof:
(i) The Depositor is duly organized and is validly existing as a corporation duly organized, validly existing and in good standing under the laws of the State of DelawareDelaware and has full power and authority (corporate and other) 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.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full corporate power and authority to execute, deliver and perform, and to enter into and consummate all the transactions contemplated by by, this Agreement, Agreement and has duly authorized authorized, by all necessary corporate action on its part, the execution, delivery and performance of this Agreement, ; and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming the due authorization, execution and delivery hereof by each of the other parties hereto, constitutes a validlegal, legal valid and binding obligation of the Depositor, enforceable against the Depositor in accordance with the terms hereofits terms, subject subject, as to enforceability, to (Ai) applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally, generally and (Bii) general principles of equity, regardless of whether such enforcement is considered sought in a proceeding in equity or at law.
(viii) The Depositor is not in violation of, and its execution and delivery of this Agreement by the Depositor, the consummation of the transactions contemplated by this Agreement, and its performance and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Depositor and will not (A) result in a material breach of any term or provision of the charter or by-laws of the Depositor or (B) materially conflict with, result in a violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Depositor is a party or by which it may be bound or (C) constitute a material violation of any statute, order or regulation applicable to the Depositor of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Depositor; and the Depositor is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Depositor's ability to perform or meet any of its obligations under this Agreement.
(iv) No litigation is pending, or, to the best of the Depositor's knowledge, threatened, against the Depositor that would materially and adversely affect the execution, delivery or enforceability of this Agreement will not constitute a violation of, any law, any order or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Depositor's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Depositor to perform its obligations under this Agreement in accordance with the terms hereof.
(v) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Depositor of, or compliance by the Depositor with, this Agreement or the financial condition consummation of the Depositortransactions contemplated hereby, or if any such consent, approval, authorization or order is required, the Depositor has obtained the same. The Depositor hereby represents and warrants to the Trustee with respect to each Mortgage Loan as of the Closing Date, and following the transfer of the Mortgage Loans to it by the Seller, that the Depositor had good title to the Mortgage Loans and the Mortgage Notes were subject to no offsets, claims, defenses or counterclaims.
(vi) The Depositor hereby represents and warrants to the Trustee for the benefit of the Certificateholders that on the Closing Date it has entered into the Sale Agreement with the Seller, that the Seller has made the following representations and warranties with respect to each Mortgage Loan in such Sale Agreement as of the Closing Date, which representations and warranties run to and are for the benefit of the Depositor and the Trustee for the benefit of the Certificateholders and the Group II Certificate Insurer, and as to which the Depositor has assigned to the Trustee for the benefit of the Certificateholders and the Group II Certificate Insurer, pursuant to Section 2.01 hereof, the right to cause the Seller to repurchase a Mortgage Loan as to which there has occurred an uncured breach of representations and warranties in accordance with the provisions of the Sale Agreement.
(1) The Seller is an approved seller of conventional mortgage loans for FNMA or FHLMC and is a mortgagee approved by the Secretary of Housing and Urban Development pursuant to sections 203 and 211 of the National Housing Act.
(2) The information set forth on the Mortgage Loan Schedule is true and correct in all material respects as of the Closing Date.
(3) The Seller will treat the transfer of the Trust Mortgage Loans to the Trustee Depositor as contemplated herein requires no regulatory approval, other than any such approvals as have been obtained, a sale of the Mortgage Loans for all accounting and is not subject to any bulk transfer or similar law in effect in any applicable jurisdictiontax purposes.
(vii4) The Depositor No Mortgage Loan is not transferring more than 59 days delinquent in payment of principal and interest, and no more than 1.60% of the Trust Mortgage Loans to the Trustee with any intent to hinder, delay or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left with unreasonably small assets or capital with which to engage in and conduct its business.
(x) The Depositor 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.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xii) No litigation is pending or, to the best of the Depositor's knowledge, threatened against the Depositor that, if determined adversely to the Depositor, would prohibit the Depositor from entering into this Agreement or that, 30-59 days delinquent in the Depositor's good faith payment of principal and reasonable judgment, is likely to materially and adversely affect either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositorinterest.
(xiii) Except for any actions that are the express responsibility of another party hereunder or under the Mortgage Loan Purchase Agreements, and further except for actions that the Depositor is expressly permitted to complete subsequent to the Closing Date, the Depositor has taken all actions required under applicable law to effectuate the transfer of the Trust Mortgage Loans by the Depositor to the Trustee.
(xiv) Immediately prior to the transfer of the UBS Trust Mortgage Loans to the Trust pursuant to this Agreement (and assuming that the UBS Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Trust Mortgage Loan, free and clear of all liens, claims, encumbrances and other interests), (A) the Depositor had good and marketable title to, and was the sole owner and holder of, each UBS Trust Mortgage Loan; and (B) the Depositor has full right and authority to sell, assign and transfer the UBS Trust Mortgage Loans, exclusive of the servicing rights pertaining thereto.
(b) The Depositor hereby makes to the Trustee, for the Trustee's own benefit and the benefit of the Certificateholders, with respect to each Xxxxxx Trust Mortgage Loan only, the representations and warranties shown on Schedule II hereto, as of the Closing Date or such other date specified in the particular representation and warranty, subject to the exceptions set forth on Schedule III hereto (the headings set forth in Schedule II hereto with respect to each representation and warranty being for convenience of reference only and in no way limiting, expanding or otherwise affecting the scope or subject matter thereof). Except as expressly provided in Section 2.04(a), the Depositor does not make any representations or warranties regarding the UBS Trust Mortgage Loans.
(c) The representations, warranties and covenants of the Depositor set forth in or made pursuant to Section 2.04(a) and Section 2.04(b) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any breach of any of such representations, warranties and covenants, the party discovering such breach shall give prompt written notice thereof to the other parties.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Chase Funding Inc)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, represents and warrants and covenants to the Trustee, for its own benefit and the benefit of the Certificateholders, and to the Master Servicer and the Special ServicerTrustee as follows, as of the Closing Date, that:date hereof
(i) The Depositor is duly organized and is validly existing as a corporation duly organized, validly existing and in good standing under the laws of the State of DelawareDelaware and has full power and authority (corporate and other) 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 and the Sale Agreement.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full corporate power and authority to execute, deliver and perform, and to enter into and consummate all the transactions contemplated by by, this Agreement, Agreement and the Sale Agreement and has duly authorized authorized, by all necessary corporate action on its part, the execution, delivery and performance of this Agreement and the Sale Agreement, ; and has duly executed this Agreement and delivered this Agreement.
(iv) This the Sale Agreement, assuming the due authorization, execution and delivery hereof by each of the other parties hereto, constitutes a validlegal, legal valid and binding obligation of the Depositor, enforceable against the Depositor in accordance with the terms hereofits terms, subject subject, as to enforceability, to (Ai) applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally, generally and (Bii) general principles of equity, regardless of whether such enforcement is considered sought in a proceeding in equity or at law.
(viii) The Depositor is not in violation of, and its execution and delivery of this Agreement and its performance the Sale Agreement by the Depositor, the consummation of the transactions contemplated by this Agreement and the Sale Agreement, and the fulfillment of or compliance with the terms hereof are in the ordinary course of this Agreement business of the Depositor and will not (A) result in a material breach of any term or provision of the charter or by-laws of the Depositor or (B) materially conflict with, result in a violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Depositor is a party or by which it may be bound or (C) constitute a material violation ofof any statute, any law, any order or decree regulation applicable to the Depositor of any court court, regulatory body, administrative agency or arbitergovernmental body having jurisdiction over the Depositor; and the Depositor is not in breach or violation of any material indenture or other material agreement or instrument, or any order, regulation or demand in violation of any federalstatute, state order or local regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or regulatory authority, which violation, in violation may materially impair the Depositor's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Depositor to perform or meet any of its obligations under this Agreement or the financial condition of the DepositorAgreement.
(vi) The transfer of the Trust Mortgage Loans to the Trustee as contemplated herein requires no regulatory approval, other than any such approvals as have been obtained, and is not subject to any bulk transfer or similar law in effect in any applicable jurisdiction.
(vii) The Depositor is not transferring the Trust Mortgage Loans to the Trustee with any intent to hinder, delay or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left with unreasonably small assets or capital with which to engage in and conduct its business.
(x) The Depositor 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.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xiiiv) No litigation is pending or, to the best of the Depositor's knowledge, threatened threatened, against the Depositor that, if determined adversely to the Depositor, that would prohibit the Depositor from entering into this Agreement or that, in the Depositor's good faith and reasonable judgment, is likely to materially and adversely affect either the execution, delivery or enforceability of this Agreement and the Sale Agreement or the ability of the Depositor to perform its obligations under this Agreement or and the financial condition of Sale Agreement in accordance with the Depositorterms hereof.
(xiiiv) 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 Depositor of, or compliance by the Depositor with, this Agreement and the Sale Agreement or the consummation of the transactions contemplated hereby, or if any actions that are such consent, approval, authorization or order is required, the express responsibility of another party hereunder or under Depositor has obtained the same. The Depositor hereby represents and warrants to the Trustee with respect to each Mortgage Loan Purchase Agreements, and further except for actions that the Depositor is expressly permitted to complete subsequent to as of the Closing Date, the Depositor has taken all actions required under applicable law to effectuate and following the transfer of the Trust Mortgage Loans by the Depositor to the Trustee.
(xiv) Immediately prior to the transfer of the UBS Trust Mortgage Loans to it by the Trust pursuant to this Agreement (and assuming that the UBS Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Trust Mortgage LoanSponsor, free and clear of all liens, claims, encumbrances and other interests), (A) the Depositor had good title to the Mortgage Loans and marketable title tothe Mortgage Notes were subject to no offsets, and was the sole owner and holder ofclaims, each UBS Trust liens, mortgage, pledge, charge, security interest, defenses or counterclaims.
(vi) Each Mortgage Loan; and (B) the Depositor Loan in Group One has full right and authority to sell, assign and transfer the UBS Trust Mortgage Loans, exclusive a Stated Principal Balance as of the servicing rights pertaining theretoCut-off Date that complies with the loan limitations of Fannie Mae and Freddie Mac as in effect on the Cut-off Date.
(b) The Depositor hereby makes To xxe extxxx xxxt any fact, condition or event with respect to a Mortgage Loan constitutes a breach of a representation or warranty of the TrusteeSponsor under the Sale Agreement, for the only right or remedy of the Trustee or of any Certificateholder shall be the Trustee's own benefit and right to enforce the benefit obligations of the Certificateholders, Sponsor under any applicable representation or warranty made by it. The Trustee acknowledges that the Depositor shall have no obligation or liability with respect to each Xxxxxx Trust Mortgage Loan only, the representations and warranties shown on Schedule II hereto, as any breach of the Closing Date any representation or such other date specified in the particular representation and warranty, subject warranty with respect to the exceptions set forth on Schedule III hereto Mortgage Loans (the headings except as set forth in Schedule II hereto with respect to each representation and warranty being for convenience of reference only and in no way limiting, expanding or otherwise affecting the scope or subject matter thereofSection 2.03(a)(v). Except as expressly provided in Section 2.04(a), the Depositor does not make ) under any representations or warranties regarding the UBS Trust Mortgage Loanscircumstances.
(c) The representations, warranties and covenants of the Depositor set forth in or made pursuant to Section 2.04(a) and Section 2.04(b) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any the Depositor, the Servicer, or the Trustee of a breach of any of such representationsrepresentations and warranties set forth in the Sale Agreement that adversely and materially affects the value of the related Mortgage Loan, warranties and covenantsprepayment charges or the interests of the Certificateholders, the party discovering such breach shall give prompt written notice thereof to the other parties. Within ninety (90) days of the discovery of a breach of any representation or warranty given to the Trustee by the Depositor, the Sponsor and assigned by the Depositor to the Trustee, the Depositor, or the Sponsor shall either (a) cure such breach in all material respects, (b) repurchase such Mortgage Loan or any property acquired in respect thereof from the Trustee at the Purchase Price or (c) within the two year period following the Closing Date, substitute a Replacement Mortgage Loan for the affected Mortgage Loan. In the event of discovery of a breach of any representation and warranty of the Sponsor or the Depositor, the Trustee shall enforce its rights under the Sale Agreement or thereunder for the benefit of Certificateholders. In the event of a breach of the representations and warranties with respect to the Mortgage Loans set forth in a Sale Agreement, the Trustee shall enforce the right of the Issuing Entity to be indemnified for such breach of representation and warranty. In the event that such breach relates solely to the unenforceability of a prepayment charge, amounts received in respect of such indemnity up to the amount of such prepayment charge shall be distributed pursuant to Section 4.04(b)(i)(B). As provided in the Sale Agreement, if the Sponsor substitutes for a Mortgage Loan for which there is a breach of any representations and warranties which adversely and materially affects the value of such Mortgage Loan and such substitute mortgage loan is not a Replacement Mortgage Loan, under the terms of the Sale Agreement, the Sponsor will, in exchange for such substitute Mortgage Loan, (i) provide the applicable Purchase Price for the affected Mortgage Loan or (ii) within two years of the Closing Date, substitute such affected Mortgage Loan with a Replacement Mortgage Loan. Any such substitution shall not be effected prior to the additional delivery to the Trustee of a Request for Release substantially in the form of Exhibit I and shall not be effected unless it is within two years of the Startup Day. As provided in the Sale Agreement, the Sponsor indemnifies and holds the Issuing Entity, the Trustee, the Depositor, the Servicer and each Certificateholder harmless against any and all taxes, claims, losses, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, fees and expenses that the Issuing Entity, the Trustee, the Depositor, the Servicer and any Certificateholder may sustain in connection with any actions of the Sponsor relating to a repurchase of a Mortgage Loan other than in compliance with the terms of this Section 2.03 and the Sale Agreement, to the extent that any such action causes (i) any federal or state tax to be imposed on the Issuing Entity or any REMIC provided for herein, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup day" under Section 860G(d)(1) of the Code, or (ii) any REMIC created hereunder to fail to qualify as a REMIC at any time that any Certificate is outstanding. With respect to any Mortgage Loan repurchased by the Depositor pursuant to this Agreement or by the Sponsor pursuant to the Sale Agreement, the principal portion of the funds received by the Servicer in respect of such repurchase of a Mortgage Loan will be considered a Principal Prepayment and shall be deposited by the Servicer in the Certificate Account pursuant to Section 3.05. The Trustee, upon receipt of the full amount of the Purchase Price for a Deleted Mortgage Loan, or upon receipt of the Mortgage File for a Replacement Mortgage Loan substituted for a Deleted Mortgage Loan, shall release or cause to be released and reassign to the Depositor or the Sponsor, as applicable, the related Mortgage File for the Deleted Mortgage Loan and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation or warranty, as shall be necessary to vest in such party or its designee or assignee title to any Deleted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Trustee, and the Trustee shall not have any further responsibility with respect to the Mortgage File relating to such Deleted Mortgage Loan. With respect to each Replacement Mortgage Loan to be delivered to the Trustee pursuant to the terms of this Article II in exchange for a Deleted Mortgage Loan: (i) the Depositor or the Sponsor, as applicable, must deliver to the Trustee the Mortgage File for the Replacement Mortgage Loan containing the documents set forth in Section 2.01 along with a written certification certifying as to the delivery of such Mortgage File and containing the granting language set forth in the first sentence of Section 2.01; and (ii) the Depositor will be deemed to have made, with respect to such Replacement Mortgage Loan, each of the representations and warranties made by it with respect to the related Deleted Mortgage Loan. The Trustee shall review the Mortgage File with respect to each Replacement Mortgage Loan and certify to the Depositor that all documents required by Section 2.01 have been executed and received. For any month in which the Sponsor substitutes one or more Replacement Mortgage Loans for one or more Deleted Mortgage Loans, the Sponsor will determine the amount (if any) by which the aggregate principal balance of all such Replacement Mortgage Loans as of the date of substitution and the aggregate prepayment charges with respect to such Replacement Mortgage Loans is less than the aggregate Stated Principal Balance (after application of the principal portion of the Scheduled Payment due in the month of substitution) and aggregate prepayment charges of all such Deleted Mortgage Loans. An amount equal to the aggregate of the deficiencies described in the preceding sentence (such amount, the "Substitution Adjustment Amount") shall be delivered by the Sponsor to the Servicer for deposit into the Collection Account on the Determination Date for the Distribution Date relating to the Prepayment Period during which the related Mortgage Loan became required to be purchased or replaced hereunder. The Sponsor shall give or cause to be given written notice to the Certificateholders that such substitution has taken place, shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Replacement Mortgage Loan or Replacement Mortgage Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the Trustee. Upon such substitution by the Sponsor, such Replacement Mortgage Loan or Replacement Mortgage Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and the Sale Agreement, including all applicable representations and warranties thereof included in the Sale Agreement as of the date of substitution. In addition, the Sponsor shall obtain at its own expense and deliver to the Trustee an Opinion of Counsel addressed to the Trustee to the effect that such substitution will not (a) cause any federal tax to be imposed on the Issuing Entity or any REMIC provided for herein, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup day" under Section 860G(d)(1) of the Code or (b) adversely affect the status of any REMIC provided for herein as a REMIC. If any such Opinion of Counsel can not be delivered, then such substitution may only be effected at such time as the required Opinion of Counsel can be given.
(d) It is understood and agreed that the representations, warranties and indemnification (i) set forth in this Section 2.03 and (ii) of the Sponsor and the Depositor set forth in the Sale Agreement and assigned to the Trustee by the Depositor hereunder shall each survive delivery of the Mortgage Files and the Assignment of Mortgage of each Mortgage Loan to the Trustee and shall continue throughout the term of this Agreement.
Appears in 1 contract
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, represents and warrants and covenants to the Trustee, for its own benefit and the benefit of the Certificateholders, and to the Master Servicer and the Special ServicerTrustee as follows, as of the Closing Date, that:date hereof
(i) The Depositor is duly organized and is validly existing as a corporation duly organized, validly existing and in good standing under the laws of the State of DelawareDelaware and has full power and authority (corporate and other) 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 and the Sale Agreement.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full corporate power and authority to execute, deliver and perform, and to enter into and consummate all the transactions contemplated by by, this Agreement, Agreement and the Sale Agreement and has duly authorized authorized, by all necessary corporate action on its part, the execution, delivery and performance of this Agreement and the Sale Agreement, ; and has duly executed this Agreement and delivered this Agreement.
(iv) This the Sale Agreement, assuming the due authorization, execution and delivery hereof by each of the other parties hereto, constitutes a validlegal, legal valid and binding obligation of the Depositor, enforceable against the Depositor in accordance with the terms hereofits terms, subject subject, as to enforceability, to (Ai) applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally, generally and (Bii) general principles of equity, regardless of whether such enforcement is considered sought in a proceeding in equity or at law.
(viii) The Depositor is not in violation of, and its execution and delivery of this Agreement and its performance the Sale Agreement by the Depositor, the consummation of the transactions contemplated by this Agreement and the Sale Agreement, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Depositor and will not (A) result in a material breach of any term or provision of the charter or by-laws of the Depositor or (B) materially conflict with, result in a violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Depositor is a party or by which it may be bound or (C) constitute a material violation of any statute, order or regulation applicable to the Depositor of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Depositor; and the Depositor is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Depositor's ability to perform or meet any of its obligations under this Agreement.
(iv) No litigation is pending, or, to the best of the Depositor's knowledge, threatened, against the Depositor that would materially and adversely affect the execution, delivery or enforceability of this Agreement will not constitute a violation of, any law, any order and the Sale Agreement or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Depositor's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Depositor to perform its obligations under this Agreement or and the financial condition of Sale Agreement in accordance with the Depositorterms hereof.
(viv) The transfer No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Depositor of, or compliance by the Depositor with, this Agreement and the Sale Agreement or the consummation of the Trust Mortgage Loans to the Trustee as transactions contemplated herein requires no regulatory hereby, or if any such consent, approval, other than any such approvals as have been obtainedauthorization or order is required, and is not subject to any bulk transfer or similar law in effect in any applicable jurisdiction.
(vii) the Depositor has obtained the same. The Depositor is not transferring the Trust Mortgage Loans hereby represents and warrants to the Trustee with any intent respect to hinder, delay or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left with unreasonably small assets or capital with which to engage in and conduct its business.
(x) The Depositor 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.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xii) No litigation is pending or, to the best of the Depositor's knowledge, threatened against the Depositor that, if determined adversely to the Depositor, would prohibit the Depositor from entering into this Agreement or that, in the Depositor's good faith and reasonable judgment, is likely to materially and adversely affect either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(xiii) Except for any actions that are the express responsibility of another party hereunder or under the each Mortgage Loan Purchase Agreements, and further except for actions that the Depositor is expressly permitted to complete subsequent to as of the Closing Date, the Depositor has taken all actions required under applicable law to effectuate and following the transfer of the Trust Mortgage Loans by the Depositor to the Trustee.
(xiv) Immediately prior to the transfer of the UBS Trust Mortgage Loans to it by the Trust pursuant to this Agreement (and assuming that the UBS Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Trust Mortgage LoanSeller, free and clear of all liens, claims, encumbrances and other interests), (A) the Depositor had good title to the Mortgage Loans and marketable title tothe Mortgage Notes were subject to no offsets, and was the sole owner and holder ofclaims, each UBS Trust Mortgage Loan; and (B) the Depositor has full right and authority to sellliens, assign and transfer the UBS Trust Mortgage Loansmortgage, exclusive of the servicing rights pertaining theretopledge, charge, security interest, defenses or counterclaims.
(b) The Depositor hereby makes To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of a representation or warranty of the TrusteeSeller under the Sale Agreement, for the only right or remedy of the Trustee or of any Certificateholder shall be the Trustee's own benefit and right to enforce the benefit obligations of the Certificateholders, Seller under any applicable representation or warranty made by it. The Trustee acknowledges that the Depositor shall have no obligation or liability with respect to each Xxxxxx Trust Mortgage Loan only, the representations and warranties shown on Schedule II hereto, as any breach of the Closing Date any representation or such other date specified in the particular representation and warranty, subject warranty with respect to the exceptions set forth on Schedule III hereto Mortgage Loans (the headings except as set forth in Schedule II hereto with respect to each representation and warranty being for convenience of reference only and in no way limiting, expanding or otherwise affecting the scope or subject matter thereofSection 2.03(a)(v). Except as expressly provided in Section 2.04(a), the Depositor does not make ) under any representations or warranties regarding the UBS Trust Mortgage Loanscircumstances.
(c) The representations, warranties and covenants of the Depositor set forth in or made pursuant to Section 2.04(a) and Section 2.04(b) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any the Depositor, the Servicer or the Trustee of a breach of any of such representationsrepresentations and warranties set forth in the Sale Agreement that adversely and materially affects the value of the related Mortgage Loan, warranties and covenantsprepayment charges or the interests of the Certificateholders, the party discovering such breach shall give prompt written notice thereof to the other parties. Within 90 days of the discovery of a breach of any representation or warranty given to the Trustee by the Depositor, the Seller and assigned to the Trustee, the Depositor, or the Seller shall either (a) cure such breach in all material respects, (b) repurchase such Mortgage Loan or any property acquired in respect thereof from the Trustee at the Purchase Price or (c) within the two year period following the Closing Date, substitute a Replacement Mortgage Loan for the affected Mortgage Loan. In the event of discovery of a breach of any representation and warranty of the Seller or the Depositor, the Trustee shall enforce its rights under the Sale Agreement or thereunder for the benefit of Certificateholders. In the event of a breach of the representations and warranties with respect to the Mortgage Loans set forth in a Sale Agreement, the Trustee shall enforce the right of the Trust Fund to be indemnified for such breach of representation and warranty. In the event that such breach relates solely to the unenforceability of a prepayment charge, amounts received in respect of such indemnity up to the amount of such prepayment charge shall be distributed pursuant to Section 4.04(b)(i)(B). As provided in the Sale Agreement, if the Seller substitutes for a Mortgage Loan for which there is a breach of any representations and warranties which adversely and materially affects the value of such Mortgage Loan and such substitute mortgage loan is not a Replacement Mortgage Loan, under the terms of the Sale Agreement, the Seller will, in exchange for such substitute Mortgage Loan, (i) provide the applicable Purchase Price for the affected Mortgage Loan or (ii) within two years of the Closing Date, substitute such affected Mortgage Loan with a Replacement Mortgage Loan. Any such substitution shall not be effected prior to the additional delivery to the Trustee of a Request for Release substantially in the form of Exhibit I and shall not be effected unless it is within two years of the Startup Day. As provided in the Sale Agreement, the Seller indemnifies and holds the Trust Fund, the Trustee, the Depositor, the Servicer and each Certificateholder harmless against any and all taxes, claims, losses, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, fees and expenses that the Trust Fund, the Trustee, the Depositor, the Servicer and any Certificateholder may sustain in connection with any actions of the Seller relating to a repurchase of a Mortgage Loan other than in compliance with the terms of this Section 2.03 and the Sale Agreement, to the extent that any such action causes (i) any federal or state tax to be imposed on the Trust Fund or any REMIC provided for herein, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup day" under Section 860G(d)(1) of the Code, or (ii) any REMIC created hereunder to fail to qualify as a REMIC at any time that any Certificate is outstanding. With respect to any Mortgage Loan repurchased by the Depositor pursuant to this Agreement or by the Seller pursuant to the Sale Agreement, the principal portion of the funds received by the Servicer in respect of such repurchase of a Mortgage Loan will be considered a Principal Prepayment and shall be deposited by the Servicer in the Certificate Account pursuant to Section 3.05. The Trustee, upon receipt of the full amount of the Purchase Price for a Deleted Mortgage Loan, or upon receipt of the Mortgage File for a Replacement Mortgage Loan substituted for a Deleted Mortgage Loan, shall release or cause to be released and reassign to the Depositor or the Seller, as applicable, the related Mortgage File for the Deleted Mortgage Loan and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation or warranty, as shall be necessary to vest in such party or its designee or assignee title to any Deleted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Trustee, and the Trustee shall not have any further responsibility with respect to the Mortgage File relating to such Deleted Mortgage Loan. With respect to each Replacement Mortgage Loan to be delivered to the Trustee pursuant to the terms of this Article II in exchange for a Deleted Mortgage Loan: (i) the Depositor or the Seller, as applicable, must deliver to the Trustee the Mortgage File for the Replacement Mortgage Loan containing the documents set forth in Section 2.01 along with a written certification certifying as to the delivery of such Mortgage File and containing the granting language set forth in the first sentence of Section 2.01; and (ii) the Depositor will be deemed to have made, with respect to such Replacement Mortgage Loan, each of the representations and warranties made by it with respect to the related Deleted Mortgage Loan. The Trustee shall review the Mortgage File with respect to each Replacement Mortgage Loan and certify to the Depositor that all documents required by Section 2.01 have been executed and received. For any month in which the Seller substitutes one or more Replacement Mortgage Loans for one or more Deleted Mortgage Loans, the Seller will determine the amount (if any) by which the aggregate principal balance of all such Replacement Mortgage Loans as of the date of substitution and the aggregate prepayment charges with respect to such Replacement Mortgage Loans is less than the aggregate Stated Principal Balance (after application of the principal portion of the Scheduled Payment due in the month of substitution) and aggregate prepayment charges of all such Deleted Mortgage Loans. An amount equal to the aggregate of the deficiencies described in the preceding sentence (such amount, the "Substitution Adjustment Amount") shall be delivered by the Seller to the Servicer for deposit into the Collection Account on the Determination Date for the Distribution Date relating to the Prepayment Period during which the related Mortgage Loan became required to be purchased or replaced hereunder. The Seller shall give or cause to be given written notice to the Certificateholders that such substitution has taken place, shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Replacement Mortgage Loan or Replacement Mortgage Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the Trustee. Upon such substitution by the Seller, such Replacement Mortgage Loan or Replacement Mortgage Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and the Sale Agreement, including all applicable representations and warranties thereof included in the Sale Agreement as of the date of substitution. In addition, the Seller shall obtain at its own expense and deliver to the Trustee an Opinion of Counsel addressed to the Trustee to the effect that such substitution will not (a) cause any federal tax to be imposed on the Trust Fund or any REMIC provided for herein, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup day" under Section 860G(d)(1) of the Code or (b) adversely affect the status of any REMIC provided for herein as a REMIC. If any such Opinion of Counsel can not be delivered, then such substitution may only be effected at such time as the required Opinion of Counsel can be given.
(d) It is understood and agreed that the representations, warranties and indemnification (i) set forth in this Section 2.03 and (ii) of the Seller and the Depositor set forth in the Sale Agreement and assigned to the Trustee by the Depositor hereunder shall each survive delivery of the Mortgage Files and the Assignment of Mortgage of each Mortgage Loan to the Trustee and shall continue throughout the term of this Agreement.
Appears in 1 contract
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, represents and warrants and covenants to the TrusteeServicer, for its own benefit the Custodian and the benefit of the Certificateholders, and to the Master Servicer and the Special ServicerTrustee as follows, as of the Closing Date, thatdate hereof:
(i) The Depositor is a corporation duly organized, organized and is validly existing and as a limited liability company in good standing under the laws of the State of DelawareDelaware and has full power and authority (corporate and other) 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 and the Sale Agreement.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full corporate power and authority to execute, deliver and perform, and to enter into and consummate all the transactions contemplated by by, this Agreement, Agreement and the Sale Agreement and has duly authorized authorized, by all necessary corporate action on its part, the execution, delivery and performance of this Agreement and the Sale Agreement, ; and has duly executed this Agreement and delivered this Agreement.
(iv) This the Sale Agreement, assuming the due authorization, execution and delivery hereof by each of the other parties hereto, constitutes a validlegal, legal valid and binding obligation of the Depositor, enforceable against the Depositor in accordance with the terms hereofits terms, subject subject, as to enforceability, to (Ai) applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally, generally and (Bii) general principles of equity, regardless of whether such enforcement is considered sought in a proceeding in equity or at law.
(viii) The Depositor is not in violation of, and its execution and delivery of this Agreement and its performance the Sale Agreement by the Depositor, the consummation of the transactions contemplated by this Agreement and the Sale Agreement, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Depositor and will not (A) result in a material breach of any term or provision of the charter or by-laws of the Depositor or (B) materially conflict with, result in a violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Depositor is a party or by which it may be bound or (C) constitute a material violation of any statute, order or regulation applicable to the Depositor of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Depositor; and the Depositor is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Depositor's ability to perform or meet any of its obligations under this Agreement.
(iv) No litigation is pending, or, to the best of the Depositor's knowledge, threatened, against the Depositor that would materially and adversely affect the execution, delivery or enforceability of this Agreement will not constitute a violation of, any law, any order and the Sale Agreement or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Depositor's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Depositor to perform its obligations under this Agreement and the Sale Agreement in accordance with the terms hereof.
(v) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Depositor of, or compliance by the Depositor with, this Agreement and the Sale Agreement or the financial condition consummation of the transactions contemplated hereby, or if any such consent, approval, authorization or order is required, the Depositor has obtained the same. The Depositor hereby represents and warrants to the Trustee with respect to each Mortgage Loan as of the Closing Date, and following the transfer of the Mortgage Loans to it by the Seller, the Depositor had good title to the Mortgage Loans and the Mortgage Notes were subject to no offsets, claims, liens, mortgage, pledge, charge, security interest, defenses or counterclaims.
(i) The representations and warranties of the Seller with respect to the Mortgage Loans contained in the Sale Agreement were made as of the Closing Date. The Trustee acknowledges that the Depositor shall have no obligation or liability with respect to any breach of any representation or warranty with respect to the Mortgage Loans (except as set forth in Section 2.03(a)(v)) under any circumstances.
(ii) The Depositor makes the following representations and warranties to the parties hereto as to the Mortgage Loans on which the Trustee is deemed to have relied in acquiring the Mortgage Loans. Such representations and warranties speak as of the Closing Date, but shall survive until the termination of this Agreement. Such representations and warranties shall not be waived by any of the parties to this Agreement:
(A) This Agreement creates a valid and continuing security interest (as defined in the Uniform Commercial Code as in force in the relevant jurisdiction) in the Mortgage Loans in favor of the Trustee, which security interest is prior to all other liens, and is enforceable as such as against creditors of and purchasers from the Depositor.
(viB) The transfer Mortgage Loans constitute "instruments" within the meaning of the Trust Uniform Commercial Code as in force in the relevant jurisdiction.
(C) The Depositor owns and has good and marketable title to the Mortgage Loans free and clear of any lien, claim or encumbrance of any Person.
(D) The Depositor has received all consents and approvals required by the terms of the Mortgage Loans to the Trustee as contemplated herein requires no regulatory approval, other than any such approvals as have been obtained, and is not subject to any bulk transfer or similar law in effect in any applicable jurisdiction.
(vii) The Depositor is not transferring sale of the Trust Mortgage Loans to the Trustee with any intent to hinder, delay or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left with unreasonably small assets or capital with which to engage in and conduct its business.
(x) The Depositor 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.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xii) No litigation is pending or, to the best of the Depositor's knowledge, threatened against the Depositor that, if determined adversely to the Depositor, would prohibit the Depositor from entering into this Agreement or that, in the Depositor's good faith and reasonable judgment, is likely to materially and adversely affect either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(xiii) Except for any actions that are the express responsibility of another party hereunder or under the Mortgage Loan Purchase Agreements, and further except for actions that the Depositor is expressly permitted to complete subsequent to the Closing Date, the Depositor has taken all actions required under applicable law to effectuate the transfer of the Trust Mortgage Loans by the Depositor to the Trustee.
(xivE) Immediately prior The Depositor has caused or will have caused, within ten days, the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under applicable law in order to perfect the security interest in the Mortgage Loans granted to the transfer of Trustee hereunder.
(F) Other than the UBS Trust Mortgage Loans security interest granted to the Trust Trustee pursuant to this Agreement (and assuming that the UBS Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Trust Mortgage LoanAgreement, free and clear of all liens, claims, encumbrances and other interests), (A) the Depositor had good and marketable title to, and was the sole owner and holder of, each UBS Trust Mortgage Loan; and (B) the Depositor has full right and authority to sellnot pledged, assign and transfer assigned, sold, granted a security interest in, or otherwise conveyed any of the UBS Trust Mortgage Loans, exclusive . The Depositor has not authorized the filing of and is not aware of any financing statements against the servicing rights pertaining theretoDepositor that include a description of collateral covering the Mortgage Loans other than any financing statement relating to the security interest granted to the Trustee hereunder or that has been terminated. Debtor is not aware of any judgment or tax lien filings against it.
(bG) The Custodian has in its possession all original copies of the Mortgage Notes that constitute or evidence the Mortgage Loans. The Mortgage Notes that constitute or evidence the Mortgage Loans do not have any marks or notations indicating that they have been pledged, assigned or otherwise conveyed to any Person other than the Trustee. All financing statements filed or to be filed against the Depositor in favor of the Trustee in connection herewith describing the Mortgage Loans contain a statement to the following effect: "A purchase of or security interest in any collateral described in this financing statement will violate the rights of the secured party as more fully described in, and subject to the terms of, the related transaction documents."
(iii) The Depositor hereby makes covenants to maintain the Trustee, for the Trustee's own benefit perfection and the benefit priority of the Certificateholders, with respect to each Xxxxxx Trust Mortgage Loan only, the representations and warranties shown on Schedule II hereto, as security interest of the Closing Date or such other date specified in the particular representation and warranty, subject to the exceptions set forth on Schedule III hereto (the headings set forth in Schedule II hereto with respect to each representation and warranty being for convenience of reference only and in no way limiting, expanding or otherwise affecting the scope or subject matter thereof). Except as expressly provided in Section 2.04(a), the Depositor does not make any representations or warranties regarding the UBS Trust Mortgage LoansTrustee created by this Agreement.
(c) The representations, warranties and covenants of the Depositor set forth in or made pursuant to Section 2.04(a) and Section 2.04(b) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any the Depositor, the Servicer or the Trustee of a breach of any of such representationsthe representations and warranties of the Seller under the Sale Agreement that adversely and materially affects the value of the related Mortgage Loan, warranties and covenantsPrepayment Charges or the interests of the Certificateholders, the party discovering such breach shall give prompt written notice thereof to the other parties. Within 90 days of the discovery of such breach of any representation or warranty of the Seller under the Sale Agreement, the Seller, pursuant to the Sale Agreement, is obligated to either (a) cure such breach in all material respects, (b) repurchase such Mortgage Loan or any property acquired in respect thereof from the Trustee at the Purchase Price or (c) within the two year period following the Closing Date, substitute a Replacement Mortgage Loan for the affected Mortgage Loan. In the event of discovery of a breach of any representation and warranty of the Seller, the Trustee shall enforce its rights under the Sale Agreement for the benefit of Certificateholders. In the event that such breach relates solely to the unenforceability of a Prepayment Charge, amounts received in respect of such indemnity up to the amount of such Prepayment Charge shall be distributed pursuant to Section 4.04(b)(i). Any such substitution of a Mortgage Loan shall not be effected prior to the additional delivery to the Custodian of a Request for Release substantially in the form of Exhibit I and shall not be effected unless it is within two years of the Startup Day. As provided in the Sale Agreement, the Seller indemnifies and holds the Trust Fund, the Trustee, the Depositor, the Custodian, the Servicer and each Certificateholder harmless against any and all taxes, claims, losses, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, fees and expenses that the Trust Fund, the Trustee, the Depositor, the Custodian, the Servicer and any Certificateholder may sustain in connection with any actions of the Seller relating to a repurchase of a Mortgage Loan other than in compliance with the terms of the Sale Agreement, to the extent that any such action causes (i) any federal or state tax to be imposed on the Trust Fund or any REMIC provided for herein, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup day" under Section 860G(d)(1) of the Code, or (ii) any REMIC created hereunder to fail to qualify as a REMIC at any time that any Certificate is outstanding. In furtherance of the foregoing, the Sale Agreement provides that if the Seller is not a member of MERS and repurchases a Mortgage Loan which is registered on the MERS System, the Seller, at its own expense and without any right of reimbursement, shall cause MERS to execute and deliver an assignment of the Mortgage in recordable form to transfer the Mortgage from MERS to the Seller and shall cause such Mortgage to be removed from registration on the MERS System in accordance with MERS' rules and regulations. With respect to any Mortgage Loan repurchased by the Depositor pursuant to this Agreement, or by the Seller pursuant to the Sale Agreement, the principal portion of the funds received by the Servicer in respect of such repurchase of a Mortgage Loan will be considered a Principal Prepayment and shall be deposited by the Servicer in the Collection Account pursuant to Section 3.05 and the Servicer shall notify the Trustee of its receipt of the same. The Custodian, upon written receipt of notice from the Servicer of its receipt of the full amount of the Purchase Price for a Deleted Mortgage Loan, or upon receipt of the Mortgage File for a Replacement Mortgage Loan substituted for a Deleted Mortgage Loan, shall release or cause to be released and the Trustee shall reassign to the Depositor or the Seller, as applicable, the related Mortgage File for the Deleted Mortgage Loan and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation or warranty, as shall be necessary to vest in such party or its designee or assignee title to any Deleted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Depositor or the Seller, as applicable, and the Custodian shall have no further responsibility with respect to the Mortgage File relating to such Deleted Mortgage Loan. With respect to each Replacement Mortgage Loan to be delivered to the Custodian pursuant to the terms of this Article II in exchange for a Deleted Mortgage Loan: (i) the Depositor or the Seller (pursuant to the Sale Agreement), as applicable, must deliver to the Custodian the Mortgage File for the Replacement Mortgage Loan containing the documents set forth in Section 2.01 along with a written certification certifying as to the delivery of such Mortgage File and containing the granting language set forth in Section 2.01; and (ii) the Depositor will be deemed to have made, with respect to such Replacement Mortgage Loan, each of the representations and warranties made by it with respect to the related Deleted Mortgage Loan. The Custodian shall review the Mortgage File with respect to each Replacement Mortgage Loan and certify to the Depositor that all documents required by Section 2.01 have been executed and received. For any month in which the Seller substitutes one or more Replacement Mortgage Loans for one or more Deleted Mortgage Loans, the Seller, pursuant to the Sale Agreement, will determine the amount (if any) by which the aggregate principal balance of all such Replacement Mortgage Loans as of the date of substitution and the aggregate Prepayment Charges with respect to such Replacement Mortgage Loans is less than the aggregate Stated Principal Balance (after application of the principal portion of the Scheduled Payment due in the month of substitution) and aggregate Prepayment Charges of all such Deleted Mortgage Loans. Pursuant to the Sale Agreement, an amount equal to the aggregate of the deficiencies described in the preceding sentence (such amount, the "Substitution Adjustment Amount") plus an amount equal to any unreimbursed costs, penalties and/or damages incurred by the Trust Fund in connection with any violation relating to such Deleted Mortgage Loan of any predatory or abusive lending law shall be remitted by the Seller to the Servicer for deposit into the Collection Account on the Determination Date for the Distribution Date relating to the Prepayment Period during which the related Mortgage Loan became required to be purchased or replaced hereunder. Notwithstanding any other provision of this Agreement, the right to substitute Mortgage Loans pursuant to this Article II shall be subject to the additional limitations that no substitution of a Replacement Mortgage Loan for a Deleted Mortgage Loan shall be made unless the Trustee shall have received an Opinion of Counsel (at the expense of the party seeking to make the substitution) that, under current law, such substitution will not (A) affect adversely the status of any REMIC established hereunder as a REMIC, or of the related "regular interests" as "regular interests" in any such REMIC, or (B) cause any such REMIC to engage in a "prohibited transaction" or prohibited contribution pursuant to the REMIC Provisions. The Servicer shall cause the Mortgage Loan Schedule to be amended in accordance with the terms of this Agreement base on information provided to the Servicer. The Depositor shall give or cause to be given written notice to the Certificateholders that such substitution has taken place, shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Replacement Mortgage Loan or Replacement Mortgage Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the Servicer and the Trustee. Upon such substitution by the Seller, such Replacement Mortgage Loan or Replacement Mortgage Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and the Sale Agreement, including all applicable representations and warranties thereof included in the Sale Agreement as of the date of substitution.
(d) It is understood and agreed that the representations, warranties and indemnification (i) set forth in this Section 2.03 and (ii) of the Seller and the Depositor set forth in the Sale Agreement and assigned to the Trustee by the Depositor hereunder shall each survive delivery of the Mortgage Files and the Assignment of Mortgage of each Mortgage Loan to the Trustee and shall continue throughout the term of this Agreement.
(e) The Depositor shall deliver a copy of the Mortgage Loan Schedule to the Servicer on the Closing Date.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Wachovia Mortgage Loan Trust Series 2006-Amn1)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, represents and warrants and covenants to the TrusteeServicer, for its own benefit the Trustee and the benefit of the Certificateholders, and to the Master Servicer and the Special ServicerNIMs Insurer as follows, as of the Closing Date, that:date hereof
(i) The Depositor is duly organized and is validly existing as a corporation duly organized, validly existing and in good standing under the laws of the State of DelawareDelaware and has full power and authority (corporate and other) 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 and the Sale Agreement.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full corporate power and authority to execute, deliver and perform, and to enter into and consummate all the transactions contemplated by by, this Agreement, Agreement and the Sale Agreement and has duly authorized authorized, by all necessary corporate action on its part, the execution, delivery and performance of this Agreement and the Sale Agreement, ; and has duly executed this Agreement and delivered this Agreement.
(iv) This the Sale Agreement, assuming the due authorization, execution and delivery hereof by each of the other parties hereto, constitutes a validlegal, legal valid and binding obligation of the Depositor, enforceable against the Depositor in accordance with the terms hereofits terms, subject subject, as to enforceability, to (Ai) applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally, generally and (Bii) general principles of equity, regardless of whether such enforcement is considered sought in a proceeding in equity or at law.
(viii) The Depositor is not in violation of, and its execution and delivery of this Agreement and its performance the Sale Agreement by the Depositor, the consummation of the transactions contemplated by this Agreement and the Sale Agreement, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Depositor and will not (A) result in a material breach of any term or provision of the charter or by-laws of the Depositor or (B) materially conflict with, result in a violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Depositor is a party or by which it may be bound or (C) constitute a material violation of any statute, order or regulation applicable to the Depositor of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Depositor; and the Depositor is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Depositor's ability to perform or meet any of its obligations under this Agreement.
(iv) No litigation is pending, or, to the best of the Depositor's knowledge, threatened, against the Depositor that would materially and adversely affect the execution, delivery or enforceability of this Agreement will not constitute a violation of, any law, any order and the Sale Agreement or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Depositor's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Depositor to perform its obligations under this Agreement or and the financial condition of Sale Agreement in accordance with the Depositorterms hereof.
(viv) The transfer No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Depositor of, or compliance by the Depositor with, this Agreement and the Sale Agreement or the consummation of the Trust Mortgage Loans to the Trustee as transactions contemplated herein requires no regulatory hereby, or if any such consent, approval, other than any such approvals as have been obtainedauthorization or order is required, and is not subject to any bulk transfer or similar law in effect in any applicable jurisdiction.
(vii) the Depositor has obtained the same. The Depositor is not transferring the Trust Mortgage Loans hereby represents and warrants to the Trustee with any intent respect to hinder, delay or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left with unreasonably small assets or capital with which to engage in and conduct its business.
(x) The Depositor 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.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xii) No litigation is pending or, to the best of the Depositor's knowledge, threatened against the Depositor that, if determined adversely to the Depositor, would prohibit the Depositor from entering into this Agreement or that, in the Depositor's good faith and reasonable judgment, is likely to materially and adversely affect either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(xiii) Except for any actions that are the express responsibility of another party hereunder or under the each Mortgage Loan Purchase Agreements, and further except for actions that the Depositor is expressly permitted to complete subsequent to as of the Closing Date, the Depositor has taken all actions required under applicable law to effectuate and following the transfer of the Trust Mortgage Loans by the Depositor to the Trustee.
(xiv) Immediately prior to the transfer of the UBS Trust Mortgage Loans to it by the Trust pursuant to this Agreement (and assuming that the UBS Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Trust Mortgage LoanSeller, free and clear of all liens, claims, encumbrances and other interests), (A) the Depositor had good title to the Mortgage Loans and marketable title tothe Mortgage Notes were subject to no offsets, and was the sole owner and holder ofclaims, each UBS Trust Mortgage Loan; and (B) the Depositor has full right and authority to sellliens, assign and transfer the UBS Trust Mortgage Loansmortgage, exclusive of the servicing rights pertaining theretopledge, charge, security interest, defenses or counterclaims.
(b) The Depositor hereby makes To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of a representation or warranty of the Seller under the Sale Agreement, the only right or remedy of the Trustee, for the NIMs Insurer or of any Certificateholder shall be the Trustee's own benefit and right to enforce the benefit obligations of the Certificateholders, Seller under any applicable representation or warranty made by it. The Trustee acknowledges that the Depositor shall have no obligation or liability with respect to each Xxxxxx Trust Mortgage Loan only, the representations and warranties shown on Schedule II hereto, as any breach of the Closing Date any representation or such other date specified in the particular representation and warranty, subject warranty with respect to the exceptions set forth on Schedule III hereto Mortgage Loans (the headings except as set forth in Schedule II hereto with respect to each representation and warranty being for convenience of reference only and in no way limiting, expanding or otherwise affecting the scope or subject matter thereofSection 2.03(a)(v). Except as expressly provided in Section 2.04(a), the Depositor does not make ) under any representations or warranties regarding the UBS Trust Mortgage Loanscircumstances.
(c) The representations, warranties and covenants of the Depositor set forth in or made pursuant to Section 2.04(a) and Section 2.04(b) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any the Depositor, the Servicer, the NIMs Insurer, or the Trustee of a breach of any of such representationsrepresentations and warranties set forth in the Sale Agreement that adversely and materially affects the value of the related Mortgage Loan, warranties and covenantsprepayment charges or the interests of the Certificateholders, the party discovering such breach shall give prompt written notice thereof to the other parties. Within 90 days of the discovery of a breach of any representation or warranty given to the Trustee by the Depositor, the Seller and assigned to the Trustee, the Depositor, or the Seller shall either (a) cure such breach in all material respects, (b) repurchase such Mortgage Loan or any property acquired in respect thereof from the Trustee at the Purchase Price or (c) within the two year period following the Closing Date, substitute a Replacement Mortgage Loan for the affected Mortgage Loan. In the event of discovery of a breach of any representation and warranty of the Seller or the Depositor, the Trustee shall enforce its rights under the Sale Agreement or thereunder for the benefit of Certificateholders and the NIMs Insurer. If a breach of the representations and warranties set forth in the Sale Agreement hereof exists solely due to the unenforceability of a prepayment charge, the Trustee shall notify the NIMs Insurer thereof and not seek to enforce the repurchase remedy provided for herein unless directed in writing to do so by the NIMs Insurer. In the event of a breach of the representations and warranties with respect to the Mortgage Loans set forth in a Sale Agreement, the Trustee shall at the request of the NIMs Insurer enforce the right of the Trust Fund and the NIMs Insurer to be indemnified for such breach of representation and warranty. In the event that such breach relates solely to the unenforceability of a prepayment charge, amounts received in respect of such indemnity up to the amount of such prepayment charge shall be distributed pursuant to Section 4.04(b)(i)(B). As provided in the Sale Agreement, if the Seller substitutes for a Mortgage Loan for which there is a breach of any representations and warranties which adversely and materially affects the value of such Mortgage Loan and such substitute mortgage loan is not a Replacement Mortgage Loan, under the terms of the Sale Agreement, the Seller will, in exchange for such substitute Mortgage Loan, (i) provide the applicable Purchase Price for the affected Mortgage Loan or (ii) within two years of the Closing Date, substitute such affected Mortgage Loan with a Replacement Mortgage Loan. Any such substitution shall not be effected prior to the additional delivery to the Trustee of a Request for Release substantially in the form of Exhibit I and shall not be effected unless it is within two years of the Startup Date. As provided in the Sale Agreement, the Seller indemnifies and holds the Trust Fund, the Trustee, the Depositor, the NIMs Insurer, the Servicer and each Certificateholder harmless against any and all taxes, claims, losses, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, fees and expenses that the Trust Fund, the Trustee, the Depositor, the NIMs Insurer, the Servicer and any Certificateholder may sustain in connection with any actions of the Seller relating to a repurchase of a Mortgage Loan other than in compliance with the terms of this Section 2.03 and the Sale Agreement, to the extent that any such action causes (i) any federal or state tax to be imposed on the Trust Fund or any REMIC provided for herein, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup date" under Section 860(d)(1) of the Code, or (ii) any REMIC created hereunder to fail to qualify as a REMIC at any time that any Certificate is outstanding. With respect to any Mortgage Loan repurchased by the Depositor pursuant to this Agreement or by the Seller pursuant to the Sale Agreement, the principal portion of the funds received by the Servicer in respect of such repurchase of a Mortgage Loan will be considered a Principal Prepayment and shall be deposited by the Servicer in the Certificate Account pursuant to Section 3.05. The Trustee, upon receipt of the full amount of the Purchase Price for a Deleted Mortgage Loan, or upon receipt of the Mortgage File for a Replacement Mortgage Loan substituted for a Deleted Mortgage Loan, shall release or cause to be released and reassign to the Depositor or the Seller, as applicable, the related Mortgage File for the Deleted Mortgage Loan and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation or warranty, as shall be necessary to vest in such party or its designee or assignee title to any Deleted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Trustee, and the Trustee shall not have any further responsibility with respect to the Mortgage File relating to such Deleted Mortgage Loan. With respect to each Replacement Mortgage Loan to be delivered to the Trustee pursuant to the terms of this Article II in exchange for a Deleted Mortgage Loan: (i) the Depositor or the Seller, as applicable, must deliver to the Trustee the Mortgage File for the Replacement Mortgage Loan containing the documents set forth in Section 2.01 along with a written certification certifying as to the delivery of such Mortgage File and containing the granting language set forth in the first sentence of Section 2.01; and (ii) the Depositor will be deemed to have made, with respect to such Replacement Mortgage Loan, each of the representations and warranties made by it with respect to the related Deleted Mortgage Loan. The Trustee shall review the Mortgage File with respect to each Replacement Mortgage Loan and certify to the NIMs Insurer and the Depositor that all documents required by Section 2.01 have been executed and received. For any month in which the Seller substitutes one or more Replacement Mortgage Loans for one or more Deleted Mortgage Loans, the Seller will determine the amount (if any) by which the aggregate principal balance of all such Replacement Mortgage Loans as of the date of substitution and the aggregate prepayment penalties with respect to such Replacement Mortgage Loans is less than the aggregate Stated Principal Balance (after application of the principal portion of the Scheduled Payment due in the month of substitution) and aggregate prepayment penalties of all such Deleted Mortgage Loans. An amount equal to the aggregate of the deficiencies described in the preceding sentence (such amount, the "Substitution Adjustment Amount") shall be delivered by the Seller to the Servicer for deposit into the Collection Account on the Determination Date for the Distribution Date relating to the Prepayment Period during which the related Mortgage Loan became required to be purchased or replaced hereunder. The Seller shall give or cause to be given written notice to the Certificateholders and the NIMs Insurer that such substitution has taken place, shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Replacement Mortgage Loan or Replacement Mortgage Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the NIMs Insurer and the Trustee. Upon such substitution by the Seller, such Replacement Mortgage Loan or Replacement Mortgage Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and the Sale Agreement, including all applicable representations and warranties thereof included in the Sale Agreement as of the date of substitution. In addition, the Seller shall obtain at its own expense and deliver to the Trustee and the NIMs Insurer an Opinion of Counsel addressed to the Trustee and the NIMs Insurer to the effect that such substitution will not (a) cause any federal tax to be imposed on the Trust Fund or any REMIC provided for herein, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup date" under Section 860G(d)(1) of the Code or (b) adversely affect the status of any REMIC provided for herein as a REMIC. If any such Opinion of Counsel can not be delivered, then such substitution may only be effected at such time as the required Opinion of Counsel can be given.
(d) It is understood and agreed that the representations, warranties and indemnification (i) set forth in this Section 2.03 and (ii) of the Seller and the Depositor set forth in the Sale Agreement and assigned to the Trustee by the Depositor hereunder shall each survive delivery of the Mortgage Files and the Assignment of Mortgage of each Mortgage Loan to the Trustee and shall continue throughout the term of this Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Merrill Lynch Mort Inv Inc Mort Ln as Bk Ce Ser 2003 Bc4)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, warrants and covenants to the Trustee, for its own benefit and the benefit of the Certificateholders, and to the Master Servicer and the Special Servicer, as of the Closing Date, that:
(i) The Depositor is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full power and authority to enter into and consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and delivery by each of the other parties hereto, constitutes a valid, legal and binding obligation of the Depositor, enforceable against the Depositor in accordance with the terms hereof, subject to (A) applicable bankruptcy, insolvency, reorganization, moratorium and other laws affecting the enforcement of creditors' rights generally, and (B) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law.
(v) The Depositor is not in violation of, and its execution and delivery of this Agreement and its performance and compliance with the terms of this Agreement will not constitute a violation of, any law, any order or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Depositor's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(vi) The transfer of the Trust Mortgage Loans to the Trustee as contemplated herein requires no regulatory approval, other than any such approvals as have been obtained, and is not subject to any bulk transfer or similar law in effect in any applicable jurisdiction.
(vii) The Depositor is not transferring the Trust Mortgage Loans to the Trustee with any intent to hinder, delay or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left with unreasonably small assets or capital with which to engage in and conduct its business.
(x) The Depositor 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.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xii) No litigation is pending or, to the best of the Depositor's knowledge, threatened against the Depositor that, if determined adversely to the Depositor, would prohibit the Depositor from entering into this Agreement or that, in the Depositor's good faith and reasonable judgment, is likely to materially and adversely affect either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(xiii) Except for any actions that are the express responsibility of another party hereunder or under the Mortgage Loan Purchase Agreements, and further except for actions that the Depositor is expressly permitted to complete subsequent to the Closing Date, the Depositor has taken all actions required under applicable law to effectuate the transfer of the Trust Mortgage Loans by the Depositor to the Trustee.
(xiv) Immediately prior to the transfer of the UBS Trust Mortgage Loans to the Trust pursuant to this Agreement (and assuming that the UBS Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Trust Mortgage Loan, free and clear of all liens, claims, encumbrances and other interests), (A) the Depositor had good and marketable title to, and was the sole owner and holder of, each UBS Trust Mortgage Loan; and (B) the Depositor has full right and authority to sell, assign and transfer the UBS Trust Mortgage Loans, exclusive of the servicing rights pertaining thereto.
(xv) Immediately prior to the transfer of the KeyBank Trust Mortgage Loans to the Trust pursuant to this Agreement (and assuming that the KeyBank Mortgage Loan Seller transferred to the Depositor good and marketable title to each KeyBank Trust Mortgage Loan, free and clear of all liens, claims, encumbrances and other interests), (A) the Depositor had good and marketable title to, and was the sole owner and holder of, each KeyBank Trust Mortgage Loan; and (B) the Depositor has full right and authority to sell, assign and transfer the KeyBank Trust Mortgage Loans, exclusive of the servicing rights pertaining thereto.
(b) The Depositor hereby makes to the Trustee, for the Trustee's own benefit and the benefit of the Certificateholders, with respect to each Xxxxxx Lehman Trust Mortgage Loan only, the representations and warranties shown xxxxx on Schedule II hereto, as of the Closing Date or such other date specified in the particular representation and warranty, subject to the exceptions set forth on Schedule III hereto (the headings set forth in Schedule II hereto with respect to each representation and warranty being for convenience of reference only and in no way limiting, expanding or otherwise affecting the scope or subject matter thereof). Except as expressly provided in Section 2.04(a), the Depositor does not make any representations or warranties regarding the UBS Trust Mortgage Loans and the KeyBank Trust Mortgage Loans.
(c) The representations, warranties and covenants of the Depositor set forth in or made pursuant to Section 2.04(a) and Section 2.04(b) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any breach of any of such representations, warranties and covenants, the party discovering such breach shall give prompt written notice thereof to the other parties.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (LB-UBS Commercial Mortgage Trust 2006-C7)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, represents and warrants and covenants to the Trustee, for its own benefit and the benefit of the Certificateholders, and to the Master Servicer and the Special ServicerTrustee as follows, as of the Closing Date, thatdate hereof:
(i) The Depositor is duly organized and is validly existing as a corporation duly organized, validly existing and in good standing under the laws of the State of DelawareDelaware and has full power and authority (corporate and other) 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, the Sale Agreement and the Purchase Agreement.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full corporate power and authority to execute, deliver and perform, and to enter into and consummate all the transactions contemplated by by, this Agreement, the Sale Agreement and the Purchase Agreement and has duly authorized authorized, by all necessary corporate action on its part, the execution, delivery and performance of this Agreement, the Sale Agreement and has duly executed the Purchase Agreement; and delivered this Agreement.
(iv) This , the Sale Agreement and the Purchase Agreement, assuming the due authorization, execution and delivery hereof by each of the other parties hereto, constitutes a validlegal, legal valid and binding obligation of the Depositor, enforceable against the Depositor in accordance with the terms hereofits terms, subject subject, as to enforceability, to (Ai) applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally, generally and (Bii) general principles of equity, regardless of whether such enforcement is considered sought in a proceeding in equity or at law.
(viii) The Depositor is not in violation of, and its execution and delivery of this Agreement, the Sale Agreement and its performance the Purchase Agreement by the Depositor, the consummation of the transactions contemplated by this Agreement, the Sale Agreement and the Purchase Agreement, and the fulfillment of or compliance with the terms hereof are in the ordinary course of this Agreement business of the Depositor and will not (A) result in a material breach of any term or provision of the charter or by-laws of the Depositor or (B) materially conflict with, result in a violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Depositor is a party or by which it may be bound or (C) constitute a material violation ofof any statute, any law, any order or decree regulation applicable to the Depositor of any court court, regulatory body, administrative agency or arbitergovernmental body having jurisdiction over the Depositor; and the Depositor is not in breach or violation of any material indenture or other material agreement or instrument, or any order, regulation or demand in violation of any federalstatute, state order or local regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or regulatory authority, which violation, in violation may materially impair the Depositor's good faith and reasonable judgmentability to perform or meet any of its obligations under this Agreement.
(iv) No litigation is pending, is likely or, to affect the best of the Depositor's knowledge, threatened, against the Depositor that would materially and adversely either affect the execution, delivery or enforceability of this Agreement, the Sale Agreement and the Purchase Agreement or the ability of the Depositor to perform its obligations under this Agreement, the Sale Agreement and the Purchase Agreement in accordance with the terms hereof.
(v) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Depositor of, or compliance by the Depositor with, this Agreement, the Sale Agreement and the Purchase Agreement or the financial condition consummation of the Depositor.
(vi) The transfer of the Trust Mortgage Loans to the Trustee as transactions contemplated herein requires no regulatory hereby, or if any such consent, approval, other than any such approvals as have been obtainedauthorization or order is required, and is not subject to any bulk transfer or similar law in effect in any applicable jurisdiction.
(vii) the Depositor has obtained the same. The Depositor is not transferring the Trust Mortgage Loans hereby represents and warrants to the Trustee with any intent respect to hinder, delay or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left with unreasonably small assets or capital with which to engage in and conduct its business.
(x) The Depositor 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.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xii) No litigation is pending or, to the best of the Depositor's knowledge, threatened against the Depositor that, if determined adversely to the Depositor, would prohibit the Depositor from entering into this Agreement or that, in the Depositor's good faith and reasonable judgment, is likely to materially and adversely affect either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(xiii) Except for any actions that are the express responsibility of another party hereunder or under the each Mortgage Loan Purchase Agreements, and further except for actions that the Depositor is expressly permitted to complete subsequent to as of the Closing Date, the Depositor has taken all actions required under applicable law to effectuate and following the transfer of the Trust Mortgage Loans by the Depositor to the Trustee.
(xiv) Immediately prior to the transfer of the UBS Trust Mortgage Loans to it by the Trust pursuant to this Agreement (and assuming that the UBS Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Trust Mortgage Loanrelated Seller, free and clear of all liens, claims, encumbrances and other interests), (A) the Depositor had good title to the Mortgage Loans and marketable title tothe Mortgage Notes were subject to no offsets, and was the sole owner and holder ofclaims, each UBS Trust Mortgage Loan; and (B) the Depositor has full right and authority to sellliens, assign and transfer the UBS Trust Mortgage Loansmortgage, exclusive of the servicing rights pertaining theretopledge, charge, security interest, defenses or counterclaims.
(b) The Depositor hereby makes to the Trustee, for the Trustee's own benefit representations and the benefit warranties of the Certificateholders, Transferor with respect to each Xxxxxx Trust the Mortgage Loan onlyLoans in the Transfer Agreement, which have been assigned to the Trustee hereunder, were made as of the date specified in the Transfer Agreement. The representations and warranties shown on Schedule II heretoof the Sponsor with respect to the Mortgage Loans contained in the Sale Agreement and FFFC with respect to the Mortgage Loans contained in the Purchase Agreement, which have been assigned to the Trustee hereunder, were made as of the Closing Date Date. To the extent that any fact, condition or such other date specified in event with respect to a Mortgage Loan constitutes a breach of a representation or warranty of the particular representation and warrantySponsor or FFFC under the Sale Agreement or Purchase Agreement, subject to respectively, the exceptions set forth on Schedule III hereto (obligations of the headings Sponsor or FFFC under the Sale Agreement or Purchase Agreement, respectively, shall be enforced by the Depositor against the Sponsor or FFFC, as applicable, as set forth in Schedule II hereto the Sale Agreement or Purchase Agreement, respectively. The Trustee acknowledges that the Depositor shall have no obligation or liability with respect to each any breach of any representation and or warranty being for convenience of reference only and in no way limiting, expanding or otherwise affecting with respect to the scope or subject matter thereof). Except Mortgage Loans (except as expressly provided set forth in Section 2.04(a2.03(a)(v), the Depositor does not make ) under any representations or warranties regarding the UBS Trust Mortgage Loanscircumstances.
(c) The representations, warranties and covenants of the Depositor set forth in or made pursuant to Section 2.04(a) and Section 2.04(b) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any the Depositor, the Servicer, the related Seller or the Trustee (or its custodian) of a breach of any of such representationsrepresentations and warranties that adversely and materially affects the value of the related Mortgage Loan, warranties and covenantsPrepayment Charges or the interests of the Certificateholders, the party discovering such breach shall give prompt written notice thereof to the other parties. Within ninety (90) days of the discovery of such breach of any representation or warranty, the related Seller shall either (a) cure such breach in all material respects, (b) repurchase such Mortgage Loan or any property acquired in respect thereof from the Trustee at the Purchase Price or (c) within the two year period following the Closing Date, substitute a Replacement Mortgage Loan for the affected Mortgage Loan. In the event of discovery of a breach of any representation and warranty of the related Seller, the Trustee's rights shall be enforced under the Sale Agreement or Purchase Agreement, as applicable, for the benefit of Certificateholders. If a breach of the representations and warranties set forth in the Sale Agreement or Purchase Agreement hereof exists solely due to the unenforceability of a Prepayment Charge, the Trustee or the other party having notice thereof shall notify the Servicer thereof and not seek to enforce the repurchase remedy provided for herein unless such Mortgage Loan is not current. In the event that such breach relates solely to the unenforceability of a Prepayment Charge, amounts received in respect of such indemnity up to the amount of such Prepayment Charge shall be distributed pursuant to Section 4.04(b)(i). As provided in the Sale Agreement or the Purchase Agreement, if the Transferor, in the case of the Sale Agreement, or FFFC, in the case of the Purchase Agreement, substitutes for a Mortgage Loan for which there is a breach of any representation or warranty in the Transfer Agreement or the Purchase Agreement, respectively, which adversely and materially affects the value of such Mortgage Loan and such substitute mortgage loan is not a Replacement Mortgage Loan, under the terms of the Sale Agreement or the Purchase Agreement, the related Seller will, in exchange for such substitute Mortgage Loan, (i) provide the applicable Purchase Price for the affected Mortgage Loan or (ii) within two years of the Closing Date, substitute such affected Mortgage Loan with a Replacement Mortgage Loan. Any such substitution shall not be effected prior to the additional delivery to the Trustee of a Request for Release substantially in the form of Exhibit I and shall not be effected unless it is within two years of the Startup Day. As provided in the Sale Agreement or the Purchase Agreement, the related Seller indemnifies and holds the Issuing Entity, the Trustee (or its custodian, as applicable), the Depositor, the Servicer and each Certificateholder harmless against any and all taxes, claims, losses, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, fees and expenses that the Issuing Entity, the Trustee (or its custodian, as applicable), the Depositor, the Servicer and any Certificateholder may sustain in connection with any actions of the related Seller relating to a repurchase of a Mortgage Loan other than in compliance with the terms of this Section 2.03 and the Sale Agreement or Purchase Agreement, as applicable, to the extent that any such action causes (i) any federal or state tax to be imposed on the Issuing Entity or any REMIC provided for herein, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup day" under Section 860G(d)(1) of the Code, or (ii) any REMIC created hereunder to fail to qualify as a REMIC at any time that any Certificate is outstanding. In furtherance of the foregoing, if the related Seller is not a member of MERS and repurchases a Mortgage Loan which is registered on the MERS System, the related Seller, at its own expense and without any right of reimbursement, shall cause MERS to execute and deliver an assignment of the Mortgage in recordable form to transfer the Mortgage from MERS to the related Seller and shall cause such Mortgage to be removed from registration on the MERS System in accordance with MERS' rules and regulations. With respect to any Mortgage Loan repurchased by the related Seller pursuant to the Sale Agreement or Purchase Agreement, the principal portion of the funds received by the Servicer in respect of such repurchase of a Mortgage Loan will be considered a Principal Prepayment and shall be deposited in the Certificate Account pursuant to Section 3.05. Upon receipt by the Trustee of notice from the Servicer of receipt by the Servicer of the full amount of the Purchase Price for a Deleted Mortgage Loan, and upon receipt by the Trustee of the Mortgage File for a Replacement Mortgage Loan substituted for a Deleted Mortgage Loan and a Request for Release, the Trustee shall release and reassign to the related Seller the related Mortgage File for the Deleted Mortgage Loan and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation or warranty, as shall be necessary to vest in such party or its designee or assignee title to any Deleted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Depositor or the related Seller, and the Trustee (and its custodian) shall have no further responsibility with respect to the Mortgage File relating to such Deleted Mortgage Loan. With respect to each Replacement Mortgage Loan to be delivered to the Trustee pursuant to the terms of this Article II in exchange for a Deleted Mortgage Loan: (i) the related Seller must deliver to the Trustee the Mortgage File for the Replacement Mortgage Loan containing the documents set forth in Section 2.01 along with a written certification certifying as to the Mortgage Loan satisfying all requirements under the definition of Replacement Mortgage Loan and the delivery of such Mortgage File and containing the granting language set forth in Section 2.01; and (ii) the Depositor will be deemed to have made, with respect to such Replacement Mortgage Loan, each of the representations and warranties made by it with respect to the related Deleted Mortgage Loan. The Trustee shall review the Mortgage File with respect to each Replacement Mortgage Loan and certify to the Depositor that all documents required by Section 2.01(A)-(B), (C) (if applicable), and (D)-(E) have been executed and received. For any month in which the related Seller substitutes one or more Replacement Mortgage Loans for one or more Deleted Mortgage Loans, the related Seller will determine the amount (if any) by which the aggregate principal balance of all such Replacement Mortgage Loans as of the date of substitution and the aggregate Prepayment Charges with respect to such Replacement Mortgage Loans is less than the aggregate Stated Principal Balance (after application of the principal portion of the Scheduled Payment due in the month of substitution) and aggregate Prepayment Charges of all such Deleted Mortgage Loans. An amount equal to the aggregate of the deficiencies described in the preceding sentence (such amount, the "Substitution Adjustment Amount") plus an amount equal to any unreimbursed costs, penalties and/or damages incurred by the Trust Fund in connection with any violation relating to such Deleted Mortgage Loan of any predatory or abusive lending law shall be remitted by the related Seller to the Trustee for deposit into the Certificate Account by the related Seller on the Determination Date for the Distribution Date relating to the Prepayment Period during which the related Mortgage Loan became required to be purchased or replaced hereunder. Notwithstanding any other provision of this Agreement, the right to substitute Mortgage Loans pursuant to this Article II shall be subject to the additional limitations that no substitution of a Replacement Mortgage Loan for a Deleted Mortgage Loan shall be made unless the Trustee shall have received an Opinion of Counsel (at the expense of the party seeking to make the substitution) that, under current law, such substitution will not (A) affect adversely the status of any REMIC established hereunder as a REMIC, or of the related "regular interests" as "regular interests" in any such REMIC, or (B) cause any such REMIC to engage in a "prohibited transaction" or prohibited contribution pursuant to the REMIC Provisions. The Depositor shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Replacement Mortgage Loan or Replacement Mortgage Loans. Upon such substitution by the related Seller, such Replacement Mortgage Loan or Replacement Mortgage Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and the Sale Agreement, including all applicable representations and warranties thereof included in the Sale Agreement as of the date of substitution.
(d) It is understood and agreed that the representations, warranties and indemnification (i) set forth in this Section 2.03, (ii) of the Sponsor and the Depositor set forth in the Sale Agreement and assigned to the Trustee by the Depositor hereunder, (iii) of FFFC and the Depositor set forth in the Purchase Agreement and assigned to the Trustee by the Depositor hereunder and (iv) of the Transferor, assigned by the Sponsor to the Depositor pursuant to the Sale Agreement and assigned to the Trustee by the Depositor hereunder shall each survive delivery of the Mortgage Files and the Assignment of Mortgage of each Mortgage Loan to the Trustee and shall continue throughout the term of this Agreement.
(e) The Depositor shall deliver a copy of the Mortgage Loan Schedule to the Servicer on the Closing Date.
(f) The Depositor shall notify the Servicer and the Trustee when any NIM Notes are issued and when such NIM Notes are no longer outstanding.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (First Franklin Mortgage Loan Trust, Series 2007-Ff2)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, represents and warrants and covenants to the TrusteeServicer, for its own benefit the Trustee and the benefit of the Certificateholders, and to the Master Servicer and the Special ServicerNIMs Insurer as follows, as of the Closing Date, thatdate hereof:
(i) The Depositor is duly organized and is validly existing as a corporation duly organized, validly existing and in good standing under the laws of the State of DelawareDelaware and has full power and authority (corporate and other) 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 and the Sale Agreement.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full corporate power and authority to execute, deliver and perform, and to enter into and consummate all the transactions contemplated by by, this Agreement, Agreement and the Sale Agreement and has duly authorized authorized, by all necessary corporate action on its part, the execution, delivery and performance of this Agreement and the Sale Agreement, ; and has duly executed this Agreement and delivered this Agreement.
(iv) This the Sale Agreement, assuming the due authorization, execution and delivery hereof by each of the other parties hereto, constitutes a validlegal, legal valid and binding obligation of the Depositor, enforceable against the Depositor in accordance with the terms hereofits terms, subject subject, as to enforceability, to (Ai) applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally, generally and (Bii) general principles of equity, regardless of whether such enforcement is considered sought in a proceeding in equity or at law.
(viii) The Depositor is not in violation of, and its execution and delivery of this Agreement and its performance the Sale Agreement by the Depositor, the consummation of the transactions contemplated by this Agreement and the Sale Agreement, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Depositor and will not (A) result in a material breach of any term or provision of the charter or by-laws of the Depositor or (B) materially conflict with, result in a violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Depositor is a party or by which it may be bound or (C) constitute a material violation of any statute, order or regulation applicable to the Depositor of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Depositor; and the Depositor is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Depositor's ability to perform or meet any of its obligations under this Agreement.
(iv) No litigation is pending, or, to the best of the Depositor's knowledge, threatened, against the Depositor that would materially and adversely affect the execution, delivery or enforceability of this Agreement will not constitute a violation of, any law, any order and the Sale Agreement or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Depositor's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Depositor to perform its obligations under this Agreement or and the financial condition of Sale Agreement in accordance with the Depositorterms hereof.
(viv) The transfer No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Depositor of, or compliance by the Depositor with, this Agreement and the Sale Agreement or the consummation of the Trust Mortgage Loans to the Trustee as transactions contemplated herein requires no regulatory hereby, or if any such consent, approval, other than any such approvals as have been obtainedauthorization or order is required, and is not subject to any bulk transfer or similar law in effect in any applicable jurisdiction.
(vii) the Depositor has obtained the same. The Depositor is not transferring the Trust Mortgage Loans hereby represents and warrants to the Trustee with any intent respect to hinder, delay or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left with unreasonably small assets or capital with which to engage in and conduct its business.
(x) The Depositor 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.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xii) No litigation is pending or, to the best of the Depositor's knowledge, threatened against the Depositor that, if determined adversely to the Depositor, would prohibit the Depositor from entering into this Agreement or that, in the Depositor's good faith and reasonable judgment, is likely to materially and adversely affect either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(xiii) Except for any actions that are the express responsibility of another party hereunder or under the each Mortgage Loan Purchase Agreements, and further except for actions that the Depositor is expressly permitted to complete subsequent to as of the Closing Date, the Depositor has taken all actions required under applicable law to effectuate and following the transfer of the Trust Mortgage Loans by the Depositor to the Trustee.
(xiv) Immediately prior to the transfer of the UBS Trust Mortgage Loans to it by the Trust pursuant to this Agreement (and assuming that the UBS Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Trust Mortgage LoanSeller, free and clear of all liens, claims, encumbrances and other interests), (A) the Depositor had good title to the Mortgage Loans and marketable title tothe Mortgage Notes were subject to no offsets, and was the sole owner and holder ofclaims, each UBS Trust Mortgage Loan; and (B) the Depositor has full right and authority to sellliens, assign and transfer the UBS Trust Mortgage Loansmortgage, exclusive of the servicing rights pertaining theretopledge, charge, security interest, defenses or counterclaims.
(b) The Depositor hereby makes to the Trustee, for the Trustee's own benefit representations and the benefit warranties of the Certificateholders, each Transferor with respect to each Xxxxxx Trust the related Mortgage Loan onlyLoans in the applicable Transfer Agreement, which have been assigned to the representations and warranties shown on Schedule II heretoTrustee hereunder, were made as of the Closing Date or such other date specified in the particular applicable Transfer Agreement (or underlying agreement, if such Transfer Agreement is in the form of an assignment of a prior agreement). To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of both (i) a representation or warranty of the applicable Transferor under the applicable Transfer Agreement and warranty(ii) a representation or warranty of the Seller under the Sale Agreement, subject the only right or remedy of the Trustee, the NIMs Insurer or of any Certificateholder shall be the Trustee's right to enforce the obligations of the applicable Transferor under any applicable representation or warranty made by it. The Trustee acknowledges that the Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the exceptions set forth on Schedule III hereto Mortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the applicable Transferor in the applicable Transfer Agreement, without regard to whether such Transferor fulfills its contractual obligations in respect of such representation or warranty. The Trustee further acknowledges that the Depositor shall have no obligation or liability with respect to any breach of any representation or warranty with respect to the Mortgage Loans (the headings except as set forth in Schedule II hereto with respect to each representation and warranty being for convenience of reference only and in no way limiting, expanding or otherwise affecting the scope or subject matter thereofSection 2.03(a)(v). Except as expressly provided in Section 2.04(a), the Depositor does not make ) under any representations or warranties regarding the UBS Trust Mortgage Loanscircumstances.
(c) The representations, warranties and covenants of the Depositor set forth in or made pursuant to Section 2.04(a) and Section 2.04(b) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any the Depositor, the Servicer, the NIMs Insurer, or the Trustee of a breach of any of such representationsrepresentations and warranties that adversely and materially affects the value of the related Mortgage Loan, warranties and covenantsprepayment charges or the interests of the Certificateholders, the party discovering such breach shall give prompt written notice thereof to the other parties. Within 90 days of the discovery of a breach of any representation or warranty given to the Trustee by the Depositor, any Transferor, the Seller and assigned to the Trustee, the Depositor, such Transferor or the Seller, as applicable, shall either (a) cure such breach in all material respects, (b) repurchase such Mortgage Loan or any property acquired in respect thereof from the Trustee at the Purchase Price or (c) within the two year period following the Closing Date, substitute a Replacement Mortgage Loan for the affected Mortgage Loan. In the event of discovery of a breach of any representation and warranty of any Transferor or the Depositor, the Trustee shall enforce its rights under the applicable Transfer Agreement and the Sale Agreement for the benefit of Certificateholders and the NIMs Insurer. If a breach of the representations and warranties set forth in the Transfer Agreement hereof exists solely due to the unenforceability of a prepayment charge, the Trustee shall notify the NIMs Insurer thereof and not seek to enforce the repurchase remedy provided for herein unless directed in writing to do so by the NIMs Insurer. In the event of a breach of the representations and warranties with respect to the Mortgage Loans set forth in a Transfer Agreement, the Trustee shall at the request of the NIMs Insurer enforce the right of the Trust Fund and the NIMs Insurer to be indemnified for such breach of representation and warranty. In the event that such breach relates solely to the unenforceability of a prepayment charge, amounts received in respect of such indemnity up to the amount of such prepayment charge shall be distributed pursuant to Section 4.04(b)(i)(B). As provided in the Sale Agreement, if the Transferor substitutes for a Mortgage Loan for which there is a breach of any representations and warranties in the related Transfer Agreement which adversely and materially affects the value of such Mortgage Loan and such substitute mortgage loan is not a Replacement Mortgage Loan, under the terms of the Sale Agreement, the Seller will, in exchange for such substitute Mortgage Loan, (i) provide the applicable Purchase Price for the affected Mortgage Loan or (ii) within two years of the Closing Date, substitute such affected Mortgage Loan with a Replacement Mortgage Loan. Any such substitution shall not be effected prior to the additional delivery to the Trustee of a Request for Release substantially in the form of Exhibit I and shall not be effected unless it is within two years of the Startup Date. The Seller indemnifies and holds the Trust Fund, the Trustee, the Depositor, the NIMs Insurer and each Certificateholder harmless against any and all taxes, claims, losses, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, fees and expenses that the Trust Fund, the Trustee, the Depositor, the NIMs Insurer and any Certificateholder may sustain in connection with any actions of the Seller relating to a repurchase of a Mortgage Loan other than in compliance with the terms of this Section 2.03 and the Sale Agreement, to the extent that any such action causes (i) any federal or state tax to be imposed on the Trust Fund or any REMIC provided for herein, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup date" under Section 860(d)(1) of the Code, or (ii) any REMIC created hereunder to fail to qualify as a REMIC at any time that any Certificate is outstanding. With respect to any Mortgage Loan repurchased by the Depositor pursuant to this Agreement, by the Seller pursuant to the Sale Agreement or by any Transferor pursuant to the applicable Transfer Agreement, the principal portion of the funds received by the Servicer in respect of such repurchase of a Mortgage Loan will be considered a Principal Prepayment and shall be deposited by the Servicer in the Collection Account pursuant to Section 3.05. The Trustee, upon receipt of the full amount of the Purchase Price for a Deleted Mortgage Loan, or upon receipt of the Mortgage File for a Replacement Mortgage Loan substituted for a Deleted Mortgage Loan, shall release or cause to be released and reassign to the Depositor, the Seller or the applicable Transferor, as applicable, the related Mortgage File for the Deleted Mortgage Loan and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation or warranty, as shall be necessary to vest in such party or its designee or assignee title to any Deleted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Trustee, and the Trustee shall not have any further responsibility with respect to the Mortgage File relating to such Deleted Mortgage Loan. With respect to each Replacement Mortgage Loan to be delivered to the Trustee pursuant to the terms of this Article II in exchange for a Deleted Mortgage Loan: (i) the Depositor, the applicable Transferor or the Seller, as applicable, must deliver to the Trustee the Mortgage File for the Replacement Mortgage Loan containing the documents set forth in Section 2.01 along with a written certification certifying as to the delivery of such Mortgage File and containing the granting language set forth in Section 2.01; and (ii) the Depositor will be deemed to have made, with respect to such Replacement Mortgage Loan, each of the representations and warranties made by it with respect to the related Deleted Mortgage Loan. The Trustee shall review the Mortgage File with respect to each Replacement Mortgage Loan and certify to the NIMs Insurer and the Depositor that all documents required by Section 2.01 have been executed and received. For any month in which the Seller substitutes one or more Replacement Mortgage Loans for one or more Deleted Mortgage Loans, the Seller will determine the amount (if any) by which the aggregate principal balance of all such Replacement Mortgage Loans as of the date of substitution and the aggregate prepayment penalties with respect to such Replacement Mortgage Loans is less than the aggregate Stated Principal Balance (after application of the principal portion of the Scheduled Payment due in the month of substitution) and aggregate prepayment penalties of all such Deleted Mortgage Loans. An amount equal to the aggregate of the deficiencies described in the preceding sentence (such amount, the "Substitution Adjustment Amount") shall be delivered by the Seller to the Servicer for deposit into the Collection Account on the Determination Date for the Distribution Date relating to the Prepayment Period during which the related Mortgage Loan became required to be purchased or replaced hereunder. Notwithstanding any other provision of this Agreement, the right to substitute Mortgage Loans pursuant to this Article II shall be subject to the additional limitations that no substitution of a Replacement Mortgage Loan for a Deleted Mortgage Loan shall be made unless the Trustee and the NIMs Insurer have received an Opinion of Counsel (at the expense of the party seeking to make the substitution) that, under current law, such substitution will not (A) affect adversely the status of any REMIC established hereunder as a REMIC, or of the related "regular interests" as "regular interests" in any such REMIC, or (B) cause any such REMIC to engage in a "prohibited transaction" or prohibited contribution pursuant to the REMIC Provisions. The Seller shall give or cause to be given written notice to the Certificateholders and the NIMS Insurer that such substitution has taken place, shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Replacement Mortgage Loan or Replacement Mortgage Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the NIMS Insurer and the Trustee. Upon such substitution by the Seller, such Replacement Mortgage Loan or Replacement Mortgage Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and the Sale Agreement, including all applicable representations and warranties thereof included in the Sale Agreement as of the date of substitution. In addition, the Seller shall obtain at its own expense and deliver to the Trustee and the NIMS Insurer an Opinion of Counsel to the effect that such substitution will not (a) cause any federal tax to be imposed on the Trust Fund or any REMIC provided for herein, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup date" under Section 860G(d)(1) of the Code or (b) adversely affect the status of any REMIC provided for herein as a REMIC. If any such Opinion of Counsel can not be delivered, then such substitution may only be effected at such time as the required Opinion of Counsel can be given.
(d) It is understood and agreed that the representations, warranties and indemnification (i) set forth in Section 2.03, (ii) of the Seller and the Depositor set forth in the Sale Agreement and assigned to the Trustee by the Depositor hereunder and (iii) of each Transferor, assigned by the Seller to the Depositor pursuant to the Sale Agreement and assigned to the Trustee by the Depositor hereunder shall each survive delivery of the Mortgage Files and the Assignment of Mortgage of each Mortgage Loan to the Trustee and shall continue throughout the term of this Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Inc)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, represents and warrants and covenants to the TrusteeServicer, for its own benefit the Trustee and the benefit of the Certificateholders, and to the Master Servicer and the Special ServicerNIMs Insurer as follows, as of the Closing Date, that:date hereof
(i) The Depositor is duly organized and is validly existing as a corporation duly organized, validly existing and in good standing under the laws of the State of DelawareDelaware and has full power and authority (corporate and other) 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 and the Sale Agreement.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full corporate power and authority to execute, deliver and perform, and to enter into and consummate all the transactions contemplated by by, this Agreement, Agreement and the Sale Agreement and has duly authorized authorized, by all necessary corporate action on its part, the execution, delivery and performance of this Agreement and the Sale Agreement, ; and has duly executed this Agreement and delivered this Agreement.
(iv) This the Sale Agreement, assuming the due authorization, execution and delivery hereof by each of the other parties hereto, constitutes a validlegal, legal valid and binding obligation of the Depositor, enforceable against the Depositor in accordance with the terms hereofits terms, subject subject, as to enforceability, to (Ai) applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally, generally and (Bii) general principles of equity, regardless of whether such enforcement is considered sought in a proceeding in equity or at law.
(viii) The Depositor is not in violation of, and its execution and delivery of this Agreement and its performance the Sale Agreement by the Depositor, the consummation of the transactions contemplated by this Agreement and the Sale Agreement, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Depositor and will not (A) result in a material breach of any term or provision of the charter or by-laws of the Depositor or (B) materially conflict with, result in a violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Depositor is a party or by which it may be bound or (C) constitute a material violation of any statute, order or regulation applicable to the Depositor of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Depositor; and the Depositor is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Depositor's ability to perform or meet any of its obligations under this Agreement.
(iv) No litigation is pending, or, to the best of the Depositor's knowledge, threatened, against the Depositor that would materially and adversely affect the execution, delivery or enforceability of this Agreement will not constitute a violation of, any law, any order and the Sale Agreement or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Depositor's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Depositor to perform its obligations under this Agreement or and the financial condition of Sale Agreement in accordance with the Depositorterms hereof.
(viv) The transfer No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Depositor of, or compliance by the Depositor with, this Agreement and the Sale Agreement or the consummation of the Trust Mortgage Loans to the Trustee as transactions contemplated herein requires no regulatory hereby, or if any such consent, approval, other than any such approvals as have been obtainedauthorization or order is required, and is not subject to any bulk transfer or similar law in effect in any applicable jurisdiction.
(vii) the Depositor has obtained the same. The Depositor is not transferring the Trust Mortgage Loans hereby represents and warrants to the Trustee with any intent respect to hinder, delay or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left with unreasonably small assets or capital with which to engage in and conduct its business.
(x) The Depositor 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.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xii) No litigation is pending or, to the best of the Depositor's knowledge, threatened against the Depositor that, if determined adversely to the Depositor, would prohibit the Depositor from entering into this Agreement or that, in the Depositor's good faith and reasonable judgment, is likely to materially and adversely affect either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(xiii) Except for any actions that are the express responsibility of another party hereunder or under the each Mortgage Loan Purchase Agreements, and further except for actions that the Depositor is expressly permitted to complete subsequent to as of the Closing Date, the Depositor has taken all actions required under applicable law to effectuate and following the transfer of the Trust Mortgage Loans by the Depositor to the Trustee.
(xiv) Immediately prior to the transfer of the UBS Trust Mortgage Loans to it by the Trust pursuant to this Agreement (and assuming that the UBS Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Trust Mortgage LoanSeller, free and clear of all liens, claims, encumbrances and other interests), (A) the Depositor had good title to the Mortgage Loans and marketable title tothe Mortgage Notes were subject to no offsets, and was the sole owner and holder ofclaims, each UBS Trust Mortgage Loan; and (B) the Depositor has full right and authority to sellliens, assign and transfer the UBS Trust Mortgage Loansmortgage, exclusive of the servicing rights pertaining theretopledge, charge, security interest, defenses or counterclaims.
(b) The Depositor hereby makes To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of a representation or warranty of the Seller under the Sale Agreement, the only right or remedy of the Trustee, for the NIMs Insurer or of any Certificateholder shall be the Trustee's own benefit and right to enforce the benefit obligations of the Certificateholders, Seller under any applicable representation or warranty made by it. The Trustee acknowledges that the Depositor shall have no obligation or liability with respect to each Xxxxxx Trust Mortgage Loan only, the representations and warranties shown on Schedule II hereto, as any breach of the Closing Date any representation or such other date specified in the particular representation and warranty, subject warranty with respect to the exceptions set forth on Schedule III hereto Mortgage Loans (the headings except as set forth in Schedule II hereto with respect to each representation and warranty being for convenience of reference only and in no way limiting, expanding or otherwise affecting the scope or subject matter thereofSection 2.03(a)(v). Except as expressly provided in Section 2.04(a), the Depositor does not make ) under any representations or warranties regarding the UBS Trust Mortgage Loanscircumstances.
(c) The representations, warranties and covenants of the Depositor set forth in or made pursuant to Section 2.04(a) and Section 2.04(b) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any the Depositor, the Servicer, the NIMs Insurer, or the Trustee of a breach of any of such representationsrepresentations and warranties set forth in the Sale Agreement that adversely and materially affects the value of the related Mortgage Loan, warranties and covenantsprepayment charges or the interests of the Certificateholders, the party discovering such breach shall give prompt written notice thereof to the other parties. Within 90 days of the discovery of a breach of any representation or warranty given to the Trustee by the Depositor, the Seller and assigned to the Trustee, the Depositor, or the Seller shall either (a) cure such breach in all material respects, (b) repurchase such Mortgage Loan or any property acquired in respect thereof from the Trustee at the Purchase Price or (c) within the two year period following the Closing Date, substitute a Replacement Mortgage Loan for the affected Mortgage Loan. In the event of discovery of a breach of any representation and warranty of the Seller or the Depositor, the Trustee shall enforce its rights under the Sale Agreement or thereunder for the benefit of Certificateholders and the NIMs Insurer. If a breach of the representations and warranties set forth in the Sale Agreement hereof exists solely due to the unenforceability of a prepayment charge, the Trustee shall notify the NIMs Insurer thereof and not seek to enforce the repurchase remedy provided for herein unless directed in writing to do so by the NIMs Insurer. In the event of a breach of the representations and warranties with respect to the Mortgage Loans set forth in a Sale Agreement, the Trustee shall at the request of the NIMs Insurer enforce the right of the Trust Fund and the NIMs Insurer to be indemnified for such breach of representation and warranty. In the event that such breach relates solely to the unenforceability of a prepayment charge, amounts received in respect of such indemnity up to the amount of such prepayment charge shall be distributed pursuant to Section 4.04(b)(i)(B). As provided in the Sale Agreement, if the Seller substitutes for a Mortgage Loan for which there is a breach of any representations and warranties which adversely and materially affects the value of such Mortgage Loan and such substitute mortgage loan is not a Replacement Mortgage Loan, under the terms of the Sale Agreement, the Seller will, in exchange for such substitute Mortgage Loan, (i) provide the applicable Purchase Price for the affected Mortgage Loan or (ii) within two years of the Closing Date, substitute such affected Mortgage Loan with a Replacement Mortgage Loan. Any such substitution shall not be effected prior to the additional delivery to the Trustee of a Request for Release substantially in the form of Exhibit I and shall not be effected unless it is within two years of the Startup Date. As provided in the Sale Agreement, the Seller indemnifies and holds the Trust Fund, the Trustee, the Depositor, the NIMs Insurer, the Servicer and each Certificateholder harmless against any and all taxes, claims, losses, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, fees and expenses that the Trust Fund, the Trustee, the Depositor, the NIMs Insurer, the Servicer and any Certificateholder may sustain in connection with any actions of the Seller relating to a repurchase of a Mortgage Loan other than in compliance with the terms of this Section 2.03 and the Sale Agreement, to the extent that any such action causes (i) any federal or state tax to be imposed on the Trust Fund or any REMIC provided for herein, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup date" under Section 860(d)(1) of the Code, or (ii) any REMIC created hereunder to fail to qualify as a REMIC at any time that any Certificate is outstanding. With respect to any Mortgage Loan repurchased by the Depositor pursuant to this Agreement or by the Seller pursuant to the Sale Agreement, the principal portion of the funds received by the Servicer in respect of such repurchase of a Mortgage Loan will be considered a Principal Prepayment and shall be deposited by the Servicer in the Certificate Account pursuant to Section 3.05. The Trustee, upon receipt of the full amount of the Purchase Price for a Deleted Mortgage Loan, or upon receipt of the Mortgage File for a Replacement Mortgage Loan substituted for a Deleted Mortgage Loan, shall release or cause to be released and reassign to the Depositor or the Seller, as applicable, the related Mortgage File for the Deleted Mortgage Loan and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation or warranty, as shall be necessary to vest in such party or its designee or assignee title to any Deleted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Trustee, and the Trustee shall not have any further responsibility with respect to the Mortgage File relating to such Deleted Mortgage Loan. With respect to each Replacement Mortgage Loan to be delivered to the Trustee pursuant to the terms of this Article II in exchange for a Deleted Mortgage Loan: (i) the Depositor or the Seller, as applicable, must deliver to the Trustee the Mortgage File for the Replacement Mortgage Loan containing the documents set forth in Section 2.01 along with a written certification certifying as to the delivery of such Mortgage File and containing the granting language set forth in the first sentence of Section 2.01; and (ii) the Depositor will be deemed to have made, with respect to such Replacement Mortgage Loan, each of the representations and warranties made by it with respect to the related Deleted Mortgage Loan. The Trustee shall review the Mortgage File with respect to each Replacement Mortgage Loan and certify to the NIMs Insurer and the Depositor that all documents required by Section 2.01 have been executed and received. For any month in which the Seller substitutes one or more Replacement Mortgage Loans for one or more Deleted Mortgage Loans, the Seller will determine the amount (if any) by which the aggregate principal balance of all such Replacement Mortgage Loans as of the date of substitution and the aggregate prepayment penalties with respect to such Replacement Mortgage Loans is less than the aggregate Stated Principal Balance (after application of the principal portion of the Scheduled Payment due in the month of substitution) and aggregate prepayment penalties of all such Deleted Mortgage Loans. An amount equal to the aggregate of the deficiencies described in the preceding sentence (such amount, the "Substitution Adjustment Amount") shall be delivered by the Seller to the Servicer for deposit into the Collection Account on the Determination Date for the Distribution Date relating to the Prepayment Period during which the related Mortgage Loan became required to be purchased or replaced hereunder. Notwithstanding any other provision of this Agreement, the right to substitute Mortgage Loans pursuant to this Article II shall be subject to the additional limitations that no substitution of a Replacement Mortgage Loan for a Deleted Mortgage Loan shall be made unless the Trustee and the NIMs Insurer have received an Opinion of Counsel addressed to the Trustee and the NIMs Insurer (at the expense of the party seeking to make the substitution) that, under current law, such substitution will not (A) affect adversely the status of any REMIC established hereunder as a REMIC, or of the related "regular interests" as "regular interests" in any such REMIC, or (B) cause any such REMIC to engage in a "prohibited transaction" or prohibited contribution pursuant to the REMIC Provisions. The Seller shall give or cause to be given written notice to the Certificateholders and the NIMs Insurer that such substitution has taken place, shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Replacement Mortgage Loan or Replacement Mortgage Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the NIMs Insurer and the Trustee. Upon such substitution by the Seller, such Replacement Mortgage Loan or Replacement Mortgage Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and the Sale Agreement, including all applicable representations and warranties thereof included in the Sale Agreement as of the date of substitution. In addition, the Seller shall obtain at its own expense and deliver to the Trustee and the NIMs Insurer an Opinion of Counsel addressed to the Trustee and the NIMs Insurer to the effect that such substitution will not (a) cause any federal tax to be imposed on the Trust Fund or any REMIC provided for herein, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup date" under Section 860G(d)(1) of the Code or (b) adversely affect the status of any REMIC provided for herein as a REMIC. If any such Opinion of Counsel can not be delivered, then such substitution may only be effected at such time as the required Opinion of Counsel can be given.
(d) It is understood and agreed that the representations, warranties and indemnification (i) set forth in Section 2.03 and (ii) of the Seller and the Depositor set forth in the Sale Agreement and assigned to the Trustee by the Depositor hereunder shall each survive delivery of the Mortgage Files and the Assignment of Mortgage of each Mortgage Loan to the Trustee and shall continue throughout the term of this Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Merrill Lynch Mort Inv Mort Ln Asst BCK Certs Ser 2003-Bc3)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, represents and warrants and covenants to the Trustee, for its own benefit and the benefit of the Certificateholders, and to the Master Servicer and the Special ServicerTrustee as follows, as of the Closing Date, thatdate hereof:
(i) The Depositor is duly organized and is validly existing as a corporation duly organized, validly existing and in good standing under the laws of the State of DelawareDelaware and has full power and authority (corporate and other) 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 and the Sale Agreement.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full corporate power and authority to execute, deliver and perform, and to enter into and consummate all the transactions contemplated by by, this Agreement, Agreement and the Sale Agreement and has duly authorized authorized, by all necessary corporate action on its part, the execution, delivery and performance of this Agreement and the Sale Agreement, ; and has duly executed this Agreement and delivered this Agreement.
(iv) This the Sale Agreement, assuming the due authorization, execution and delivery hereof by each of the other parties hereto, constitutes a validlegal, legal valid and binding obligation of the Depositor, enforceable against the Depositor in accordance with the terms hereofits terms, subject subject, as to enforceability, to (Ai) applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally, generally and (Bii) general principles of equity, regardless of whether such enforcement is considered sought in a proceeding in equity or at law.
(viii) The Depositor is not in violation of, and its execution and delivery of this Agreement and its performance the Sale Agreement by the Depositor, the consummation of the transactions contemplated by this Agreement and the Sale Agreement, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Depositor and will not (A) result in a material breach of any term or provision of the charter or by-laws of the Depositor or (B) materially conflict with, result in a violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Depositor is a party or by which it may be bound or (C) constitute a material violation of any statute, order or regulation applicable to the Depositor of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Depositor; and the Depositor is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Depositor's ability to perform or meet any of its obligations under this Agreement.
(iv) No litigation is pending, or, to the best of the Depositor's knowledge, threatened, against the Depositor that would materially and adversely affect the execution, delivery or enforceability of this Agreement will not constitute a violation of, any law, any order and the Sale Agreement or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Depositor's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Depositor to perform its obligations under this Agreement or and the financial condition of Sale Agreement in accordance with the Depositorterms hereof.
(viv) The transfer No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Depositor of, or compliance by the Depositor with, this Agreement and the Sale Agreement or the consummation of the Trust Mortgage Loans to the Trustee as transactions contemplated herein requires no regulatory hereby, or if any such consent, approval, other than any such approvals as have been obtainedauthorization or order is required, and is not subject to any bulk transfer or similar law in effect in any applicable jurisdiction.
(vii) the Depositor has obtained the same. The Depositor is not transferring the Trust Mortgage Loans hereby represents and warrants to the Trustee with any intent respect to hinder, delay or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left with unreasonably small assets or capital with which to engage in and conduct its business.
(x) The Depositor 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.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xii) No litigation is pending or, to the best of the Depositor's knowledge, threatened against the Depositor that, if determined adversely to the Depositor, would prohibit the Depositor from entering into this Agreement or that, in the Depositor's good faith and reasonable judgment, is likely to materially and adversely affect either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(xiii) Except for any actions that are the express responsibility of another party hereunder or under the each Mortgage Loan Purchase Agreements, and further except for actions that the Depositor is expressly permitted to complete subsequent to as of the Closing Date, the Depositor has taken all actions required under applicable law to effectuate and following the transfer of the Trust Mortgage Loans by the Depositor to the Trustee.
(xiv) Immediately prior to the transfer of the UBS Trust Mortgage Loans to it by the Trust pursuant to this Agreement (and assuming that the UBS Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Trust Mortgage LoanSponsor, free and clear of all liens, claims, encumbrances and other interests), (A) the Depositor had good title to the Mortgage Loans and marketable title tothe Mortgage Notes were subject to no offsets, and was the sole owner and holder ofclaims, each UBS Trust Mortgage Loan; and (B) the Depositor has full right and authority to sellliens, assign and transfer the UBS Trust Mortgage Loansmortgage, exclusive of the servicing rights pertaining theretopledge, charge, security interest, defenses or counterclaims.
(b) The Depositor hereby makes to the Trustee, for the Trustee's own benefit representations and the benefit warranties of the Certificateholders, Transferor with respect to each Xxxxxx Trust the Mortgage Loan onlyLoans in the Transfer Agreement, which have been assigned to the Trustee hereunder, were made as of the date specified in the Transfer Agreement. The representations and warranties shown on Schedule II heretoof the Sponsor with respect to the Mortgage Loans contained in the Sale Agreement, which have been assigned to the Trustee herein, were made as of the Closing Date Date. To the extent that any fact, condition or such other date specified in event with respect to a Mortgage Loan constitutes a breach of a representation or warranty of the particular representation and warrantySponsor under the Sale Agreement, subject to the exceptions set forth on Schedule III hereto (obligations of the headings Sponsor under the Sale Agreement shall be enforced by the Depositor against the Sponsor, as set forth in Schedule II hereto the Sale Agreement. The Trustee acknowledges that the Depositor shall have no obligation or liability with respect to each any breach of any representation and or warranty being for convenience of reference only and in no way limiting, expanding or otherwise affecting with respect to the scope or subject matter thereof). Except Mortgage Loans (except as expressly provided set forth in Section 2.04(a2.03(a)(v), the Depositor does not make ) under any representations or warranties regarding the UBS Trust Mortgage Loanscircumstances.
(c) The representations, warranties and covenants of the Depositor set forth in or made pursuant to Section 2.04(a) and Section 2.04(b) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any the Depositor, the Servicer or the Trustee (or its custodian) of a breach of any of such representationsrepresentations and warranties that adversely and materially affects the value of the related Mortgage Loan, warranties and covenantsPrepayment Charges or the interests of the Certificateholders, the party discovering such breach shall give prompt written notice thereof to the other parties. Within ninety (90) days of the discovery of such breach of any representation or warranty, the Sponsor shall either (a) cure such breach in all material respects, (b) repurchase such Mortgage Loan or any property acquired in respect thereof from the Trustee at the Purchase Price or (c) within the two year period following the Closing Date, substitute a Replacement Mortgage Loan for the affected Mortgage Loan. In the event of discovery of a breach of any representation and warranty of the Sponsor, the Trustee's rights shall be enforced under the Sale Agreement for the benefit of Certificateholders. If a breach of the representations and warranties set forth in the Purchase Agreement hereof exists solely due to the unenforceability of a Prepayment Charge, the Trustee or the other party having notice thereof shall notify the Servicer thereof and not seek to enforce the repurchase remedy provided for herein unless such Mortgage Loan is not current. In the event that such breach relates solely to the unenforceability of a Prepayment Charge, amounts received in respect of such indemnity up to the amount of such Prepayment Charge shall be distributed pursuant to Section 4.04(b)(i). As provided in the Sale Agreement, if the Sponsor substitutes for a Mortgage Loan for which there is a breach of any representations and warranties in the Purchase Agreement which adversely and materially affects the value of such Mortgage Loan and such substitute mortgage loan is not a Replacement Mortgage Loan, under the terms of the Sale Agreement, the Sponsor will, in exchange for such substitute Mortgage Loan, (i) provide the applicable Purchase Price for the affected Mortgage Loan or (ii) within two years of the Closing Date, substitute such affected Mortgage Loan with a Replacement Mortgage Loan. Any such substitution shall not be effected prior to the additional delivery to the Trustee of a Request for Release substantially in the form of Exhibit I and shall not be effected unless it is within two years of the Startup Day. As provided in the Sale Agreement, the Sponsor indemnifies and holds the Issuing Entity, the Trustee (or its custodian, as applicable), the Depositor, the Servicer and each Certificateholder harmless against any and all taxes, claims, losses, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, fees and expenses that the Issuing Entity, the Trustee (or its custodian, as applicable), the Depositor, the Servicer and any Certificateholder may sustain in connection with any actions of the Sponsor relating to a repurchase of a Mortgage Loan other than in compliance with the terms of this Section 2.03 and the Sale Agreement, to the extent that any such action causes (i) any federal or state tax to be imposed on the Issuing Entity or any REMIC provided for herein, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup day" under Section 860G(d)(1) of the Code, or (ii) any REMIC created hereunder to fail to qualify as a REMIC at any time that any Certificate is outstanding. In furtherance of the foregoing, if the Sponsor is not a member of MERS and repurchases a Mortgage Loan which is registered on the MERS System, the Sponsor, at its own expense and without any right of reimbursement, shall cause MERS to execute and deliver an assignment of the Mortgage in recordable form to transfer the Mortgage from MERS to the Sponsor and shall cause such Mortgage to be removed from registration on the MERS System in accordance with MERS' rules and regulations. With respect to any Mortgage Loan repurchased by the Sponsor pursuant to the Sale Agreement, the principal portion of the funds received by the Servicer in respect of such repurchase of a Mortgage Loan will be considered a Principal Prepayment and shall be deposited in the Certificate Account pursuant to Section 3.05. Upon receipt by the Trustee of notice from the Servicer of receipt by the Servicer of the full amount of the Purchase Price for a Deleted Mortgage Loan, and upon receipt by the Trustee of the Mortgage File for a Replacement Mortgage Loan substituted for a Deleted Mortgage Loan and a Request for Release, the Trustee shall release and reassign to the Sponsor the related Mortgage File for the Deleted Mortgage Loan and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation or warranty, as shall be necessary to vest in such party or its designee or assignee title to any Deleted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Depositor or the Sponsor, and the Trustee (and its custodian) shall have no further responsibility with respect to the Mortgage File relating to such Deleted Mortgage Loan. With respect to each Replacement Mortgage Loan to be delivered to the Trustee pursuant to the terms of this Article II in exchange for a Deleted Mortgage Loan: (i) the Sponsor must deliver to the Trustee the Mortgage File for the Replacement Mortgage Loan containing the documents set forth in Section 2.01 along with a written certification certifying as to the Mortgage Loan satisfying all requirements under the definition of Replacement Mortgage Loan and the delivery of such Mortgage File and containing the granting language set forth in Section 2.01; and (ii) the Depositor will be deemed to have made, with respect to such Replacement Mortgage Loan, each of the representations and warranties made by it with respect to the related Deleted Mortgage Loan. The Trustee shall review the Mortgage File with respect to each Replacement Mortgage Loan and certify to the Depositor that all documents required by Section 2.01(A)-(B), (C) (if applicable), and (D)-(E) have been executed and received. For any month in which the Sponsor substitutes one or more Replacement Mortgage Loans for one or more Deleted Mortgage Loans, the Sponsor will determine the amount (if any) by which the aggregate principal balance of all such Replacement Mortgage Loans as of the date of substitution and the aggregate Prepayment Charges with respect to such Replacement Mortgage Loans is less than the aggregate Stated Principal Balance (after application of the principal portion of the Scheduled Payment due in the month of substitution) and aggregate Prepayment Charges of all such Deleted Mortgage Loans. An amount equal to the aggregate of the deficiencies described in the preceding sentence (such amount, the "Substitution Adjustment Amount") plus an amount equal to any unreimbursed costs, penalties and/or damages incurred by the Trust Fund in connection with any violation relating to such Deleted Mortgage Loan of any predatory or abusive lending law shall be remitted by the Sponsor to the Trustee for deposit into the Certificate Account by the Sponsor on the Determination Date for the Distribution Date relating to the Prepayment Period during which the related Mortgage Loan became required to be purchased or replaced hereunder. Notwithstanding any other provision of this Agreement, the right to substitute Mortgage Loans pursuant to this Article II shall be subject to the additional limitations that no substitution of a Replacement Mortgage Loan for a Deleted Mortgage Loan shall be made unless the Trustee shall have received an Opinion of Counsel (at the expense of the party seeking to make the substitution) that, under current law, such substitution will not (A) affect adversely the status of any REMIC established hereunder as a REMIC, or of the related "regular interests" as "regular interests" in any such REMIC, or (B) cause any such REMIC to engage in a "prohibited transaction" or prohibited contribution pursuant to the REMIC Provisions. The Depositor shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Replacement Mortgage Loan or Replacement Mortgage Loans. Upon such substitution by the Sponsor, such Replacement Mortgage Loan or Replacement Mortgage Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and the Sale Agreement, including all applicable representations and warranties thereof included in the Sale Agreement as of the date of substitution.
(d) It is understood and agreed that the representations, warranties and indemnification (i) set forth in this Section 2.03, (ii) of the Sponsor and the Depositor set forth in the Sale Agreement and assigned to the Trustee by the Depositor hereunder and (iii) of the Transferor, assigned by the Sponsor to the Depositor pursuant to the Sale Agreement and assigned to the Trustee by the Depositor hereunder shall each survive delivery of the Mortgage Files and the Assignment of Mortgage of each Mortgage Loan to the Trustee and shall continue throughout the term of this Agreement.
(e) The Depositor shall deliver a copy of the Mortgage Loan Schedule to the Servicer on the Closing Date.
(f) The Depositor shall notify the Servicer and the Trustee when any NIM Notes are issued and when such NIM Notes are no longer outstanding.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (First Franklin Mortgage Loan Trust, Series 2007-Ffa)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, warrants and covenants to the Trustee, for its own benefit and the benefit of the Certificateholders, and to the Fiscal Agent, the Master Servicer and the Special Servicer, as of the Closing Date, that:
(i) The Depositor is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full power and authority to enter into and consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and delivery by each of the other parties hereto, constitutes a valid, legal and binding obligation of the Depositor, enforceable against the Depositor in accordance with the terms hereof, subject to (A) applicable bankruptcy, insolvency, reorganization, moratorium and other laws affecting the enforcement of creditors' rights generally, and (B) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law.
(v) The Depositor is not in violation of, and its execution and delivery of this Agreement and its performance and compliance with the terms of this Agreement will not constitute a violation of, any law, any order or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Depositor's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(vi) The transfer of the Trust Mortgage Loans to the Trustee as contemplated herein requires no regulatory approval, other than any such approvals as have been obtained, and is not subject to any bulk transfer or similar law in effect in any applicable jurisdiction.
(vii) The Depositor is not transferring the Trust Mortgage Loans to the Trustee with any intent to hinder, delay or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left with unreasonably small assets or capital with which to engage in and conduct its business.
(x) The Depositor 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.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xii) No litigation is pending or, to the best of the Depositor's knowledge, threatened against the Depositor that, if determined adversely to the Depositor, would prohibit the Depositor from entering into this Agreement or that, in the Depositor's good faith and reasonable judgment, is likely to materially and adversely affect either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(xiii) Except for any actions that are the express responsibility of another party hereunder or under the Mortgage Loan Purchase Agreements, and further except for actions that the Depositor is expressly permitted to complete subsequent to the Closing Date, the Depositor has taken all actions required under applicable law to effectuate the transfer of the Trust Mortgage Loans by the Depositor to the Trustee.
(xiv) Immediately prior to the transfer of the UBS Trust Mortgage Loans to the Trust pursuant to this Agreement (and assuming that the UBS Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Trust Mortgage Loan, free and clear of all liens, claims, encumbrances and other interests), (A) the Depositor had good and marketable title to, and was the sole owner and holder of, each UBS Trust Mortgage Loan; and (B) the Depositor has full right and authority to sell, assign and transfer the UBS Trust Mortgage Loans, exclusive of the servicing rights pertaining thereto.
(b) The Depositor hereby makes to the Trustee, for the Trustee's own benefit and the benefit of the Certificateholders, with respect to each Xxxxxx Trust Mortgage Loan only, the representations and warranties shown on Schedule II hereto, as of the Closing Date or such other date specified in the particular representation and warranty, subject to the exceptions set forth on Schedule III hereto (the headings set forth in such Schedule II hereto with respect to each representation and warranty being for convenience of reference only and in no way limiting, expanding or otherwise affecting the scope or subject matter thereof). Except as expressly provided in Section 2.04(a), the Depositor does not make any representations or warranties regarding the UBS Trust Mortgage Loans.
(c) The representations, warranties and covenants of the Depositor set forth in or made pursuant to Section 2.04(a) and Section 2.04(b) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any breach of any of such representations, warranties and covenants, the party discovering such breach shall give prompt written notice thereof to the other parties.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (LB-UBS Commercial Mortgage Trust 2004-C7)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, warrants and covenants to the Trustee, for its own benefit and the benefit of the Certificateholders, and to the Master Servicer and the Special Servicer, Eligible Lender Trustee as of the Closing Date, thatfollows:
(ia) The Depositor is a corporation duly organized, organized and validly existing and as a Delaware corporation in good standing under the laws of the State of Delaware, with power and authority to own its properties and to conduct its business as such properties are currently owned and such business is presently conducted.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iiib) The Depositor has the full corporate power and authority to enter into execute and consummate all transactions contemplated by deliver this Agreement, Agreement and to carry out its terms; the Depositor has full corporate power and authority to sell and assign the property to be sold and assigned to and deposited with the Trust (or with the Eligible Lender Trustee on behalf of the Trust) and the Depositor has duly authorized such sale and assignment and deposit to the Trust (or to the Eligible Lender Trustee on behalf of the Trust) by all necessary corporate action; and the execution, delivery and performance of this Agreement, and Agreement has been duly executed and delivered this Agreementauthorized by the Depositor by all necessary corporate action.
(ivc) This Agreement, assuming due authorization, execution and delivery by each of the other parties hereto, Agreement constitutes a validlegal, legal valid and binding obligation of the Depositor, Depositor enforceable against the Depositor in accordance with the terms hereofits terms, subject to (A) applicable bankruptcy, insolvency, reorganization, moratorium reorganization and other similar laws affecting the enforcement of relating to creditors' rights generally, generally and (B) subject to general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law.
(vd) The Depositor is not in violation of, and its execution and delivery of the transactions contemplated by this Agreement and its performance and compliance with the fulfillment of the terms hereof do not conflict with, result in any breach of this Agreement will not constitute a violation any of the terms and provisions of, any law, any order or decree constitute (with or without notice or lapse of any court time or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Depositor's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(viboth) The transfer of the Trust Mortgage Loans to the Trustee as contemplated herein requires no regulatory approval, other than any such approvals as have been obtained, and is not subject to any bulk transfer or similar law in effect in any applicable jurisdiction.
(vii) The Depositor is not transferring the Trust Mortgage Loans to the Trustee with any intent to hinder, delay or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a)a default under, the value Certificate of the Depositor's assets, either taken at their present fair saleable value Incorporation or at fair valuation, will exceed the amount of the Depositor's debts and obligations, including contingent and unliquidated debts and obligations by-laws of the Depositor, and or any indenture, agreement or other instrument to which the Depositor will not be left with unreasonably small assets is a party or capital with by which it is bound; nor result in the creation or imposition of any Lien upon any of its properties pursuant to engage in and conduct its business.
the terms of any such indenture, agreement or other instrument (x) The Depositor does not intend to, and does not believe that it will, incur debts or obligations beyond its ability other than pursuant to pay such debts and obligations as they mature.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xii) No litigation is pending Basic Documents); nor violate any law or, to the best of the Depositor's knowledge, threatened against any order, rule or regulation applicable to the Depositor thatof any court or of any Federal or state regulatory body, if determined adversely to the Depositor, would prohibit administrative agency or other governmental instrumentality having jurisdiction over the Depositor from entering into this Agreement or that, in the Depositor's good faith and reasonable judgment, is likely to materially and adversely affect either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositorproperties.
(xiii) Except for any actions that are the express responsibility of another party hereunder or under the Mortgage Loan Purchase Agreements, and further except for actions that the Depositor is expressly permitted to complete subsequent to the Closing Date, the Depositor has taken all actions required under applicable law to effectuate the transfer of the Trust Mortgage Loans by the Depositor to the Trustee.
(xiv) Immediately prior to the transfer of the UBS Trust Mortgage Loans to the Trust pursuant to this Agreement (and assuming that the UBS Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Trust Mortgage Loan, free and clear of all liens, claims, encumbrances and other interests), (A) the Depositor had good and marketable title to, and was the sole owner and holder of, each UBS Trust Mortgage Loan; and (B) the Depositor has full right and authority to sell, assign and transfer the UBS Trust Mortgage Loans, exclusive of the servicing rights pertaining thereto.
(be) The Depositor hereby makes to the Trustee, agrees for the Trustee's own benefit and the benefit of the Certificateholders, with respect to each Xxxxxx Trust Mortgage Loan only, Noteholders and the representations and warranties shown on Schedule II hereto, as holder of the Closing Date or such other date specified in Excess Distribution Certificate that it will comply with each of the particular representation and warranty, subject to the exceptions set forth on Schedule III hereto (the headings requirements set forth in Schedule II hereto Article IX, X, and XII of its Certificate of Incorporation and with respect to each representation and warranty being for convenience of reference only and in no way limiting, expanding or otherwise affecting the scope or subject matter thereof). Except as expressly provided in Section 2.04(a), the Depositor does not make any representations or warranties regarding the UBS Trust Mortgage Loans.
(c) The representations, warranties and covenants of the Depositor undertakings set forth in or made pursuant to Section 2.04(a) and Section 2.04(b) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any breach of any of such representations, warranties and covenants, the party discovering such breach shall give prompt written notice thereof to the other partiesAnnex I hereto.
Appears in 1 contract
Samples: Trust Agreement (SLM Funding Corp)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, represents and warrants and covenants to the TrusteeServicer, for its own benefit the NIMs Insurer and the benefit of the Certificateholders, and to the Master Servicer and the Special ServicerTrustee as follows, as of the Closing Date, thatdate hereof:
(i) The Depositor is duly organized and is validly existing as a corporation duly organized, validly existing and in good standing under the laws of the State of DelawareDelaware and has full power and authority (corporate and other) 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 and the Sale Agreement.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full corporate power and authority to execute, deliver and perform, and to enter into and consummate all the transactions contemplated by by, this Agreement, Agreement and the Sale Agreement and has duly authorized authorized, by all necessary corporate action on its part, the execution, delivery and performance of this Agreement and the Sale Agreement, ; and has duly executed this Agreement and delivered this Agreement.
(iv) This the Sale Agreement, assuming the due authorization, execution and delivery hereof by each of the other parties hereto, constitutes a validlegal, legal valid and binding obligation of the Depositor, enforceable against the Depositor in accordance with the terms hereofits terms, subject subject, as to enforceability, to (Ai) applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally, generally and (Bii) general principles of equity, regardless of whether such enforcement is considered sought in a proceeding in equity or at law.
(viii) The Depositor is not in violation of, and its execution and delivery of this Agreement and its performance the Sale Agreement by the Depositor, the consummation of the transactions contemplated by this Agreement and the Sale Agreement, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Depositor and will not (A) result in a material breach of any term or provision of the charter or by-laws of the Depositor or (B) materially conflict with, result in a violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Depositor is a party or by which it may be bound or (C) constitute a material violation of any statute, order or regulation applicable to the Depositor of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Depositor; and the Depositor is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Depositor's ability to perform or meet any of its obligations under this Agreement.
(iv) No litigation is pending, or, to the best of the Depositor's knowledge, threatened, against the Depositor that would materially and adversely affect the execution, delivery or enforceability of this Agreement will not constitute a violation of, any law, any order and the Sale Agreement or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Depositor's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Depositor to perform its obligations under this Agreement or and the financial condition of Sale Agreement in accordance with the Depositorterms hereof.
(viv) The transfer No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Depositor of, or compliance by the Depositor with, this Agreement and the Sale Agreement or the consummation of the Trust Mortgage Loans to the Trustee as transactions contemplated herein requires no regulatory hereby, or if any such consent, approval, other than any such approvals as have been obtainedauthorization or order is required, and is not subject to any bulk transfer or similar law in effect in any applicable jurisdiction.
(vii) the Depositor has obtained the same. The Depositor is not transferring the Trust Mortgage Loans hereby represents and warrants to the Trustee with any intent respect to hinder, delay or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer each Mortgage Loan as of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts Closing Date and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left with unreasonably small assets or capital with which to engage in and conduct its business.
(x) The Depositor 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.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xii) No litigation is pending or, to the best of the Depositor's knowledge, threatened against the Depositor that, if determined adversely to the Depositor, would prohibit the Depositor from entering into this Agreement or that, in the Depositor's good faith and reasonable judgment, is likely to materially and adversely affect either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(xiii) Except for any actions that are the express responsibility of another party hereunder or under the Mortgage Loan Purchase Agreements, and further except for actions that the Depositor is expressly permitted to complete subsequent to the Closing Date, the Depositor has taken all actions required under applicable law to effectuate following the transfer of the Trust Mortgage Loans by the Depositor to the Trustee.
(xiv) Immediately prior to the transfer of the UBS Trust Mortgage Loans to it by the Trust pursuant to this Agreement (and assuming that the UBS Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Trust Mortgage LoanSponsor, free and clear of all liens, claims, encumbrances and other interests), (A) the Depositor had good title to the Mortgage Loans and marketable title tothe Mortgage Notes were subject to no offsets, and was the sole owner and holder ofclaims, each UBS Trust Mortgage Loan; and (B) the Depositor has full right and authority to sellliens, assign and transfer the UBS Trust Mortgage Loansmortgage, exclusive of the servicing rights pertaining theretopledge, charge, security interest, defenses or counterclaims.
(b) The Depositor hereby makes representations and warranties of the Transferor with respect to the Mortgage Loans contained in the Transfer Agreement were made as of the date of the Transfer Agreement and brought forward to the Closing Date pursuant to the Bring Down Letter. The representations and warranties of the Transferor with respect to the Mortgage Loans contained in the Bring Down Letter were made as of the Closing Date. The representations and warranties of the Sponsor with respect to the Mortgage Loans contained in the Sale Agreement were made as of the Closing Date. To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of a representation or warranty of the Transferor under the Transfer Agreement (whether or not such fact, condition or event would also constitute a breach of a representation or warranty of the Sponsor under the Sale Agreement), the only rights or remedies of the Trustee, the NIMs Insurer or of any Certificateholder shall be first, the Trustee's right to enforce the obligations of the Transferor under such applicable representation or warranty made by it and, second, only if the Transferor is unable or unwilling to fulfill its obligations to cure or repurchase such Mortgage Loan, the Trustee shall exercise its right to enforce any rights it may have against the Sponsor under the Sale Agreement with respect to such representation or warranty; provided, that in the event the Trustee shall have received a copy of any Transferor Affirmation Notice, the Trustee shall only be entitled to enforce any rights it has against the Transferor under the Transfer Agreement and shall not have any rights against the Sponsor under the Sale Agreement with respect to such representation or warranty. To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of a representation or warranty made by the Sponsor in the Sale Agreement that does not also constitute a breach of a representation or warranty of the Transferor under the Transfer Agreement, the Trustee shall enforce any rights it may have against the Sponsor under the Sale Agreement. In furtherance of the above, the Sponsor expressly acknowledges that prior to the issuance of a Transferor Affirmation Notice, it shall be obligated and liable to the Trustee, for the Trustee's own benefit NIMs Insurer and the benefit Certificateholders for any breach of a representation or warranty made under the Transfer Agreement, but only after the Transferor evidences that it is unwilling or unable to fulfill its contractual obligations under the Transfer Agreement. The Trustee acknowledges that the Depositor shall have no obligation or liability with respect to any breach of any representation or warranty with respect to the Mortgage Loans (except as set forth in Section 2.03(a)(v)) under any circumstances. In addition to the representations and warranties of the CertificateholdersTransferor in the Transfer Agreement that were brought forward to the Closing Date pursuant to the Bring Down Letter, with respect to each Xxxxxx Trust Mortgage Loan onlyLoan, the representations and warranties shown on Schedule II heretoTransferor made certain additional covenants regarding such Mortgage Loan, as of the Closing Date or such other date specified in the particular representation and warranty, subject to the exceptions set forth on Schedule III hereto (the headings set forth in Schedule II hereto with the Transfer Agreement. With respect to each representation and warranty being for convenience of reference only and in no way limiting, expanding or otherwise affecting the scope or subject matter thereof). Except as expressly provided in Section 2.04(a), the Depositor does not make any representations or warranties regarding the UBS Trust Mortgage Loans.
(c) The representations, warranties and covenants of the Depositor set forth in or made pursuant to Section 2.04(a) and Section 2.04(b) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any breach of any such additional covenants that materially and adversely affects the interests of the Certificateholders in such representations, warranties and covenantsMortgage Loan, the party discovering such breach Sponsor shall give prompt written notice thereof to the other parties.(1)
Appears in 1 contract
Samples: Pooling and Servicing Agreement (OwnIt Mortgage Loan Trust Series 2006-4)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, represents and warrants and covenants to the Trustee, for its own benefit and the benefit of the Certificateholders, and to the Master Servicer and the Special ServicerTrustee as follows, as of the Closing Date, thatdate hereof:
(i) The Depositor is duly organized and is validly existing as a corporation duly organized, validly existing and in good standing under the laws of the State of DelawareDelaware and has full power and authority (corporate and other) 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 and the Sale Agreement.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full corporate power and authority to execute, deliver and perform, and to enter into and consummate all the transactions contemplated by by, this Agreement, Agreement and the Sale Agreement and has duly authorized authorized, by all necessary corporate action on its part, the execution, delivery and performance of this Agreement and the Sale Agreement, ; and has duly executed this Agreement and delivered this Agreement.
(iv) This the Sale Agreement, assuming the due authorization, execution and delivery hereof by each of the other parties hereto, constitutes a validlegal, legal valid and binding obligation of the Depositor, enforceable against the Depositor in accordance with the terms hereofits terms, subject subject, as to enforceability, to (Ai) applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally, generally and (Bii) general principles of equity, regardless of whether such enforcement is considered sought in a proceeding in equity or at law.
(viii) The Depositor is not in violation of, and its execution and delivery of this Agreement and its performance the Sale Agreement by the Depositor, the consummation of the transactions contemplated by this Agreement and the Sale Agreement, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Depositor and will not (A) result in a material breach of any term or provision of the charter or by-laws of the Depositor or (B) materially conflict with, result in a violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Depositor is a party or by which it may be bound or (C) constitute a material violation of any statute, order or regulation applicable to the Depositor of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Depositor; and the Depositor is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Depositor's ability to perform or meet any of its obligations under this Agreement.
(iv) No litigation is pending, or, to the best of the Depositor's knowledge, threatened, against the Depositor that would materially and adversely affect the execution, delivery or enforceability of this Agreement will not constitute a violation of, any law, any order and the Sale Agreement or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Depositor's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Depositor to perform its obligations under this Agreement or and the financial condition of Sale Agreement in accordance with the Depositorterms hereof.
(viv) The transfer No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Depositor of, or compliance by the Depositor with, this Agreement and the Sale Agreement or the consummation of the Trust Mortgage Loans to the Trustee as transactions contemplated herein requires no regulatory hereby, or if any such consent, approval, other than any such approvals as have been obtainedauthorization or order is required, and is not subject to any bulk transfer or similar law in effect in any applicable jurisdiction.
(vii) the Depositor has obtained the same. The Depositor is not transferring the Trust Mortgage Loans hereby represents and warrants to the Trustee with any intent respect to hinder, delay or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left with unreasonably small assets or capital with which to engage in and conduct its business.
(x) The Depositor 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.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xii) No litigation is pending or, to the best of the Depositor's knowledge, threatened against the Depositor that, if determined adversely to the Depositor, would prohibit the Depositor from entering into this Agreement or that, in the Depositor's good faith and reasonable judgment, is likely to materially and adversely affect either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(xiii) Except for any actions that are the express responsibility of another party hereunder or under the each Mortgage Loan Purchase Agreements, and further except for actions that the Depositor is expressly permitted to complete subsequent to as of the Closing Date, the Depositor has taken all actions required under applicable law to effectuate and following the transfer of the Trust Mortgage Loans by the Depositor to the Trustee.
(xiv) Immediately prior to the transfer of the UBS Trust Mortgage Loans to it by the Trust pursuant to this Agreement (and assuming that the UBS Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Trust Mortgage LoanSponsor, free and clear of all liens, claims, encumbrances and other interests), (A) the Depositor had good title to the Mortgage Loans and marketable title tothe Mortgage Notes were subject to no offsets, and was the sole owner and holder ofclaims, each UBS Trust Mortgage Loan; and (B) the Depositor has full right and authority to sellliens, assign and transfer the UBS Trust Mortgage Loansmortgage, exclusive of the servicing rights pertaining theretopledge, charge, security interest, defenses or counterclaims.
(b) The Depositor hereby makes to the Trustee, for the Trustee's own benefit representations and the benefit warranties of the Certificateholders, Transferor with respect to each Xxxxxx Trust the Mortgage Loan onlyLoans in the Transfer Agreement, which have been assigned to the representations and warranties shown on Schedule II heretoTrustee hereunder, were made as of the Closing Date or such other date as specified in the particular Transfer Agreement. The Trustee acknowledges that the Depositor shall have no obligation or liability with respect to any breach of any representation and warranty, subject or warranty with respect to the exceptions set forth on Schedule III hereto Mortgage Loans (the headings except as set forth in Schedule II hereto with respect to each representation and warranty being for convenience of reference only and in no way limiting, expanding or otherwise affecting the scope or subject matter thereofSection 2.03(a)(v). Except as expressly provided in Section 2.04(a), the Depositor does not make ) under any representations or warranties regarding the UBS Trust Mortgage Loanscircumstances.
(c) The representations, warranties and covenants of the Depositor set forth in or made pursuant to Section 2.04(a) and Section 2.04(b) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any the Depositor, the Servicer, the Sponsor or the Trustee (or its custodian) of a breach of any of such representationsrepresentations and warranties that adversely and materially affects the value of the related Mortgage Loan, warranties and covenantsPrepayment Charges or the interests of the Certificateholders, the party discovering such breach shall give prompt written notice thereof to the other parties. Within ninety (90) days of the discovery of such breach of any representation or warranty, the Depositor shall cause the Transferor to either (a) cure such breach in all material respects, (b) repurchase such Mortgage Loan or any property acquired in respect thereof from the Trustee at the Purchase Price or (c) within the two year period following the Closing Date, substitute a Replacement Mortgage Loan for the affected Mortgage Loan. If a breach of the representations and warranties set forth in the Transfer Agreement hereof exists solely due to the unenforceability of a Prepayment Charge, the Trustee or the other party having notice thereof shall notify the Servicer thereof and not seek to enforce the repurchase remedy provided for herein unless such Mortgage Loan is not current. In the event that such breach relates solely to the unenforceability of a Prepayment Charge, amounts received in respect of such indemnity up to the amount of such Prepayment Charge shall be distributed pursuant to Section 4.04(b)(i). As provided in the Transfer Agreement, if the Transferor substitutes for a Mortgage Loan for which there is a breach of any representation or warranty in the Transfer Agreement, which adversely and materially affects the value of such Mortgage Loan and such substitute mortgage loan is not a Replacement Mortgage Loan, under the terms of the Transfer Agreement, the Transferor will, in exchange for such substitute Mortgage Loan, (i) provide the applicable Purchase Price for the affected Mortgage Loan or (ii) within two years of the Closing Date, substitute such affected Mortgage Loan with a Replacement Mortgage Loan. Any such substitution shall not be effected prior to the additional delivery to the Trustee of a Request for Release substantially in the form of Exhibit I and shall not be effected unless it is within two years of the Startup Day. As provided in the Transfer Agreement, the Transferor indemnifies and holds the Issuing Entity, the Trustee (or its custodian, as applicable), the Depositor, the Servicer and each Certificateholder harmless against any and all taxes, claims, losses, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, fees and expenses that the Issuing Entity, the Trustee (or its custodian, as applicable), the Depositor, the Servicer and any Certificateholder may sustain in connection with any actions of the Sponsor relating to a repurchase of a Mortgage Loan other than in compliance with the terms of this Section 2.03 and the Transfer Agreement, as applicable, to the extent that any such action causes (i) any federal or state tax to be imposed on the Issuing Entity or any REMIC provided for herein, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup day" under Section 860G(d)(1) of the Code, or (ii) any REMIC created hereunder to fail to qualify as a REMIC at any time that any Certificate is outstanding. In furtherance of the foregoing, if the Transferor is not a member of MERS and repurchases a Mortgage Loan which is registered on the MERS System, the Transferor, at its own expense and without any right of reimbursement, shall cause MERS to execute and deliver an assignment of the Mortgage in recordable form to transfer the Mortgage from MERS to the Transferor and shall cause such Mortgage to be removed from registration on the MERS System in accordance with MERS' rules and regulations. With respect to any Mortgage Loan repurchased by the Transferor pursuant to the Transfer Agreement, the principal portion of the funds received by the Servicer in respect of such repurchase of a Mortgage Loan will be considered a Principal Prepayment and shall be deposited in the Certificate Account pursuant to Section 3.05. Upon receipt by the Trustee of notice from the Servicer of receipt by the Servicer of the full amount of the Purchase Price for a Deleted Mortgage Loan, and upon receipt by the Trustee of the Mortgage File for a Replacement Mortgage Loan substituted for a Deleted Mortgage Loan and a Request for Release, the Trustee shall release and reassign to the Transferor the related Mortgage File for the Deleted Mortgage Loan and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation or warranty, as shall be necessary to vest in such party or its designee or assignee title to any Deleted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Depositor or the Transferor, and the Trustee (and its custodian) shall have no further responsibility with respect to the Mortgage File relating to such Deleted Mortgage Loan. With respect to each Replacement Mortgage Loan to be delivered to the Trustee pursuant to the terms of this Article II in exchange for a Deleted Mortgage Loan: (i) the Transferor must deliver to the Trustee the Mortgage File for the Replacement Mortgage Loan containing the documents set forth in Section 2.01 along with a written certification certifying as to the Mortgage Loan satisfying all requirements under the definition of Replacement Mortgage Loan and the delivery of such Mortgage File and containing the granting language set forth in Section 2.01; and (ii) the Depositor will be deemed to have made, with respect to such Replacement Mortgage Loan, each of the representations and warranties made by it with respect to the related Deleted Mortgage Loan. The Trustee shall review the Mortgage File with respect to each Replacement Mortgage Loan and certify to the Depositor that all documents required by Section 2.01(A)-(B), (C) (if applicable), and (D)-(E) have been executed and received. For any month in which the Transferor substitutes one or more Replacement Mortgage Loans for one or more Deleted Mortgage Loans, the Transferor will determine the amount (if any) by which the aggregate principal balance of all such Replacement Mortgage Loans as of the date of substitution and the aggregate Prepayment Charges with respect to such Replacement Mortgage Loans is less than the aggregate Stated Principal Balance (after application of the principal portion of the Scheduled Payment due in the month of substitution) and aggregate Prepayment Charges of all such Deleted Mortgage Loans. An amount equal to the aggregate of the deficiencies described in the preceding sentence (such amount, the "Substitution Adjustment Amount") plus an amount equal to any unreimbursed costs, penalties and/or damages incurred by the Trust Fund in connection with any violation relating to such Deleted Mortgage Loan of any predatory or abusive lending law shall be remitted by the Transferor to the Trustee for deposit into the Certificate Account by the Transferor on the Determination Date for the Distribution Date relating to the Prepayment Period during which the related Mortgage Loan became required to be purchased or replaced hereunder. Notwithstanding any other provision of this Agreement, the right to substitute Mortgage Loans pursuant to this Article II shall be subject to the additional limitations that no substitution of a Replacement Mortgage Loan for a Deleted Mortgage Loan shall be made unless the Trustee shall have received an Opinion of Counsel (at the expense of the party seeking to make the substitution) that, under current law, such substitution will not (A) affect adversely the status of any REMIC established hereunder as a REMIC, or of the related "regular interests" as "regular interests" in any such REMIC, or (B) cause any such REMIC to engage in a "prohibited transaction" or prohibited contribution pursuant to the REMIC Provisions. The Depositor shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Replacement Mortgage Loan or Replacement Mortgage Loans. Upon such substitution by the Transferor, such Replacement Mortgage Loan or Replacement Mortgage Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and the Sale Agreement, including all applicable representations and warranties thereof included in the Sale Agreement as of the date of substitution.
(d) It is understood and agreed that the representations, warranties and indemnification (i) set forth in this Section 2.03, (ii) of the Sponsor and the Depositor set forth in the Sale Agreement and assigned to the Trustee by the Depositor hereunder and (iii) of the Transferor in the Transfer Agreement, assigned by the Sponsor to the Depositor pursuant to the Sale Agreement and assigned to the Trustee by the Depositor hereunder shall each survive delivery of the Mortgage Files and the Assignment of Mortgage of each Mortgage Loan to the Trustee and shall continue throughout the term of this Agreement.
(e) The Depositor shall deliver a copy of the Mortgage Loan Schedule to the Servicer on the Closing Date.
(f) The Depositor shall notify the Servicer and the Trustee when any NIM Notes are issued and when such NIM Notes are no longer outstanding.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Inc)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, represents and warrants and covenants to the TrusteeServicer, for its own benefit the Trustee and the benefit of the Certificateholders, and to the Master Servicer and the Special ServicerNIMs Insurer as follows, as of the Closing Date, thatdate hereof:
(i) The Depositor is duly organized and is validly existing as a corporation duly organized, validly existing and in good standing under the laws of the State of DelawareDelaware and has full power and authority (corporate and other) 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 and the Sale Agreement.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full corporate power and authority to execute, deliver and perform, and to enter into and consummate all the transactions contemplated by by, this Agreement, Agreement and the Sale Agreement and has duly authorized authorized, by all necessary corporate action on its part, the execution, delivery and performance of this Agreement and the Sale Agreement, ; and has duly executed this Agreement and delivered this Agreement.
(iv) This the Sale Agreement, assuming the due authorization, execution and delivery hereof by each of the other parties hereto, constitutes a validlegal, legal valid and binding obligation of the Depositor, enforceable against the Depositor in accordance with the terms hereofits terms, subject subject, as to enforceability, to (Ai) applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally, generally and (Bii) general principles of equity, regardless of whether such enforcement is considered sought in a proceeding in equity or at law.
(viii) The Depositor is not in violation of, and its execution and delivery of this Agreement and its performance the Sale Agreement by the Depositor, the consummation of the transactions contemplated by this Agreement and the Sale Agreement, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Depositor and will not (A) result in a material breach of any term or provision of the charter or by-laws of the Depositor or (B) materially conflict with, result in a violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Depositor is a party or by which it may be bound or (C) constitute a material violation of any statute, order or regulation applicable to the Depositor of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Depositor; and the Depositor is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Depositor's ability to perform or meet any of its obligations under this Agreement.
(iv) No litigation is pending, or, to the best of the Depositor's knowledge, threatened, against the Depositor that would materially and adversely affect the execution, delivery or enforceability of this Agreement will not constitute a violation of, any law, any order and the Sale Agreement or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Depositor's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Depositor to perform its obligations under this Agreement or and the financial condition of Sale Agreement in accordance with the Depositorterms hereof.
(viv) The transfer No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Depositor of, or compliance by the Depositor with, this Agreement and the Sale Agreement or the consummation of the Trust Mortgage Loans to the Trustee as transactions contemplated herein requires no regulatory hereby, or if any such consent, approval, other than any such approvals as have been obtainedauthorization or order is required, and is not subject to any bulk transfer or similar law in effect in any applicable jurisdiction.
(vii) the Depositor has obtained the same. The Depositor is not transferring the Trust Mortgage Loans hereby represents and warrants to the Trustee with any intent respect to hinder, delay or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left with unreasonably small assets or capital with which to engage in and conduct its business.
(x) The Depositor 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.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xii) No litigation is pending or, to the best of the Depositor's knowledge, threatened against the Depositor that, if determined adversely to the Depositor, would prohibit the Depositor from entering into this Agreement or that, in the Depositor's good faith and reasonable judgment, is likely to materially and adversely affect either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(xiii) Except for any actions that are the express responsibility of another party hereunder or under the each Mortgage Loan Purchase Agreements, and further except for actions that the Depositor is expressly permitted to complete subsequent to as of the Closing Date, the Depositor has taken all actions required under applicable law to effectuate and following the transfer of the Trust Mortgage Loans by the Depositor to the Trustee.
(xiv) Immediately prior to the transfer of the UBS Trust Mortgage Loans to it by the Trust pursuant to this Agreement (and assuming that the UBS Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Trust Mortgage LoanSeller, free and clear of all liens, claims, encumbrances and other interests), (A) the Depositor had good title to the Mortgage Loans and marketable title tothe Mortgage Notes were subject to no offsets, and was the sole owner and holder ofclaims, each UBS Trust Mortgage Loan; and (B) the Depositor has full right and authority to sellliens, assign and transfer the UBS Trust Mortgage Loansmortgage, exclusive of the servicing rights pertaining theretopledge, charge, security interest, defenses or counterclaims.
(b) The Depositor hereby makes to the Trustee, for the Trustee's own benefit representations and the benefit warranties of the Certificateholders, each Transferor with respect to each Xxxxxx Trust the related Mortgage Loan onlyLoans in the applicable Transfer Agreement, which have been assigned to the representations and warranties shown on Schedule II heretoTrustee hereunder, were made as of the Closing Date or such other date specified in the particular applicable Transfer Agreement (or underlying agreement, if such Transfer Agreement is in the form of an assignment of a prior agreement). To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of both (i) a representation or warranty of the applicable Transferor under the applicable Transfer Agreement and warranty(ii) a representation or warranty of the Seller under the Sale Agreement, subject the only right or remedy of the Trustee, the NIMs Insurer or of any Certificateholder shall be the Trustee's right to enforce the obligations of the applicable Transferor under any applicable representation or warranty made by it. The Trustee acknowledges that the Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the exceptions set forth on Schedule III hereto Mortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the applicable Transferor in the applicable Transfer Agreement, without regard to whether such Transferor fulfills its contractual obligations in respect of such representation or warranty. The Trustee further acknowledges that the Depositor shall have no obligation or liability with respect to any breach of any representation or warranty with respect to the Mortgage Loans (the headings except as set forth in Schedule II hereto with respect to each representation and warranty being for convenience of reference only and in no way limiting, expanding or otherwise affecting the scope or subject matter thereofSection 2.03(a)(v). Except as expressly provided in Section 2.04(a), the Depositor does not make ) under any representations or warranties regarding the UBS Trust Mortgage Loanscircumstances.
(c) The representations, warranties and covenants of the Depositor set forth in or made pursuant to Section 2.04(a) and Section 2.04(b) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any the Depositor, the NIMs Insurer, or the Trustee of a breach of any of such representationsrepresentations and warranties that adversely and materially affects the value of the related Mortgage Loan, warranties and covenantsprepayment charges or the interests of the Certificateholders, the party discovering such breach shall give prompt written notice thereof to the other parties. Within 90 days of the discovery of a breach of any representation or warranty given to the Trustee by the Depositor, any Transferor, the Seller and assigned to the Trustee, the Depositor, such Transferor or the Seller, as applicable, shall either (a) cure such breach in all material respects, (b) repurchase such Mortgage Loan or any property acquired in respect thereof from the Trustee at the Purchase Price or (c) within the two year period following the Closing Date, substitute a Replacement Mortgage Loan for the affected Mortgage Loan. In the event of discovery of a breach of any representation and warranty of any Transferor or the Depositor, the Trustee shall enforce its rights under the applicable Transfer Agreement and the Sale Agreement for the benefit of Certificateholders and the NIMs Insurer. If a breach of the representations and warranties set forth in the Transfer Agreement hereof exists solely due to the unenforceability of a prepayment charge, the Trustee shall notify the NIMs Insurer thereof and not seek to enforce the repurchase remedy provided for herein unless directed in writing to do so by the NIMs Insurer. In the event of a breach of the representations and warranties with respect to the Mortgage Loans set forth in a Transfer Agreement, the Trustee shall at the request of the NIMs Insurer enforce the right of the Trust Fund and the NIMs Insurer to be indemnified for such breach of representation and warranty. In the event that such breach relates solely to the unenforceability of a prepayment charge, amounts received in respect of such indemnity up to the amount of such prepayment charge shall be distributed pursuant to Section 4.04(b)(i)(B). As provided in the Sale Agreement, if the Transferor substitutes for a Mortgage Loan for which there is a breach of any representations and warranties in the related Transfer Agreement which adversely and materially affects the value of such Mortgage Loan and such substitute mortgage loan is not a Replacement Mortgage Loan, under the terms of the Sale Agreement, the Seller will, in exchange for such substitute Mortgage Loan, (i) provide the applicable Purchase Price for the affected Mortgage Loan or (ii) within two years of the Closing Date, substitute such affected Mortgage Loan with a Replacement Mortgage Loan. Any such substitution shall not be effected prior to the additional delivery to the Trustee of a Request for Release substantially in the form of Exhibit I and shall not be effected unless it is within two years of the Startup Date. As provided in the Sale Agreement, the Seller indemnifies and holds the Trust Fund, the Trustee, the Depositor, the NIMs Insurer, the Servicer and each Certificateholder harmless against any and all taxes, claims, losses, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, fees and expenses that the Trust Fund, the Trustee, the Depositor, the NIMs Insurer, the Servicer and any Certificateholder may sustain in connection with any actions of the Seller relating to a repurchase of a Mortgage Loan other than in compliance with the terms of this Section 2.03 and the Sale Agreement, to the extent that any such action causes (i) any federal or state tax to be imposed on the Trust Fund or any REMIC provided for herein, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup date" under Section 860(d)(1) of the Code, or (ii) any REMIC created hereunder to fail to qualify as a REMIC at any time that any Certificate is outstanding. With respect to any Mortgage Loan repurchased by the Depositor pursuant to this Agreement, by the Seller pursuant to the Sale Agreement or by any Transferor pursuant to the applicable Transfer Agreement, the principal portion of the funds received by the Trustee in respect of such repurchase of a Mortgage Loan will be considered a Principal Prepayment and shall be deposited in the Certificate Account pursuant to Section 3.05. The Trustee, upon receipt of the full amount of the Purchase Price for a Deleted Mortgage Loan, or upon receipt of the Mortgage File for a Replacement Mortgage Loan substituted for a Deleted Mortgage Loan, shall release or cause to be released and reassign to the Depositor, the Seller or the applicable Transferor, as applicable, the related Mortgage File for the Deleted Mortgage Loan and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation or warranty, as shall be necessary to vest in such party or its designee or assignee title to any Deleted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Trustee, and the Trustee shall not have any further responsibility with respect to the Mortgage File relating to such Deleted Mortgage Loan. With respect to each Replacement Mortgage Loan to be delivered to the Trustee pursuant to the terms of this Article II in exchange for a Deleted Mortgage Loan: (i) the Depositor, the applicable Transferor or the Seller, as applicable, must deliver to the Trustee the Mortgage File for the Replacement Mortgage Loan containing the documents set forth in Section 2.01 along with a written certification certifying as to the delivery of such Mortgage File and containing the granting language set forth in Section 2.01; and (ii) the Depositor will be deemed to have made, with respect to such Replacement Mortgage Loan, each of the representations and warranties made by it with respect to the related Deleted Mortgage Loan. The Trustee shall review the Mortgage File with respect to each Replacement Mortgage Loan and certify to the NIMs Insurer and the Depositor that all documents required by Section 2.01 have been executed and received. For any month in which the Seller substitutes one or more Replacement Mortgage Loans for one or more Deleted Mortgage Loans, the Seller will determine the amount (if any) by which the aggregate principal balance of all such Replacement Mortgage Loans as of the date of substitution and the aggregate prepayment penalties with respect to such Replacement Mortgage Loans is less than the aggregate Stated Principal Balance (after application of the principal portion of the Scheduled Payment due in the month of substitution) and aggregate prepayment penalties of all such Deleted Mortgage Loans. An amount equal to the aggregate of the deficiencies described in the preceding sentence (such amount, the "Substitution Adjustment Amount") shall be deposited into the Certificate Account by the Seller on the Determination Date for the Distribution Date relating to the Prepayment Period during which the related Mortgage Loan became required to be purchased or replaced hereunder. Notwithstanding any other provision of this Agreement, the right to substitute Mortgage Loans pursuant to this Article II shall be subject to the additional limitations that no substitution of a Replacement Mortgage Loan for a Deleted Mortgage Loan shall be made unless the Trustee and the NIMs Insurer have received an Opinion of Counsel (at the expense of the party seeking to make the substitution) that, under current law, such substitution will not (A) affect adversely the status of any REMIC established hereunder as a REMIC, or of the related "regular interests" as "regular interests" in any such REMIC, or (B) cause any such REMIC to engage in a "prohibited transaction" or prohibited contribution pursuant to the REMIC Provisions. The Trustee shall cause the Mortgage Loan Schedule to be amended in accordance with the terms of this Agreement. The Seller shall give or cause to be given written notice to the Certificateholders and the NIMs Insurer that such substitution has taken place, shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Replacement Mortgage Loan or Replacement Mortgage Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the NIMs Insurer and the Trustee. Upon such substitution by the Seller, such Replacement Mortgage Loan or Replacement Mortgage Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and the Sale Agreement, including all applicable representations and warranties thereof included in the Sale Agreement as of the date of substitution. In addition, the Seller shall obtain at its own expense and deliver to the Trustee and the NIMs Insurer an Opinion of Counsel to the effect that such substitution will not (a) cause any federal tax to be imposed on the Trust Fund or any REMIC provided for herein, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup date" under Section 860G(d)(1) of the Code or (b) adversely affect the status of any REMIC provided for herein as a REMIC. If any such Opinion of Counsel can not be delivered, then such substitution may only be effected at such time as the required Opinion of Counsel can be given.
(d) It is understood and agreed that the representations, warranties and indemnification (i) set forth in Section 2.03, (ii) of the Seller and the Depositor set forth in the Sale Agreement and assigned to the Trustee by the Depositor hereunder and (iii) of each Transferor, assigned by the Seller to the Depositor pursuant to the Sale Agreement and assigned to the Trustee by the Depositor hereunder shall each survive delivery of the Mortgage Files and the Assignment of Mortgage of each Mortgage Loan to the Trustee and shall continue throughout the term of this Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Inc)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, warrants and covenants to the Trustee, for its own benefit and the benefit of the Certificateholders, and to the Master Servicer and the Special Servicer, as of the Closing Date, that:
(i) The Depositor is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full power and authority to enter into and consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and delivery by each of the other parties hereto, constitutes a valid, legal and binding obligation of the Depositor, enforceable against the Depositor in accordance with the terms hereof, subject to (A) applicable bankruptcy, insolvency, reorganization, moratorium and other laws affecting the enforcement of creditors' rights generally, and (B) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law.
(v) The Depositor is not in violation of, and its execution and delivery of this Agreement and its performance and compliance with the terms of this Agreement will not constitute a violation of, any law, any order or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Depositor's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(vi) The transfer of the Trust Mortgage Loans to the Trustee as contemplated herein requires no regulatory approval, other than any such approvals as have been obtained, and is not subject to any bulk transfer or similar law in effect in any applicable jurisdiction.
(vii) The Depositor is not transferring the Trust Mortgage Loans to the Trustee with any intent to hinder, delay or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left with unreasonably small assets or capital with which to engage in and conduct its business.
(x) The Depositor 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.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xii) No litigation is pending or, to the best of the Depositor's knowledge, threatened against the Depositor that, if determined adversely to the Depositor, would prohibit the Depositor from entering into this Agreement or that, in the Depositor's good faith and reasonable judgment, is likely to materially and adversely affect either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(xiii) Except for any actions that are the express responsibility of another party hereunder or under the Mortgage Loan Purchase Agreements, and further except for actions that the Depositor is expressly permitted to complete subsequent to the Closing Date, the Depositor has taken all actions required under applicable law to effectuate the transfer of the Trust Mortgage Loans by the Depositor to the Trustee.
(xiv) Immediately prior to the transfer of the UBS Non-Xxxxxx Trust Mortgage Loans to the Trust pursuant to this Agreement (and assuming that the UBS related Unaffiliated Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Non-Xxxxxx Trust Mortgage Loan, free and clear of all liens, claims, encumbrances and other interests), (A) the Depositor had good and marketable title to, and was the sole owner and holder of, each UBS Non-Xxxxxx Trust Mortgage Loan; , and (B) the Depositor has full right and authority to sell, assign and transfer the UBS each Non-Xxxxxx Trust Mortgage LoansLoan, exclusive of the servicing rights pertaining thereto.
(b) The Depositor hereby makes to the Trustee, for the Trustee's own benefit and the benefit of the Certificateholders, with respect to each Xxxxxx Trust Mortgage Loan only, the representations and warranties shown on Schedule II hereto, as of the Closing Date or such other date specified in the particular representation and warranty, subject to the exceptions set forth on Schedule III hereto (the headings set forth in Schedule II hereto with respect to each representation and warranty being for convenience of reference only and in no way limiting, expanding or otherwise affecting the scope or subject matter thereof). Except as expressly provided in Section 2.04(a), the Depositor does not make any representations or warranties regarding the UBS Non-Xxxxxx Trust Mortgage Loans.
(c) The representations, warranties and covenants of the Depositor set forth in or made pursuant to Section 2.04(a) and Section 2.04(b) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any breach of any of such representations, warranties and covenants, the party discovering such breach shall give prompt written notice thereof to the other parties.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (LB-UBS Commercial Mortgage Trust 2007-C7)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, represents and warrants and covenants to the Trustee, for its own benefit and the benefit of the Certificateholders, and to the Master Servicer and the Special ServicerTrustee as follows, as of the Closing Date, thatdate hereof:
(i) The Depositor is duly organized and is validly existing as a corporation duly organized, validly existing and in good standing under the laws of the State of DelawareDelaware and has full power and authority (corporate and other) 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 and the Sale Agreement.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full corporate power and authority to execute, deliver and perform, and to enter into and consummate all the transactions contemplated by by, this Agreement, Agreement and the Sale Agreement and has duly authorized authorized, by all necessary corporate action on its part, the execution, delivery and performance of this Agreement and the Sale Agreement, ; and has duly executed this Agreement and delivered this Agreement.
(iv) This the Sale Agreement, assuming the due authorization, execution and delivery hereof by each of the other parties hereto, constitutes a validlegal, legal valid and binding obligation of the Depositor, enforceable against the Depositor in accordance with the terms hereofits terms, subject subject, as to enforceability, to (Ai) applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally, generally and (Bii) general principles of equity, regardless of whether such enforcement is considered sought in a proceeding in equity or at law.
(viii) The Depositor is not in violation of, and its execution and delivery of this Agreement and its performance the Sale Agreement by the Depositor, the consummation of the transactions contemplated by this Agreement and the Sale Agreement, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Depositor and will not (A) result in a material breach of any term or provision of the charter or by-laws of the Depositor or (B) materially conflict with, result in a violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Depositor is a party or by which it may be bound or (C) constitute a material violation of any statute, order or regulation applicable to the Depositor of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Depositor; and the Depositor is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Depositor's ability to perform or meet any of its obligations under this Agreement.
(iv) No litigation is pending, or, to the best of the Depositor's knowledge, threatened, against the Depositor that would materially and adversely affect the execution, delivery or enforceability of this Agreement will not constitute a violation of, any law, any order and the Sale Agreement or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Depositor's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Depositor to perform its obligations under this Agreement or and the financial condition of Sale Agreement in accordance with the Depositorterms hereof.
(viv) The transfer No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Depositor of, or compliance by the Depositor with, this Agreement and the Sale Agreement or the consummation of the Trust Mortgage Loans to the Trustee as transactions contemplated herein requires no regulatory hereby, or if any such consent, approval, other than any such approvals as have been obtainedauthorization or order is required, and is not subject to any bulk transfer or similar law in effect in any applicable jurisdiction.
(vii) the Depositor has obtained the same. The Depositor is not transferring the Trust Mortgage Loans hereby represents and warrants to the Trustee with any intent respect to hinder, delay or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left with unreasonably small assets or capital with which to engage in and conduct its business.
(x) The Depositor 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.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xii) No litigation is pending or, to the best of the Depositor's knowledge, threatened against the Depositor that, if determined adversely to the Depositor, would prohibit the Depositor from entering into this Agreement or that, in the Depositor's good faith and reasonable judgment, is likely to materially and adversely affect either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(xiii) Except for any actions that are the express responsibility of another party hereunder or under the each Mortgage Loan Purchase Agreements, and further except for actions that the Depositor is expressly permitted to complete subsequent to as of the Closing Date, the Depositor has taken all actions required under applicable law to effectuate and following the transfer of the Trust Mortgage Loans by the Depositor to the Trustee.
(xiv) Immediately prior to the transfer of the UBS Trust Mortgage Loans to it by the Trust pursuant to this Agreement (and assuming that the UBS Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Trust Mortgage LoanSeller, free and clear of all liens, claims, encumbrances and other interests), (A) the Depositor had good title to the Mortgage Loans and marketable title tothe Mortgage Notes were subject to no offsets, and was the sole owner and holder ofclaims, each UBS Trust Mortgage Loan; and (B) the Depositor has full right and authority to sellliens, assign and transfer the UBS Trust Mortgage Loansmortgage, exclusive of the servicing rights pertaining theretopledge, charge, security interest, defenses or counterclaims.
(b) The Depositor hereby makes to the Trustee, for the Trustee's own benefit representations and the benefit warranties of the Certificateholders, Transferor with respect to each Xxxxxx Trust the Mortgage Loan only, Loans contained in the representations and warranties shown on Schedule II hereto, Transfer Agreement were made as of the date of the Transfer Agreement and brought forward to the Closing Date or such other earlier date specified in the particular representation as set forth and warranty, subject pursuant to the exceptions set forth on Schedule III hereto (Bring Down Letter. The representations and warranties of the headings set forth in Schedule II hereto Transferor with respect to each the Mortgage Loans contained in the Bring Down Letter were made as of the Closing Date. The representations and warranties of the Seller with respect to the Mortgage Loans contained in the Sale Agreement were made as of the Closing Date. To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of both (i) a representation or warranty of the Transferor under the Transfer Agreement and (ii) a representation or warranty being for convenience of reference only and in no way limiting, expanding or otherwise affecting the scope or subject matter thereof). Except as expressly provided in Section 2.04(a)Seller under the Sale Agreement, the Depositor does not make only right or remedy of the Trustee or of any representations Certificateholder shall be the Trustee's right to enforce the obligations of the Transferor under any applicable representation or warranties regarding warranty made by it. The Trustee acknowledges that the UBS Trust Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Mortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the Transferor in the Transfer Agreement, without regard to whether the Transferor fulfills its contractual obligations in respect of such representation or warranty. The Trustee also acknowledges that the Seller shall have no obligation or liability with respect to any breach of a representation or warranty made solely by the Transferor with respect to the Mortgage Loans.
(c) , without regard to whether the Transferor fulfills its contractual obligations in respect of such representation or warranty. The representations, warranties and covenants of Trustee further acknowledges that the Depositor set forth in shall have no obligation or made pursuant liability with respect to Section 2.04(a) and Section 2.04(b) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any breach of any of such representations, warranties and covenants, the party discovering such breach shall give prompt written notice thereof representation or warranty with respect to the other partiesMortgage Loans (except as set forth in Section 2.03(a)(v)) under any circumstances.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Trust, Series 2005-Ar1)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, represents and warrants and covenants to the TrusteeServicer, for its own benefit the Master Servicer, the Trustee and the benefit of the Certificateholders, and to the Master Servicer and the Special ServicerNIMs Insurer as follows, as of the Closing Date, thatdate hereof:
(i) The Depositor is duly organized and is validly existing as a corporation duly organized, validly existing and in good standing under the laws of the State of DelawareDelaware and has full power and authority (corporate and other) 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 and the Sale Agreement.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full corporate power and authority to execute, deliver and perform, and to enter into and consummate all the transactions contemplated by by, this Agreement, Agreement and the Sale Agreement and has duly authorized authorized, by all necessary corporate action on its part, the execution, delivery and performance of this Agreement and the Sale Agreement, ; and has duly executed this Agreement and delivered this Agreement.
(iv) This the Sale Agreement, assuming the due authorization, execution and delivery hereof by each of the other parties hereto, constitutes a validlegal, legal valid and binding obligation of the Depositor, enforceable against the Depositor in accordance with the terms hereofits terms, subject subject, as to enforceability, to (Ai) applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally, generally and (Bii) general principles of equity, regardless of whether such enforcement is considered sought in a proceeding in equity or at law.
(viii) The Depositor is not in violation of, and its execution and delivery of this Agreement and its performance the Sale Agreement by the Depositor, the consummation of the transactions contemplated by this Agreement and the Sale Agreement, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Depositor and will not (A) result in a material breach of any term or provision of the charter or by-laws of the Depositor or (B) materially conflict with, result in a violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Depositor is a party or by which it may be bound or (C) constitute a material violation of any statute, order or regulation applicable to the Depositor of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Depositor; and the Depositor is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Depositor's ability to perform or meet any of its obligations under this Agreement.
(iv) No litigation is pending, or, to the best of the Depositor's knowledge, threatened, against the Depositor that would materially and adversely affect the execution, delivery or enforceability of this Agreement will not constitute a violation of, any law, any order and the Sale Agreement or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Depositor's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Depositor to perform its obligations under this Agreement or and the financial condition of Sale Agreement in accordance with the Depositorterms hereof.
(viv) The transfer No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Depositor of, or compliance by the Depositor with, this Agreement and the Sale Agreement or the consummation of the Trust Mortgage Loans to the Trustee as transactions contemplated herein requires no regulatory hereby, or if any such consent, approval, other than any such approvals as have been obtainedauthorization or order is required, and is not subject to any bulk transfer or similar law in effect in any applicable jurisdiction.
(vii) the Depositor has obtained the same. The Depositor is not transferring the Trust Mortgage Loans hereby represents and warrants to the Trustee with any intent respect to hinder, delay or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left with unreasonably small assets or capital with which to engage in and conduct its business.
(x) The Depositor 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.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xii) No litigation is pending or, to the best of the Depositor's knowledge, threatened against the Depositor that, if determined adversely to the Depositor, would prohibit the Depositor from entering into this Agreement or that, in the Depositor's good faith and reasonable judgment, is likely to materially and adversely affect either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(xiii) Except for any actions that are the express responsibility of another party hereunder or under the each Mortgage Loan Purchase Agreements, and further except for actions that the Depositor is expressly permitted to complete subsequent to as of the Closing Date, the Depositor has taken all actions required under applicable law to effectuate and following the transfer of the Trust Mortgage Loans by the Depositor to the Trustee.
(xiv) Immediately prior to the transfer of the UBS Trust Mortgage Loans to it by the Trust pursuant to this Agreement (and assuming that the UBS Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Trust Mortgage LoanSeller, free and clear of all liens, claims, encumbrances and other interests), (A) the Depositor had good title to the Mortgage Loans and marketable title tothe Mortgage Notes were subject to no offsets, and was the sole owner and holder ofclaims, each UBS Trust Mortgage Loan; and (B) the Depositor has full right and authority to sellliens, assign and transfer the UBS Trust Mortgage Loansmortgage, exclusive of the servicing rights pertaining theretopledge, charge, security interest, defenses or counterclaims.
(b) The Depositor hereby makes to the Trustee, for the Trustee's own benefit representations and the benefit warranties of the Certificateholders, each Transferor with respect to each Xxxxxx Trust the related Mortgage Loan onlyLoans in the applicable Transfer Agreement, which have been assigned to the representations and warranties shown on Schedule II heretoTrustee hereunder, were made as of the Closing Date or such other date specified in the particular applicable Transfer Agreement (or underlying agreement, if such Transfer Agreement is in the form of an assignment of a prior agreement). To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of both (i) a representation or warranty of the applicable Transferor under the applicable Transfer Agreement and warranty(ii) a representation or warranty of the Seller under the Sale Agreement, subject the Trustee shall enforce the obligations of the Seller under the Sale Agreement and to the exceptions set forth on Schedule III hereto extent the Seller does not fulfill its contracted obligations then the Trustee shall enforce the obligations of the applicable Transferor under any applicable representation or warranty made by it. The Trustee further acknowledges that the Depositor shall have no obligation or liability with respect to any breach of any representation or warranty with respect to the Mortgage Loans (the headings except as set forth in Schedule II hereto with respect to each representation and warranty being for convenience of reference only and in no way limiting, expanding or otherwise affecting the scope or subject matter thereofSection 2.03(a)(v). Except as expressly provided in Section 2.04(a), the Depositor does not make ) under any representations or warranties regarding the UBS Trust Mortgage Loanscircumstances.
(c) The representations, warranties and covenants of the Depositor set forth in or made pursuant to Section 2.04(a) and Section 2.04(b) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any the Depositor, the Master Servicer, the Servicer, the NIMs Insurer, or the Trustee of a breach of any of such representationsrepresentations and warranties that adversely and materially affects the value of the related Mortgage Loan, warranties and covenantsprepayment charges or the interests of the Certificateholders, the party discovering such breach shall give prompt written notice thereof to the other parties. Within 90 days of the discovery of a breach of any representation or warranty given to the Trustee by the Depositor, any Transferor, the Seller and assigned to the Trustee, the Depositor, such Transferor or the Seller, as applicable, shall either (a) cure such breach in all material respects, (b) repurchase such Mortgage Loan or any property acquired in respect thereof from the Trustee at the Purchase Price or (c) within the two year period following the Closing Date, substitute a Replacement Mortgage Loan for the affected Mortgage Loan. In the event of discovery of a breach of any representation and warranty of any Transferor or the Depositor, the Trustee shall enforce its rights under the applicable Transfer Agreement and the Sale Agreement for the benefit of Certificateholders and the NIMs Insurer. If a breach of the representations and warranties set forth in the Transfer Agreement hereof exists solely due to the unenforceability of a prepayment charge, the Trustee shall notify the NIMs Insurer and the Servicer thereof and not seek to enforce the repurchase remedy provided for herein unless directed in writing to do so by the NIMs Insurer or the Servicer. In the event of a breach of the representations and warranties with respect to the Mortgage Loans set forth in a Transfer Agreement, the Trustee shall at the request of the NIMs Insurer enforce the right of the Trust Fund and the NIMs Insurer to be indemnified for such breach of representation and warranty. In the event that such breach relates solely to the unenforceability of a prepayment charge, amounts received in respect of such indemnity up to the amount of such prepayment charge shall be distributed pursuant to Section 4.04(g). As provided in the Sale Agreement, if the Transferor substitutes for a Mortgage Loan for which there is a breach of any representations and warranties in the related Transfer Agreement which adversely and materially affects the value of such Mortgage Loan and such substitute mortgage loan is not a Replacement Mortgage Loan, under the terms of the Sale Agreement, the Seller will, in exchange for such substitute Mortgage Loan, (i) provide the applicable Purchase Price for the affected Mortgage Loan or (ii) within two years of the Closing Date, substitute such affected Mortgage Loan with a Replacement Mortgage Loan. Any such substitution shall not be effected prior to the additional delivery to the Trustee of a Request for Release substantially in the form of Exhibit I and shall not be effected unless it is within two years of the Startup Date. The Seller indemnifies and holds the Trust Fund, the Trustee, the Depositor, the Servicer, the NIMs Insurer and each Certificateholder harmless against any and all taxes, claims, losses, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, fees and expenses that the Trust Fund, the Trustee, the Depositor, the Servicer, the NIMs Insurer and any Certificateholder may sustain in connection with any actions of the Seller relating to a repurchase of a Mortgage Loan other than in compliance with the terms of this Section 2.03 and the Sale Agreement, to the extent that any such action causes (i) any federal or state tax to be imposed on the Trust Fund or any REMIC provided for herein, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup date" under Section 860(d)(1) of the Code, or (ii) any REMIC created hereunder to fail to qualify as a REMIC at any time that any Certificate is outstanding. In furtherance of the foregoing, if the Transferor or the Seller, as applicable, is not a member of MERS and repurchases a Mortgage Loan which is registered on the MERS System, the Transferor or the Seller, as applicable, at its own expense and without any right of reimbursement, shall cause MERS to execute and deliver an assignment of the Mortgage in recordable form to transfer the Mortgage from MERS to the Transferor or the Seller, as applicable, and shall cause such Mortgage to be removed from registration on the MERS System in accordance with MERS' rules and regulations. With respect to any Mortgage Loan repurchased by the Depositor pursuant to this Agreement, by the Seller pursuant to the Sale Agreement or by any Transferor pursuant to the applicable Transfer Agreement, the principal portion of the funds received by the Master Servicer or Servicer, as applicable, in respect of such repurchase of a Mortgage Loan will be considered a Principal Prepayment and shall be deposited by the Master Servicer or Servicer, as applicable, in the Collection Account pursuant to Section 3.05. The Trustee, upon receipt of the full amount of the Purchase Price for a Deleted Mortgage Loan, or upon receipt of the Mortgage File for a Replacement Mortgage Loan substituted for a Deleted Mortgage Loan, shall release or cause to be released and reassign to the Depositor, the Seller or the applicable Transferor, as applicable, the related Mortgage File for the Deleted Mortgage Loan and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation or warranty, as shall be necessary to vest in such party or its designee or assignee title to any Deleted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Trustee, and the Trustee shall not have any further responsibility with respect to the Mortgage File relating to such Deleted Mortgage Loan. With respect to each Replacement Mortgage Loan to be delivered to the Trustee pursuant to the terms of this Article II in exchange for a Deleted Mortgage Loan: (i) the Depositor, the applicable Transferor or the Seller, as applicable, must deliver to the Trustee the Mortgage File for the Replacement Mortgage Loan containing the documents set forth in Section 2.01 along with a written certification certifying as to the delivery of such Mortgage File and containing the granting language set forth in Section 2.01; and (ii) the Depositor will be deemed to have made, with respect to such Replacement Mortgage Loan, each of the representations and warranties made by it with respect to the related Deleted Mortgage Loan. The Trustee shall review the Mortgage File with respect to each Replacement Mortgage Loan and certify to the NIMs Insurer and the Depositor that all documents required by Section 2.01 have been executed and received. For any month in which the Seller substitutes one or more Replacement Mortgage Loans for one or more Deleted Mortgage Loans, the Seller will determine the amount (if any) by which the aggregate principal balance of all such Replacement Mortgage Loans as of the date of substitution and the aggregate prepayment penalties with respect to such Replacement Mortgage Loans is less than the aggregate Stated Principal Balance (after application of the principal portion of the Scheduled Payment due in the month of substitution) and aggregate prepayment penalties of all such Deleted Mortgage Loans. An amount equal to the aggregate of the deficiencies described in the preceding sentence (such amount, the "Substitution Adjustment Amount") shall be delivered by the Seller to the Master Servicer or Servicer, as applicable, for deposit into the Collection Account on the Determination Date for the Distribution Date relating to the Prepayment Period during which the related Mortgage Loan became required to be purchased or replaced hereunder. Notwithstanding any other provision of this Agreement, the right to substitute Mortgage Loans pursuant to this Article II shall be subject to the additional limitations that no substitution of a Replacement Mortgage Loan for a Deleted Mortgage Loan shall be made unless the Trustee and the NIMs Insurer have received an Opinion of Counsel (at the expense of the party seeking to make the substitution) that, under current law, such substitution will not (A) affect adversely the status of any REMIC established hereunder as a REMIC, or of the related "regular interests" as "regular interests" in any such REMIC, or (B) cause any such REMIC to engage in a "prohibited transaction" or prohibited contribution pursuant to the REMIC Provisions. The Seller shall give or cause to be given written notice to the Certificateholders and the NIMs Insurer that such substitution has taken place, shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Replacement Mortgage Loan or Replacement Mortgage Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the NIMs Insurer and the Trustee. Upon such substitution by the Seller, such Replacement Mortgage Loan or Replacement Mortgage Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and the Sale Agreement, including all applicable representations and warranties thereof included in the Sale Agreement as of the date of substitution.
(d) It is understood and agreed that the representations, warranties and indemnification (i) set forth in Section 2.03, (ii) of the Seller and the Depositor set forth in the Sale Agreement and assigned to the Trustee by the Depositor hereunder and (iii) of each Transferor, assigned by the Seller to the Depositor pursuant to the Sale Agreement and assigned to the Trustee by the Depositor hereunder shall each survive delivery of the Mortgage Files and the Assignment of Mortgage of each Mortgage Loan to the Trustee and shall continue throughout the term of this Agreement.
(e) The Depositor shall deliver a copy of the Mortgage Loan Schedule to the Servicer on the Closing Date.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Merrill Lynch Mort Inv Inc Terwin Series TMTS 2003-2he)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, represents and warrants and covenants to the Trustee, for its own benefit Servicers and the benefit of the Certificateholders, and to the Master Servicer and the Special ServicerTrustee as follows, as of the Closing Date, thatdate hereof:
(i) The Depositor is duly organized and is validly existing as a corporation duly organized, validly existing and in good standing under the laws of the State of DelawareDelaware and has full power and authority (corporate and other) 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 and the Sale Agreement.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full corporate power and authority to execute, deliver and perform, and to enter into and consummate all the transactions contemplated by by, this Agreement, Agreement and the Sale Agreement and has duly authorized authorized, by all necessary corporate action on its part, the execution, delivery and performance of this Agreement and the Sale Agreement, ; and has duly executed this Agreement and delivered this Agreement.
(iv) This the Sale Agreement, assuming the due authorization, execution and delivery hereof by each of the other parties hereto, constitutes a validlegal, legal valid and binding obligation of the Depositor, enforceable against the Depositor in accordance with the terms hereofits terms, subject subject, as to enforceability, to (Ai) applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally, generally and (Bii) general principles of equity, regardless of whether such enforcement is considered sought in a proceeding in equity or at law.
(viii) The Depositor is not in violation of, and its execution and delivery of this Agreement and its performance the Sale Agreement by the Depositor, the consummation of the transactions contemplated by this Agreement and the Sale Agreement, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Depositor and will not (A) result in a material breach of any term or provision of the charter or by-laws of the Depositor or (B) materially conflict with, result in a violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Depositor is a party or by which it may be bound or (C) constitute a material violation of any statute, order or regulation applicable to the Depositor of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Depositor; and the Depositor is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Depositor's ability to perform or meet any of its obligations under this Agreement.
(iv) No litigation is pending, or, to the best of the Depositor's knowledge, threatened, against the Depositor that would materially and adversely affect the execution, delivery or enforceability of this Agreement will not constitute a violation of, any law, any order and the Sale Agreement or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Depositor's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Depositor to perform its obligations under this Agreement or and the financial condition of Sale Agreement in accordance with the Depositorterms hereof.
(viv) The transfer No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Depositor of, or compliance by the Depositor with, this Agreement and the Sale Agreement or the consummation of the Trust Mortgage Loans to the Trustee as transactions contemplated herein requires no regulatory hereby, or if any such consent, approval, other than any such approvals as have been obtainedauthorization or order is required, and is not subject to any bulk transfer or similar law in effect in any applicable jurisdiction.
(vii) the Depositor has obtained the same. The Depositor is not transferring the Trust Mortgage Loans hereby represents and warrants to the Trustee with any intent respect to hinder, delay or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left with unreasonably small assets or capital with which to engage in and conduct its business.
(x) The Depositor 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.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xii) No litigation is pending or, to the best of the Depositor's knowledge, threatened against the Depositor that, if determined adversely to the Depositor, would prohibit the Depositor from entering into this Agreement or that, in the Depositor's good faith and reasonable judgment, is likely to materially and adversely affect either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(xiii) Except for any actions that are the express responsibility of another party hereunder or under the each Mortgage Loan Purchase Agreements, and further except for actions that the Depositor is expressly permitted to complete subsequent to as of the Closing Date, the Depositor has taken all actions required under applicable law to effectuate and following the transfer of the Trust Mortgage Loans by the Depositor to the Trustee.
(xiv) Immediately prior to the transfer of the UBS Trust Mortgage Loans to it by the Trust pursuant to this Agreement (and assuming that the UBS Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Trust Mortgage LoanSeller, free and clear of all liens, claims, encumbrances and other interests), (A) the Depositor had good title to the Mortgage Loans and marketable title tothe Mortgage Notes were subject to no offsets, and was the sole owner and holder ofclaims, each UBS Trust Mortgage Loan; and (B) the Depositor has full right and authority to sellliens, assign and transfer the UBS Trust Mortgage Loansmortgage, exclusive of the servicing rights pertaining theretopledge, charge, security interest, defenses or counterclaims.
(b) The Depositor hereby makes to the Trustee, for the Trustee's own benefit representations and the benefit warranties of the Certificateholders, each Transferor with respect to each Xxxxxx Trust the related Mortgage Loan onlyLoans in the applicable Transfer Agreement, which have been assigned to the representations and warranties shown on Schedule II heretoTrustee hereunder, were made as of the Closing Date or such other date specified in the particular representation and warrantyapplicable Transfer Agreement (or underlying agreement, subject to if such Transfer Agreement is in the exceptions set forth on Schedule III hereto (form of an assignment of a prior agreement). To the headings set forth in Schedule II hereto extent that any fact, condition or event with respect to each a Mortgage Loan constitutes a breach of both (i) a representation or warranty of the applicable Transferor under the applicable Transfer Agreement and (ii) a representation or warranty being for convenience of reference only and in no way limiting, expanding or otherwise affecting the scope or subject matter thereof). Except as expressly provided in Section 2.04(a)Seller under the Sale Agreement, the Depositor Trustee shall enforce the obligations of the Seller under the Sale Agreement and to the extent the Seller does not make fulfill its contracted obligations then the Trustee shall enforce the obligations of the applicable Transferor under any representations applicable representation or warranties regarding warranty made by it. The Trustee further acknowledges that the UBS Trust Depositor shall have no obligation or liability with respect to any breach of any representation or warranty with respect to the Mortgage LoansLoans under any circumstances.
(c) The representations, warranties and covenants of the Depositor set forth in or made pursuant to Section 2.04(a) and Section 2.04(b) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any the Depositor, the Servicers or the Trustee of a breach of any of such representationsrepresentations and warranties that adversely and materially affects the value of the related Mortgage Loan, warranties and covenantsprepayment charges or the interests of the Certificateholders, the party discovering such breach shall give prompt written notice thereof to the other parties. Within 90 days of the discovery of a breach of any representation or warranty, the applicable Transferor or the Seller, as applicable, shall either (a) cure such breach in all material respects, (b) repurchase such Mortgage Loan or any property acquired in respect thereof from the Trustee at the Purchase Price or (c) within the two year period following the Closing Date, substitute a Replacement Mortgage Loan for the affected Mortgage Loan. In the event of discovery of a breach of any representation and warranty of any Transferor or the Seller, the Trustee's rights shall be enforced under the applicable Transfer Agreement and the Sale Agreement for the benefit of Certificateholders. If a breach of the representations and warranties set forth in the Transfer Agreement hereof exists solely due to the unenforceability of a prepayment charge, the Trustee shall notify the Servicer thereof and not seek to enforce the repurchase remedy provided for herein unless directed in writing to do so by the Servicer. In the event of a breach of the representations and warranties with respect to the Mortgage Loans set forth in a Transfer Agreement, the Trustee shall enforce the right of the Trust Fund to be indemnified for such breach of representation and warranty. In the event that such breach relates solely to the unenforceability of a prepayment charge, amounts received in respect of such indemnity up to the amount of such prepayment charge shall be distributed pursuant to Section 4.04(b)(i). As provided in the Sale Agreement, if the Transferor substitutes for a Mortgage Loan for which there is a breach of any representations and warranties in the related Transfer Agreement which adversely and materially affects the value of such Mortgage Loan and such substitute mortgage loan is not a Replacement Mortgage Loan, under the terms of the Sale Agreement, the Seller will, in exchange for such substitute Mortgage Loan, (i) provide the applicable Purchase Price for the affected Mortgage Loan or (ii) within two years of the Closing Date, substitute such affected Mortgage Loan with a Replacement Mortgage Loan. Any such substitution shall not be effected prior to the additional delivery to the Trustee of a Request for Release substantially in the form of Exhibit I and shall not be effected unless it is within two years of the Startup Date. The Seller indemnifies and holds the Trust Fund, the Trustee, the Depositor, the Servicers and each Certificateholder harmless against any and all taxes, claims, losses, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, fees and expenses that the Trust Fund, the Trustee, the Depositor, the Servicers and any Certificateholder may sustain in connection with any actions of the Seller relating to a repurchase of a Mortgage Loan other than in compliance with the terms of this Section 2.03 and the Sale Agreement, to the extent that any such action causes (i) any federal or state tax to be imposed on the Trust Fund or any REMIC provided for herein, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup date" under Section 860(d)(1) of the Code, or (ii) any REMIC created hereunder to fail to qualify as a REMIC at any time that any Certificate is outstanding. In furtherance of the foregoing, if the Transferor or the Seller, as applicable, is not a member of MERS and repurchases a Mortgage Loan which is registered on the MERS System, the Transferor or the Seller, as applicable, at its own expense and without any right of reimbursement, shall cause MERS to execute and deliver an assignment of the Mortgage in recordable form to transfer the Mortgage from MERS to the Transferor or the Seller, as applicable, and shall cause such Mortgage to be removed from registration on the MERS System in accordance with MERS' rules and regulations. With respect to any Mortgage Loan repurchased by the Seller pursuant to the Sale Agreement or by any Transferor pursuant to the applicable Transfer Agreement, the principal portion of the funds received by the Trustee in respect of such repurchase of a Mortgage Loan will be considered a Principal Prepayment and shall be deposited in the Certificate Account pursuant to Section 3.05. The Trustee, upon receipt of the full amount of the Purchase Price for a Deleted Mortgage Loan, or upon receipt by the Custodian of the Mortgage File for a Replacement Mortgage Loan substituted for a Deleted Mortgage Loan, shall release or cause to be released and reassign to the Seller or the applicable Transferor, as applicable, the related Mortgage File for the Deleted Mortgage Loan and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation or warranty, as shall be provided to the Trustee and necessary to vest in such party or its designee or assignee title to any Deleted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the related Servicer, and the Trustee shall have no further responsibility with respect to the Mortgage File relating to such Deleted Mortgage Loan. With respect to each Replacement Mortgage Loan to be delivered to the Trustee (or its custodian) pursuant to the terms of this Article II in exchange for a Deleted Mortgage Loan: (i) the applicable Transferor or the Seller, as applicable, must deliver to the Trustee (or its custodian) the Mortgage File for the Replacement Mortgage Loan containing the documents set forth in Section 2.01 along with a written certification certifying as to the Mortgage Loan satisfying all requirements under the definition of Replacement Mortgage Loan and the delivery of such Mortgage File and containing the granting language set forth in Section 2.01; and (ii) the Depositor will be deemed to have made, with respect to such Replacement Mortgage Loan, each of the representations and warranties made by it with respect to the related Deleted Mortgage Loan. The Trustee shall cause the Custodian to review the Mortgage File with respect to each Replacement Mortgage Loan and certify to the Depositor that all documents required by Section 2.01 have been executed and received. For any month in which the Seller substitutes one or more Replacement Mortgage Loans for one or more Deleted Mortgage Loans, the Seller will determine the amount (if any) by which the aggregate principal balance of all such Replacement Mortgage Loans as of the date of substitution and the aggregate prepayment penalties with respect to such Replacement Mortgage Loans is less than the aggregate Stated Principal Balance (after application of the principal portion of the Scheduled Payment due in the month of substitution) and aggregate prepayment penalties of all such Deleted Mortgage Loans. An amount equal to the aggregate of the deficiencies described in the preceding sentence (such amount, the "Substitution Adjustment Amount") shall be deposited into the Certificate Account by the Seller on the Determination Date for the Distribution Date relating to the Prepayment Period during which the related Mortgage Loan became required to be purchased or replaced hereunder. Notwithstanding any other provision of this Agreement, the right to substitute Mortgage Loans pursuant to this Article II shall be subject to the additional limitations that no substitution of a Replacement Mortgage Loan for a Deleted Mortgage Loan shall be made unless the Trustee shall have received an Opinion of Counsel (at the expense of the party seeking to make the substitution) that, under current law, such substitution will not (A) affect adversely the status of any REMIC established hereunder as a REMIC, or of the related "regular interests" as "regular interests" in any such REMIC, or (B) cause any such REMIC to engage in a "prohibited transaction" or prohibited contribution pursuant to the REMIC Provisions. The Trustee shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Replacement Mortgage Loan or Replacement Mortgage Loans. Upon such substitution by the Seller, such Replacement Mortgage Loan or Replacement Mortgage Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and the Sale Agreement, including all applicable representations and warranties thereof included in the Sale Agreement as of the date of substitution.
(d) It is understood and agreed that the representations, warranties and indemnification (i) set forth in Section 2.03, (ii) of the Seller and the Depositor set forth in the Sale Agreement and assigned to the Trustee by the Depositor hereunder and (iii) of each Transferor, assigned by the Seller to the Depositor pursuant to the Sale Agreement and assigned to the Trustee by the Depositor hereunder shall each survive delivery of the Mortgage Files and the Assignment of Mortgage of each Mortgage Loan to the Trustee and shall continue throughout the term of this Agreement.
(e) The Depositor shall deliver a copy of the Mortgage Loan Schedule to each Servicer on the Closing Date.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Merrill Lynch Mort Inv Inc Asst Back Certs Ser TMTS 2003 8he)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, represents and warrants and covenants to the Trustee, for its own benefit and the benefit of the Certificateholders, and to the Master Servicer and the Special ServicerTrustee as follows, as of the Closing Date, thatdate hereof:
(i) The Depositor is duly organized and is validly existing as a corporation duly organized, validly existing and in good standing under the laws of the State of DelawareDelaware and has full power and authority (corporate and other) 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 and the Sale Agreement.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full corporate power and authority to execute, deliver and perform, and to enter into and consummate all the transactions contemplated by by, this Agreement, Agreement and the Sale Agreement and has duly authorized authorized, by all necessary corporate action on its part, the execution, delivery and performance of this Agreement and the Sale Agreement, ; and has duly executed this Agreement and delivered this Agreement.
(iv) This the Sale Agreement, assuming the due authorization, execution and delivery hereof by each of the other parties hereto, constitutes a validlegal, legal valid and binding obligation of the Depositor, enforceable against the Depositor in accordance with the terms hereofits terms, subject subject, as to enforceability, to (Ai) applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally, generally and (Bii) general principles of equity, regardless of whether such enforcement is considered sought in a proceeding in equity or at law.
(viii) The Depositor is not in violation of, and its execution and delivery of this Agreement and its performance the Sale Agreement by the Depositor, the consummation of the transactions contemplated by this Agreement and the Sale Agreement, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Depositor and will not (A) result in a material breach of any term or provision of the charter or by-laws of the Depositor or (B) materially conflict with, result in a violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Depositor is a party or by which it may be bound or (C) constitute a material violation of any statute, order or regulation applicable to the Depositor of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Depositor; and the Depositor is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Depositor's ability to perform or meet any of its obligations under this Agreement.
(iv) No litigation is pending, or, to the best of the Depositor's knowledge, threatened, against the Depositor that would materially and adversely affect the execution, delivery or enforceability of this Agreement will not constitute a violation of, any law, any order and the Sale Agreement or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Depositor's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Depositor to perform its obligations under this Agreement or and the financial condition of Sale Agreement in accordance with the Depositorterms hereof.
(viv) The transfer No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Depositor of, or compliance by the Depositor with, this Agreement and the Sale Agreement or the consummation of the Trust Mortgage Loans to the Trustee as transactions contemplated herein requires no regulatory hereby, or if any such consent, approval, other than any such approvals as have been obtainedauthorization or order is required, and is not subject to any bulk transfer or similar law in effect in any applicable jurisdiction.
(vii) the Depositor has obtained the same. The Depositor is not transferring the Trust Mortgage Loans hereby represents and warrants to the Trustee with any intent respect to hinder, delay or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left with unreasonably small assets or capital with which to engage in and conduct its business.
(x) The Depositor 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.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xii) No litigation is pending or, to the best of the Depositor's knowledge, threatened against the Depositor that, if determined adversely to the Depositor, would prohibit the Depositor from entering into this Agreement or that, in the Depositor's good faith and reasonable judgment, is likely to materially and adversely affect either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(xiii) Except for any actions that are the express responsibility of another party hereunder or under the each Mortgage Loan Purchase Agreements, and further except for actions that the Depositor is expressly permitted to complete subsequent to as of the Closing Date, the Depositor has taken all actions required under applicable law to effectuate and following the transfer of the Trust Mortgage Loans by the Depositor to the Trustee.
(xiv) Immediately prior to the transfer of the UBS Trust Mortgage Loans to it by the Trust pursuant to this Agreement (and assuming that the UBS Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Trust Mortgage Loanrelated Seller, free and clear of all liens, claims, encumbrances and other interests), (A) the Depositor had good title to the Mortgage Loans and marketable title tothe Mortgage Notes were subject to no offsets, and was the sole owner and holder ofclaims, each UBS Trust Mortgage Loan; and (B) the Depositor has full right and authority to sellliens, assign and transfer the UBS Trust Mortgage Loansmortgage, exclusive of the servicing rights pertaining theretopledge, charge, security interest, defenses or counterclaims.
(b) The Depositor hereby makes to the Trustee, for the Trustee's own benefit representations and the benefit warranties of the Certificateholders, each Transferor with respect to each Xxxxxx Trust the related Mortgage Loan onlyLoans in the applicable Transfer Agreement, which have been assigned to the Trustee hereunder, were made as of the date specified in the applicable Transfer Agreement and brought forward to the Closing Date pursuant to the related Bring Down Letter. The representations and warranties shown on Schedule II hereto, of each Transferor with respect to the Mortgage Loans contained in the Bring Down Letter were made as of the Closing Date or such other date specified Date. The representations and warranties of the Seller with respect to the Mortgage Loans contained in the particular Sale Agreement were made as of the Closing Date. To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of both (i) a representation or warranty of the applicable Transferor under the applicable Transfer Agreement or Bring Down Letter and warranty(ii) a representation or warranty of the Seller under the Sale Agreement, subject to the exceptions set forth on Schedule III hereto (obligations of the headings Seller under the Sale Agreement shall be enforced against the Transferor or the Seller, as applicable, as set forth in Schedule II hereto such Sale Agreement. The Trustee acknowledges that the Seller shall have no obligation or liability with respect to each any breach of a representation and or warranty being for convenience of reference only and in no way limiting, expanding or otherwise affecting the scope or subject matter thereof). Except as expressly provided in Section 2.04(a), the Depositor does not make made by it with respect to any representations or warranties regarding the UBS Trust related Mortgage Loans.
(c) The representations, warranties and covenants of the Depositor except as otherwise set forth in the Sale Agreement, if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made pursuant by the related Transferor in the related Transfer Agreement or Bring Down Letter, without regard to Section 2.04(a) and Section 2.04(b) whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty. The Trustee also acknowledges that the Seller shall survive have no obligation or liability with respect to any breach of a representation or warranty made solely by the execution and delivery of this Agreement and shall inure Transferors with respect to the benefit Mortgage Loans, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty. The Trustee further acknowledges that the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of Depositor shall have no obligation or liability with respect to any breach of any of such representations, warranties and covenants, the party discovering such breach shall give prompt written notice thereof representation or warranty with respect to the other partiesMortgage Loans (except as set forth in Section 2.03(a)(v)) under any circumstances.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Trust Series 2005-He3)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, warrants and covenants to the Trustee, for its own benefit and the benefit of the Certificateholders, and to the Master Servicer and the Special Servicer, as of the Closing Date, that:
(i) The Depositor is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full power and authority to enter into and consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and delivery by each of the other parties hereto, constitutes a valid, legal and binding obligation of the Depositor, enforceable against the Depositor in accordance with the terms hereof, subject to (A) applicable bankruptcy, insolvency, reorganization, moratorium and other laws affecting the enforcement of creditors' rights generally, and (B) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law.
(v) The Depositor is not in violation of, and its execution and delivery of this Agreement and its performance and compliance with the terms of this Agreement will not constitute a violation of, any law, any order or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Depositor's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(vi) The transfer of the Trust Mortgage Loans to the Trustee as contemplated herein requires no regulatory approval, other than any such approvals as have been obtained, and is not subject to any bulk transfer or similar law in effect in any applicable jurisdiction.
(vii) The Depositor is not transferring the Trust Mortgage Loans to the Trustee with any intent to hinder, delay or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left with unreasonably small assets or capital with which to engage in and conduct its business.
(x) The Depositor 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.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xii) No litigation is pending or, to the best of the Depositor's knowledge, threatened against the Depositor that, if determined adversely to the Depositor, would prohibit the Depositor from entering into this Agreement or that, in the Depositor's good faith and reasonable judgment, is likely to materially and adversely affect either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(xiii) Except for any actions that are the express responsibility of another party hereunder or under the Mortgage Loan Purchase Agreements, and further except for actions that the Depositor is expressly permitted to complete subsequent to the Closing Date, the Depositor has taken all actions required under applicable law to effectuate the transfer of the Trust Mortgage Loans by the Depositor to the Trustee.
(xiv) Immediately prior to the transfer of the UBS Non-Xxxxxx Trust Mortgage Loans to the Trust pursuant to this Agreement (and assuming that the UBS related Unaffiliated Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Non-Xxxxxx Trust Mortgage Loan, free and clear of all liens, claims, encumbrances and other interests), (A) the Depositor had good and marketable title to, and was the sole owner and holder of, each UBS Non-Xxxxxx Trust Mortgage Loan; , and (B) the Depositor has full right and authority to sell, assign and transfer the UBS each Non-Xxxxxx Trust Mortgage LoansLoan, exclusive of the servicing rights pertaining thereto.
(b) The Depositor hereby makes to the Trustee, for the Trustee's own benefit and the benefit of the Certificateholders, with respect to each Xxxxxx Trust Mortgage Loan only, the representations and warranties shown on Schedule II hereto, as of the Closing Date or such other date specified in the particular representation and warranty, subject to the exceptions set forth on Schedule III hereto (the headings set forth in Schedule II hereto with respect to each representation and warranty being for convenience of reference only and in no way limiting, expanding or otherwise affecting the scope or subject matter thereof). Except as expressly provided in Section 2.04(a), the Depositor does not make any representations or warranties regarding the UBS Non-Xxxxxx Trust Mortgage Loans.
(c) The representations, warranties and covenants of the Depositor set forth in or made pursuant to Section 2.04(a) and Section 2.04(b) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any breach of any of such representations, warranties and covenants, the party discovering such breach shall give prompt written notice thereof to the other parties.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (LB-UBS Commercial Mortgage Trust 2008-C1)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, warrants and covenants to the Trustee, for its own benefit and the benefit of the Certificateholders, and to the Fiscal Agent, the Master Servicer and the Special Servicer, as of the Closing Date, that:
(i) The Depositor is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full power and authority taken all necessary corporate action to enter into and consummate all transactions contemplated by this Agreement, has duly authorized authorize the execution, delivery and performance of this AgreementAgreement by it, and has duly executed the power and delivered authority to execute, deliver and perform this Agreement and all the transactions contemplated hereby, including, but not limited to, the power and authority to sell, assign and transfer the Mortgage Loans in accordance with this Agreement.;
(ivii) This Agreement, assuming Assuming the due authorization, execution and delivery of this Agreement by each other party hereto, this Agreement and all of the other parties heretoobligations of the Depositor hereunder are the legal, constitutes a valid, legal valid and binding obligation obligations of the Depositor, enforceable against the Depositor in accordance with the terms hereofof this Agreement, subject to (A) applicable except as such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium and reorganization or other similar laws affecting the enforcement of creditors' rights generally, and (B) by general principles of equity, equity (regardless of whether such enforcement enforceability is considered in a proceeding in equity or at law.);
(viii) The Depositor is not in violation of, and its execution and delivery of this Agreement and the performance of its performance and compliance with obligations hereunder by the terms of this Agreement Depositor will not conflict with any provisions of any law or regulations to which the Depositor is subject, or conflict with, result in a breach of or constitute a violation ofdefault under any of the terms, conditions or provisions of the certificate of incorporation or the by-laws of the Depositor or any lawindenture, agreement or instrument to which the Depositor is a party or by which it is bound, or any order or decree applicable to the Depositor, or result in the creation or imposition of any court or arbiter, or lien on any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Depositor's good faith and reasonable judgmentassets or property, is likely to affect which would materially and adversely either affect the ability of the Depositor to perform its obligations under carry out the transactions contemplated by this Agreement Agreement; the Depositor has obtained any consent, approval, authorization or order of any court or governmental agency or body required for the financial condition execution, delivery and performance by the Depositor of the Depositor.this Agreement;
(viiv) The transfer of the Trust Mortgage Loans to the Trustee as contemplated herein requires There is no regulatory approvalaction, other than any such approvals as have been obtained, and is not subject to any bulk transfer suit or similar law in effect in any applicable jurisdiction.
(vii) The Depositor is not transferring the Trust Mortgage Loans to the Trustee with any intent to hinder, delay or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left with unreasonably small assets or capital with which to engage in and conduct its business.
(x) The Depositor 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.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xii) No litigation is proceeding pending or, to the best of the Depositor's knowledge, threatened against the Depositor that, if determined adversely to the Depositor, in any court or by or before any other governmental agency or instrumentality which would prohibit the Depositor from entering into this Agreement or that, in the Depositor's good faith and reasonable judgment, is likely to materially and adversely affect either the validity of the Mortgage Loans or the ability of the Depositor to perform its obligations under carry out the transactions contemplated by this Agreement or Agreement; and
(v) The Depositor is the financial condition lawful owner of the Depositor.
(xiii) Except for any actions that are the express responsibility of another party hereunder or under the Mortgage Loan Purchase Agreements, and further except for actions that the Depositor is expressly permitted to complete subsequent to the Closing Date, the Depositor has taken all actions required under applicable law to effectuate the transfer of the Trust Mortgage Loans by (other than the Depositor to Oakmonte Senior Portion) and the Trustee.
(xiv) Immediately prior to the transfer of the UBS Trust Mortgage Loans to the Trust pursuant to this Agreement (and assuming that the UBS Mortgage Oakmonte Apartment Homes Whole Loan Seller transferred to the Depositor good and marketable title to each UBS Trust Mortgage Loan, free and clear of all liens, claims, encumbrances and other interests), (A) interests with the Depositor had good and marketable title to, and was the sole owner and holder of, each UBS Trust Mortgage Loan; and (B) the Depositor has full right and authority to sell, assign and transfer the UBS Trust Mortgage Loans, exclusive of Loans (other than the servicing rights pertaining thereto.
(bOakmonte Senior Portion) The Depositor hereby makes and the Oakmonte Apartment Homes Whole Loan to the Trustee, for the Trustee's own benefit Trust and the benefit of Mortgage Loans (other than the Certificateholders, with respect to each Xxxxxx Trust Mortgage Oakmonte Senior Portion) and the Oakmonte Apartment Homes Whole Loan only, the representations and warranties shown on Schedule II hereto, as of the Closing Date or such other date specified in the particular representation and warranty, subject have been validly transferred to the exceptions set forth on Schedule III hereto (the headings set forth in Schedule II hereto with respect to each representation and warranty being for convenience of reference only and in no way limiting, expanding or otherwise affecting the scope or subject matter thereof)Trust. Except as expressly provided in Section 2.04(a), the Depositor does not make any representations or warranties regarding the UBS Trust Mortgage Loans.
(c) The representations, warranties and covenants of the Depositor set forth in or made pursuant to this Section 2.04(a) and Section 2.04(b) 2.04 shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any breach of any of such representations, warranties and covenants, the party discovering such breach shall give prompt written notice thereof to the other parties.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Greenwich Capital Commercial Fund Corp Comm Mort Tr 2003-C1)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, represents and warrants and covenants to the TrusteeServicer, for its own benefit the NIMs Insurer and the benefit of the Certificateholders, and to the Master Servicer and the Special ServicerTrustee as follows, as of the Closing Date, thatdate hereof:
(i) The Depositor is duly organized and is validly existing as a corporation duly organized, validly existing and in good standing under the laws of the State of DelawareDelaware and has full power and authority (corporate and other) 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 and the Sale Agreement.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full corporate power and authority to execute, deliver and perform, and to enter into and consummate all the transactions contemplated by by, this Agreement, Agreement and the Sale Agreement and has duly authorized authorized, by all necessary corporate action on its part, the execution, delivery and performance of this Agreement and the Sale Agreement, ; and has duly executed this Agreement and delivered this Agreement.
(iv) This the Sale Agreement, assuming the due authorization, execution and delivery hereof by each of the other parties hereto, constitutes a validlegal, legal valid and binding obligation of the Depositor, enforceable against the Depositor in accordance with the terms hereofits terms, subject subject, as to enforceability, to (Ai) applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally, generally and (Bii) general principles of equity, regardless of whether such enforcement is considered sought in a proceeding in equity or at law.
(viii) The Depositor is not in violation of, and its execution and delivery of this Agreement and its performance the Sale Agreement by the Depositor, the consummation of the transactions contemplated by this Agreement and the Sale Agreement, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Depositor and will not (A) result in a material breach of any term or provision of the charter or by-laws of the Depositor or (B) materially conflict with, result in a violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Depositor is a party or by which it may be bound or (C) constitute a material violation of any statute, order or regulation applicable to the Depositor of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Depositor; and the Depositor is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Depositor's ability to perform or meet any of its obligations under this Agreement.
(iv) No litigation is pending, or, to the best of the Depositor's knowledge, threatened, against the Depositor that would materially and adversely affect the execution, delivery or enforceability of this Agreement will not constitute a violation of, any law, any order and the Sale Agreement or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Depositor's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Depositor to perform its obligations under this Agreement or and the financial condition of Sale Agreement in accordance with the Depositorterms hereof.
(viv) The transfer No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Depositor of, or compliance by the Depositor with, this Agreement and the Sale Agreement or the consummation of the Trust Mortgage Loans to the Trustee as transactions contemplated herein requires no regulatory hereby, or if any such consent, approval, other than any such approvals as have been obtainedauthorization or order is required, and is not subject to any bulk transfer or similar law in effect in any applicable jurisdiction.
(vii) the Depositor has obtained the same. The Depositor is not transferring the Trust Mortgage Loans hereby represents and warrants to the Trustee with any intent respect to hinder, delay or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left with unreasonably small assets or capital with which to engage in and conduct its business.
(x) The Depositor 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.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xii) No litigation is pending or, to the best of the Depositor's knowledge, threatened against the Depositor that, if determined adversely to the Depositor, would prohibit the Depositor from entering into this Agreement or that, in the Depositor's good faith and reasonable judgment, is likely to materially and adversely affect either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(xiii) Except for any actions that are the express responsibility of another party hereunder or under the each Mortgage Loan Purchase Agreements, and further except for actions that the Depositor is expressly permitted to complete subsequent to as of the Closing Date, the Depositor has taken all actions required under applicable law to effectuate and following the transfer of the Trust Mortgage Loans by the Depositor to the Trustee.
(xiv) Immediately prior to the transfer of the UBS Trust Mortgage Loans to it by the Trust pursuant to this Agreement (and assuming that the UBS Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Trust Mortgage LoanSeller, free and clear of all liens, claims, encumbrances and other interests), (A) the Depositor had good title to the Mortgage Loans and marketable title tothe Mortgage Notes were subject to no offsets, and was the sole owner and holder ofclaims, each UBS Trust Mortgage Loan; and (B) the Depositor has full right and authority to sellliens, assign and transfer the UBS Trust Mortgage Loansmortgage, exclusive of the servicing rights pertaining theretopledge, charge, security interest, defenses or counterclaims.
(b) The Depositor hereby makes to the Trustee, for the Trustee's own benefit representations and the benefit warranties of the Certificateholders, Transferor with respect to each Xxxxxx Trust the Mortgage Loan only, Loans contained in the Transfer Agreement were made as of the date of the Transfer Agreement and brought forward to the Closing Date pursuant to the Bring Down Letter. The representations and warranties shown on Schedule II hereto, of the Transferor with respect to the Mortgage Loans contained in the Bring Down Letter were made as of the Closing Date or such other date specified in Date. The representations and warranties of the particular representation and warranty, subject to the exceptions set forth on Schedule III hereto (the headings set forth in Schedule II hereto Seller with respect to each the Mortgage Loans contained in the Sale Agreement were made as of the Closing Date. To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of both (i) a representation or warranty of the Transferor under the Transfer Agreement and (ii) a representation or warranty being for convenience of reference only and in no way limiting, expanding or otherwise affecting the scope or subject matter thereof). Except as expressly provided in Section 2.04(a)Seller under the Sale Agreement, the Depositor does not make only right or remedy of the Trustee, the NIMs Insurer or of any representations Certificateholder shall be the Trustee's right to enforce the obligations of the Transferor under any applicable representation or warranties regarding warranty made by it. The Trustee acknowledges that the UBS Trust Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Mortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the Transferor in the Transfer Agreement, without regard to whether the Transferor fulfills its contractual obligations in respect of such representation or warranty. The Trustee also acknowledges that the Seller shall have no obligation or liability with respect to any breach of a representation or warranty made solely by the Transferor with respect to the Mortgage Loans.
(c) , without regard to whether the Transferor fulfills its contractual obligations in respect of such representation or warranty. The representations, warranties and covenants of Trustee further acknowledges that the Depositor set forth in shall have no obligation or made pursuant liability with respect to Section 2.04(a) and Section 2.04(b) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any breach of any of such representations, warranties and covenants, the party discovering such breach shall give prompt written notice thereof representation or warranty with respect to the other partiesMortgage Loans (except as set forth in Section 2.03(a)(v)) under any circumstances.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Trust Series 2005-Wmc2)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, represents and warrants and covenants to the TrusteeServicer, for its own benefit the NIMs Insurer and the benefit of the Certificateholders, and to the Master Servicer and the Special ServicerTrustee as follows, as of the Closing Date, thatdate hereof:
(i) The Depositor is duly organized and is validly existing as a corporation duly organized, validly existing and in good standing under the laws of the State of DelawareDelaware and has full power and authority (corporate and other) 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 and the Sale Agreement.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full corporate power and authority to execute, deliver and perform, and to enter into and consummate all the transactions contemplated by by, this Agreement, Agreement and the Sale Agreement and has duly authorized authorized, by all necessary corporate action on its part, the execution, delivery and performance of this Agreement and the Sale Agreement, ; and has duly executed this Agreement and delivered this Agreement.
(iv) This the Sale Agreement, assuming the due authorization, execution and delivery hereof by each of the other parties hereto, constitutes a validlegal, legal valid and binding obligation of the Depositor, enforceable against the Depositor in accordance with the terms hereofits terms, subject subject, as to enforceability, to (Ai) applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally, generally and (Bii) general principles of equity, regardless of whether such enforcement is considered sought in a proceeding in equity or at law.
(viii) The Depositor is not in violation of, and its execution and delivery of this Agreement and its performance the Sale Agreement by the Depositor, the consummation of the transactions contemplated by this Agreement and the Sale Agreement, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Depositor and will not (A) result in a material breach of any term or provision of the charter or by-laws of the Depositor or (B) materially conflict with, result in a violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Depositor is a party or by which it may be bound or (C) constitute a material violation of any statute, order or regulation applicable to the Depositor of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Depositor; and the Depositor is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Depositor's ability to perform or meet any of its obligations under this Agreement.
(iv) No litigation is pending, or, to the best of the Depositor's knowledge, threatened, against the Depositor that would materially and adversely affect the execution, delivery or enforceability of this Agreement will not constitute a violation of, any law, any order and the Sale Agreement or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Depositor's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Depositor to perform its obligations under this Agreement or and the financial condition of Sale Agreement in accordance with the Depositorterms hereof.
(viv) The transfer No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Depositor of, or compliance by the Depositor with, this Agreement and the Sale Agreement or the consummation of the Trust Mortgage Loans to the Trustee as transactions contemplated herein requires no regulatory hereby, or if any such consent, approval, other than any such approvals as have been obtainedauthorization or order is required, and is not subject to any bulk transfer or similar law in effect in any applicable jurisdiction.
(vii) the Depositor has obtained the same. The Depositor is not transferring the Trust Mortgage Loans hereby represents and warrants to the Trustee with any intent respect to hinder, delay or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left with unreasonably small assets or capital with which to engage in and conduct its business.
(x) The Depositor 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.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xii) No litigation is pending or, to the best of the Depositor's knowledge, threatened against the Depositor that, if determined adversely to the Depositor, would prohibit the Depositor from entering into this Agreement or that, in the Depositor's good faith and reasonable judgment, is likely to materially and adversely affect either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(xiii) Except for any actions that are the express responsibility of another party hereunder or under the each Mortgage Loan Purchase Agreements, and further except for actions that the Depositor is expressly permitted to complete subsequent to as of the Closing Date, the Depositor has taken all actions required under applicable law to effectuate and following the transfer of the Trust Mortgage Loans by the Depositor to the Trustee.
(xiv) Immediately prior to the transfer of the UBS Trust Mortgage Loans to it by the Trust pursuant to this Agreement (and assuming that the UBS Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Trust Mortgage LoanSeller, free and clear of all liens, claims, encumbrances and other interests), (A) the Depositor had good title to the Mortgage Loans and marketable title tothe Mortgage Notes were subject to no offsets, and was the sole owner and holder ofclaims, each UBS Trust Mortgage Loan; and (B) the Depositor has full right and authority to sellliens, assign and transfer the UBS Trust Mortgage Loansmortgage, exclusive of the servicing rights pertaining theretopledge, charge, security interest, defenses or counterclaims.
(b) The Depositor hereby makes to the Trustee, for the Trustee's own benefit representations and the benefit warranties of the Certificateholders, each Transferor with respect to each Xxxxxx Trust the related Mortgage Loan onlyLoans in the applicable Transfer Agreement, which have been assigned to the Trustee hereunder, were made as of the date specified in the applicable Transfer Agreement and brought forward to the Closing Date pursuant to the related Bring Down Letter. The representations and warranties shown on Schedule II hereto, of each Transferor with respect to the Mortgage Loans contained in the Bring Down Letter were made as of the Closing Date or such other date specified in Date. The representations and warranties of the particular representation and warranty, subject to the exceptions set forth on Schedule III hereto (the headings set forth in Schedule II hereto Seller with respect to each the Mortgage Loans contained in the Sale Agreement were made as of the Closing Date. To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of both (i) a representation or warranty of the applicable Transferor under the applicable Transfer Agreement and (ii) a representation or warranty being for convenience of reference only and in no way limiting, expanding or otherwise affecting the scope or subject matter thereof). Except as expressly provided in Section 2.04(a)Seller under the Sale Agreement, the Depositor does not make only right or remedy of the Trustee, the NIMs Insurer or of any representations Certificateholder shall be the Trustee's right to enforce the obligations of the applicable Transferor under any applicable representation or warranties regarding warranty made by it. Unless otherwise stated in the UBS Trust Sale Agreement, the Trustee acknowledges that the Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Mortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in the related Transfer Agreement, without regard to whether the Transferors fulfills its contractual obligations in respect of such representation or warranty. The Trustee also acknowledges that the Seller shall have no obligation or liability with respect to any breach of a representation or warranty made solely by the Transferors with respect to the Mortgage Loans.
(c) , without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty. The representations, warranties and covenants of Trustee further acknowledges that the Depositor set forth in shall have no obligation or made pursuant liability with respect to Section 2.04(a) and Section 2.04(b) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any breach of any of such representations, warranties and covenants, the party discovering such breach shall give prompt written notice thereof representation or warranty with respect to the other partiesMortgage Loans (except as set forth in Section 2.03(a)(v)) under any circumstances.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Trust Series 2005-He1)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, represents and warrants and covenants to the TrusteeServicer, for its own benefit the Trustee and the benefit of the Certificateholders, and to the Master Servicer and the Special ServicerNIM Insurer as follows, as of the Closing Date, that:date hereof
(i) The Depositor is duly organized and is validly existing as a corporation duly organized, validly existing and in good standing under the laws of the State of DelawareDelaware and has full power and authority (corporate and other) 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 and the Sale Agreement.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full corporate power and authority to execute, deliver and perform, and to enter into and consummate all the transactions contemplated by by, this Agreement, Agreement and the Sale Agreement and has duly authorized authorized, by all necessary corporate action on its part, the execution, delivery and performance of this Agreement and the Sale Agreement, ; and has duly executed this Agreement and delivered this Agreement.
(iv) This the Sale Agreement, assuming the due authorization, execution and delivery hereof by each of the other parties hereto, constitutes a validlegal, legal valid and binding obligation of the Depositor, enforceable against the Depositor in accordance with the terms hereofits terms, subject subject, as to enforceability, to (Ai) applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally, generally and (Bii) general principles of equity, regardless of whether such enforcement is considered sought in a proceeding in equity or at law.
(viii) The Depositor is not in violation of, and its execution and delivery of this Agreement and its performance the Sale Agreement by the Depositor, the consummation of the transactions contemplated by this Agreement and the Sale Agreement, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Depositor and will not (A) result in a material breach of any term or provision of the charter or by-laws of the Depositor or (B) materially conflict with, result in a violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Depositor is a party or by which it may be bound or (C) constitute a material violation of any statute, order or regulation applicable to the Depositor of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Depositor; and the Depositor is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Depositor's ability to perform or meet any of its obligations under this Agreement.
(iv) No litigation is pending, or, to the best of the Depositor's knowledge, threatened, against the Depositor that would materially and adversely affect the execution, delivery or enforceability of this Agreement will not constitute a violation of, any law, any order and the Sale Agreement or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Depositor's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Depositor to perform its obligations under this Agreement or and the financial condition of Sale Agreement in accordance with the Depositorterms hereof.
(viv) The transfer No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Depositor of, or compliance by the Depositor with, this Agreement and the Sale Agreement or the consummation of the Trust Mortgage Loans to the Trustee as transactions contemplated herein requires no regulatory hereby, or if any such consent, approval, other than any such approvals as have been obtainedauthorization or order is required, and is not subject to any bulk transfer or similar law in effect in any applicable jurisdiction.
(vii) the Depositor has obtained the same. The Depositor is not transferring the Trust Mortgage Loans hereby represents and warrants to the Trustee with any intent respect to hinder, delay or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left with unreasonably small assets or capital with which to engage in and conduct its business.
(x) The Depositor 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.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xii) No litigation is pending or, to the best of the Depositor's knowledge, threatened against the Depositor that, if determined adversely to the Depositor, would prohibit the Depositor from entering into this Agreement or that, in the Depositor's good faith and reasonable judgment, is likely to materially and adversely affect either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(xiii) Except for any actions that are the express responsibility of another party hereunder or under the each Mortgage Loan Purchase Agreements, and further except for actions that the Depositor is expressly permitted to complete subsequent to as of the Closing Date, the Depositor has taken all actions required under applicable law to effectuate and following the transfer of the Trust Mortgage Loans by the Depositor to the Trustee.
(xiv) Immediately prior to the transfer of the UBS Trust Mortgage Loans to it by the Trust pursuant to this Agreement (and assuming that the UBS Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Trust Mortgage LoanSeller, free and clear of all liens, claims, encumbrances and other interests), (A) the Depositor had good title to the Mortgage Loans and marketable title tothe Mortgage Notes were subject to no offsets, and was the sole owner and holder ofclaims, each UBS Trust Mortgage Loan; and (B) the Depositor has full right and authority to sellliens, assign and transfer the UBS Trust Mortgage Loansmortgage, exclusive of the servicing rights pertaining theretopledge, charge, security interest, defenses or counterclaims.
(b) The Depositor hereby makes To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of a representation or warranty of the Seller under the Sale Agreement, the only right or remedy of the Trustee, for the NIM Insurer or of any Certificateholder shall be the Trustee's own benefit and right to enforce the benefit obligations of the Certificateholders, Seller under any applicable representation or warranty made by it. The Trustee acknowledges that the Depositor shall have no obligation or liability with respect to each Xxxxxx Trust Mortgage Loan only, the representations and warranties shown on Schedule II hereto, as any breach of the Closing Date any representation or such other date specified in the particular representation and warranty, subject warranty with respect to the exceptions set forth on Schedule III hereto Mortgage Loans (the headings except as set forth in Schedule II hereto with respect to each representation and warranty being for convenience of reference only and in no way limiting, expanding or otherwise affecting the scope or subject matter thereofSection 2.03(a)(v). Except as expressly provided in Section 2.04(a), the Depositor does not make ) under any representations or warranties regarding the UBS Trust Mortgage Loanscircumstances.
(c) The representations, warranties and covenants of the Depositor set forth in or made pursuant to Section 2.04(a) and Section 2.04(b) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any the Depositor, the Servicer, the NIM Insurer, or the Trustee of a breach of any of such representationsrepresentations and warranties set forth in the Sale Agreement that adversely and materially affects the value of the related Mortgage Loan, warranties and covenantsprepayment charges or the interests of the Certificateholders, the party discovering such breach shall give prompt written notice thereof to the other parties.. Within 90 days of the discovery of a breach of any representation or warranty given to the Trustee by the Depositor, the Seller and assigned to the Trustee, the Depositor, or the Seller shall either (a) cure such breach in all material respects, (b) repurchase such Mortgage Loan or any property acquired in respect thereof from the Trustee at the Purchase Price or (c) within the two year period following the Closing Date, substitute a Replacement Mortgage Loan for the affected Mortgage Loan. In the event of discovery of a breach of any representation and warranty of the Seller or the Depositor, the Trustee shall enforce its rights under the Sale Agreement or thereunder for the benefit of Certificateholders and the NIM Insurer. If a breach of the representations and warranties set forth in the Sale Agreement hereof exists solely due to the unenforceability of a prepayment charge, the Trustee shall notify the NIM Insurer thereof and not seek to enforce the repurchase remedy provided for herein unless directed in writing to do so by the NIM Insurer. In the event of a breach of the representations and warranties with respect to the Mortgage Loans set forth in a Sale Agreement, the Trustee shall at the request of the NIM Insurer enforce the right of the Trust Fund and the NIM Insurer to be indemnified for such breach of representation and warranty. In the event that such breach relates solely to the unenforceability of a prepayment charge, amounts received in respect of such indemnity up to the amount of such prepayment charge shall be distributed pursuant to Section 4.04(b)(i)(B). As provided in the Sale Agreement, if the Seller substitutes for a Mortgage Loan for which there is a breach of any representations and warranties which adversely and materially affects the value of such Mortgage Loan and such substitute mortgage loan is not a Replacement Mortgage Loan, under the terms of the Sale Agreement, the Seller will, in exchange for such substitute Mortgage Loan, (i) provide the applicable Purchase Price for the affected Mortgage Loan or (ii) within two years of the Closing Date, substitute such affected Mortgage Loan with a Replacement Mortgage Loan. Any such substitution shall not be effected prior to the additional delivery to the Trustee of a Request for Release substantially in the form of Exhibit I and shall not be effected unless it is within two years of the Startup
Appears in 1 contract
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, represents and warrants and covenants to the TrusteeServicer, for its own benefit the NIMs Insurer and the benefit of the Certificateholders, and to the Master Servicer and the Special ServicerTrustee as follows, as of the Closing Date, thatdate hereof:
(i) The Depositor is duly organized and is validly existing as a corporation duly organized, validly existing and in good standing under the laws of the State of DelawareDelaware and has full power and authority (corporate and other) 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 and the Sale Agreement.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full corporate power and authority to execute, deliver and perform, and to enter into and consummate all the transactions contemplated by by, this Agreement, Agreement and the Sale Agreement and has duly authorized authorized, by all necessary corporate action on its part, the execution, delivery and performance of this Agreement and the Sale Agreement, ; and has duly executed this Agreement and delivered this Agreement.
(iv) This the Sale Agreement, assuming the due authorization, execution and delivery hereof by each of the other parties hereto, constitutes a validlegal, legal valid and binding obligation of the Depositor, enforceable against the Depositor in accordance with the terms hereofits terms, subject subject, as to enforceability, to (Ai) applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally, generally and (Bii) general principles of equity, regardless of whether such enforcement is considered sought in a proceeding in equity or at law.
(viii) The Depositor is not in violation of, and its execution and delivery of this Agreement and its performance the Sale Agreement by the Depositor, the consummation of the transactions contemplated by this Agreement and the Sale Agreement, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Depositor and will not (A) result in a material breach of any term or provision of the charter or by-laws of the Depositor or (B) materially conflict with, result in a violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Depositor is a party or by which it may be bound or (C) constitute a material violation of any statute, order or regulation applicable to the Depositor of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Depositor; and the Depositor is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Depositor's ability to perform or meet any of its obligations under this Agreement.
(iv) No litigation is pending, or, to the best of the Depositor's knowledge, threatened, against the Depositor that would materially and adversely affect the execution, delivery or enforceability of this Agreement will not constitute a violation of, any law, any order and the Sale Agreement or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Depositor's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Depositor to perform its obligations under this Agreement or and the financial condition of Sale Agreement in accordance with the Depositorterms hereof.
(viv) The transfer No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Depositor of, or compliance by the Depositor with, this Agreement and the Sale Agreement or the consummation of the Trust Mortgage Loans to the Trustee as transactions contemplated herein requires no regulatory hereby, or if any such consent, approval, other than any such approvals as have been obtainedauthorization or order is required, and is not subject to any bulk transfer or similar law in effect in any applicable jurisdiction.
(vii) the Depositor has obtained the same. The Depositor is not transferring the Trust Mortgage Loans hereby represents and warrants to the Trustee with any intent respect to hinder, delay or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left with unreasonably small assets or capital with which to engage in and conduct its business.
(x) The Depositor 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.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xii) No litigation is pending or, to the best of the Depositor's knowledge, threatened against the Depositor that, if determined adversely to the Depositor, would prohibit the Depositor from entering into this Agreement or that, in the Depositor's good faith and reasonable judgment, is likely to materially and adversely affect either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(xiii) Except for any actions that are the express responsibility of another party hereunder or under the each Mortgage Loan Purchase Agreements, and further except for actions that the Depositor is expressly permitted to complete subsequent to as of the Closing Date, the Depositor has taken all actions required under applicable law to effectuate and following the transfer of the Trust Mortgage Loans by the Depositor to the Trustee.
(xiv) Immediately prior to the transfer of the UBS Trust Mortgage Loans to it by the Trust pursuant to this Agreement (and assuming that the UBS Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Trust Mortgage LoanSeller, free and clear of all liens, claims, encumbrances and other interests), (A) the Depositor had good title to the Mortgage Loans and marketable title tothe Mortgage Notes were subject to no offsets, and was the sole owner and holder ofclaims, each UBS Trust Mortgage Loan; and (B) the Depositor has full right and authority to sellliens, assign and transfer the UBS Trust Mortgage Loansmortgage, exclusive of the servicing rights pertaining theretopledge, charge, security interest, defenses or counterclaims.
(b) The Depositor hereby makes to the Trustee, for the Trustee's own benefit representations and the benefit warranties of the Certificateholders, Seller with respect to each Xxxxxx Trust the Mortgage Loan only, Loans contained in the representations and warranties shown on Schedule II hereto, Sale Agreement were made as of the Closing Date Date. To the extent that any fact, condition or such other date specified in event with respect to a Mortgage Loan constitutes a breach of a representation or warranty of the particular Seller under the Sale Agreement, the only right or remedy of the Trustee, the NIMs Insurer or of any Certificateholder shall be the Trustee's right to enforce the obligations of the Seller under any applicable representation and warranty, subject or warranty made by it. The Trustee acknowledges that the Depositor shall have no obligation or liability with respect to any breach of any representation or warranty with respect to the exceptions set forth on Schedule III hereto Mortgage Loans (the headings except as set forth in Schedule II hereto with respect to each representation and warranty being for convenience of reference only and in no way limiting, expanding or otherwise affecting the scope or subject matter thereofSection 2.03(a)(v). Except as expressly provided in Section 2.04(a), the Depositor does not make ) under any representations or warranties regarding the UBS Trust Mortgage Loanscircumstances.
(c) The representations, warranties and covenants of the Depositor set forth in or made pursuant to Section 2.04(a) and Section 2.04(b) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any the Depositor, the Servicer, the NIMs Insurer or the Trustee of a breach of any of such representationsrepresentations and warranties that adversely and materially affects the value of the related Mortgage Loan, warranties and covenantsPrepayment Charges or the interests of the Certificateholders, the party discovering such breach shall give prompt written notice thereof to the other parties. Within 90 days of the discovery of such breach of any representation or warranty, the Seller shall either (a) cure such breach in all material respects, (b) repurchase such Mortgage Loan or any property acquired in respect thereof from the Trustee at the Purchase Price or (c) within the two year period following the Closing Date, substitute a Replacement Mortgage Loan for the affected Mortgage Loan. In the event of discovery of a breach of any representation and warranty of the Seller, the Trustee shall enforce its rights under the Sale Agreement for the benefit of Certificateholders and the NIMs Insurer. If a breach of the representations and warranties set forth in the Sale Agreement exists solely due to the unenforceability of a Prepayment Charge, the Trustee shall notify the NIMs Insurer thereof and not seek to enforce the repurchase remedy provided for herein unless directed in writing to do so by the NIMs Insurer. In the event of a breach of the representations and warranties with respect to the Mortgage Loans set forth in the Sale Agreement, the Trustee shall, at the request of the NIMs Insurer, enforce the right of the Trust Fund and the NIMs Insurer to be indemnified for such breach of representation and warranty. In the event that such breach relates solely to the unenforceability of a Prepayment Charge, amounts received in respect of such indemnity up to the amount of such Prepayment Charge shall be distributed pursuant to Section 4.04(b)(i). As provided in the Sale Agreement, if the Seller substitutes for a Mortgage Loan for which there is a breach of any representations and warranties in the Sale Agreement which adversely and materially affects the value of such Mortgage Loan and such substitute mortgage loan is not a Replacement Mortgage Loan, under the terms of the Sale Agreement, the Seller will, in exchange for such substitute Mortgage Loan, (i) provide the applicable Purchase Price for the affected Mortgage Loan or (ii) within two years of the Closing Date, substitute such affected Mortgage Loan with a Replacement Mortgage Loan. Any such substitution shall not be effected prior to the additional delivery to the Trustee of a Request for Release substantially in the form of Exhibit I and shall not be effected unless it is within two years of the Startup Day. As provided in the Sale Agreement, the Seller indemnifies and holds the Trust Fund, the Trustee, the Depositor, the NIMs Insurer, the Servicer and each Certificateholder harmless against any and all taxes, claims, losses, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, fees and expenses that the Trust Fund, the Trustee, the Depositor, the NIMs Insurer, the Servicer and any Certificateholder may sustain in connection with any actions of the Seller relating to a repurchase of a Mortgage Loan other than in compliance with the terms of this Section 2.03 and the Sale Agreement, to the extent that any such action causes (i) any federal or state tax to be imposed on the Trust Fund or any REMIC provided for herein, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup day" under Section 860G(d)(1) of the Code, or (ii) any REMIC created hereunder to fail to qualify as a REMIC at any time that any Certificate is outstanding. In furtherance of the foregoing, if the Seller is not a member of MERS and repurchases a Mortgage Loan which is registered on the MERS System, the Seller, at its own expense and without any right of reimbursement, shall cause MERS to execute and deliver an assignment of the Mortgage in recordable form to transfer the Mortgage from MERS to the Seller and shall cause such Mortgage to be removed from registration on the MERS System in accordance with MERS' rules and regulations. With respect to any Mortgage Loan repurchased by the Depositor pursuant to this Agreement or by the Seller pursuant to the Sale Agreement, the principal portion of the funds received by the Servicer in respect of such repurchase of a Mortgage Loan will be considered a Principal Prepayment and shall be -55- deposited by the Servicer in the Collection Account pursuant to Section 3.05 and the Servicer shall notify the Trustee of its receipt of the same. The Trustee, upon receipt of the full amount of the Purchase Price for a Deleted Mortgage Loan, or upon receipt of the Mortgage File for a Replacement Mortgage Loan substituted for a Deleted Mortgage Loan, shall release or cause to be released and reassign to the Depositor or the Seller, as applicable, the related Mortgage File for the Deleted Mortgage Loan and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation or warranty, as shall be necessary to vest in such party or its designee or assignee title to any Deleted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Trustee, and the Trustee shall not have any further responsibility with respect to the Mortgage File relating to such Deleted Mortgage Loan. With respect to each Replacement Mortgage Loan to be delivered to the Trustee pursuant to the terms of this Article II in exchange for a Deleted Mortgage Loan: (i) the Depositor or the Seller, as applicable, must deliver to the Trustee (or its custodian) the Mortgage File for the Replacement Mortgage Loan containing the documents set forth in Section 2.01 along with a written certification certifying as to the satisfaction by such Mortgage Loan of all requirements under the definition of Replacement Mortgage Loan and the delivery of such Mortgage File and containing the granting language set forth in Section 2.01; and (ii) the Depositor will be deemed to have made, with respect to such Replacement Mortgage Loan, each of the representations and warranties made by it with respect to the related Deleted Mortgage Loan. The Trustee (or its custodian) shall review the Mortgage File with respect to each Replacement Mortgage Loan and certify to the NIMs Insurer and the Depositor that all documents required by Section 2.01 have been executed and received. For any month in which the Seller substitutes one or more Replacement Mortgage Loans for one or more Deleted Mortgage Loans, the Seller will determine the amount (if any) by which the aggregate principal balance of all such Replacement Mortgage Loans as of the date of substitution and the aggregate Prepayment Charges with respect to such Replacement Mortgage Loans is less than the aggregate Stated Principal Balance (after application of the principal portion of the Scheduled Payment due in the month of substitution) and aggregate Prepayment Charges of all such Deleted Mortgage Loans. An amount equal to the aggregate of the deficiencies described in the preceding sentence (such amount, the "Substitution Adjustment Amount") plus an amount equal to any unreimbursed costs, penalties and/or damages incurred by the Trust Fund in connection with any violation relating to such Deleted Mortgage Loan of any predatory or abusive lending law shall be remitted by the Seller to the Servicer for deposit into the Collection Account on the Determination Date for the Distribution Date relating to the Prepayment Period during which the related Mortgage Loan became required to be purchased or replaced hereunder. Notwithstanding any other provision of this Agreement, the right to substitute Mortgage Loans pursuant to this Article II shall be subject to the additional limitations that no substitution of a Replacement Mortgage Loan for a Deleted Mortgage Loan shall be made unless the Trustee and the NIMs Insurer shall have received an Opinion of Counsel (at the expense of the party seeking to make the substitution) that, under current law, such substitution will not (A) affect adversely the status of any REMIC established hereunder as a REMIC, or of the related "regular interests" as "regular interests" in any such REMIC, or (B) cause any such REMIC to engage in a "prohibited transaction" or prohibited contribution pursuant to the REMIC Provisions. The Trustee shall cause the Mortgage Loan Schedule to be amended in accordance with the terms of this Agreement. The Seller shall give or cause to be given written notice to the Certificateholders and the NIMs Insurer that such substitution has taken place, shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Replacement Mortgage Loan or Replacement Mortgage Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the NIMs Insurer, the Servicer and the Trustee. Upon such substitution by the Seller, such Replacement Mortgage Loan or Replacement Mortgage Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and the Sale Agreement, including all applicable representations and warranties thereof included in the Sale Agreement as of the date of substitution.
(d) It is understood and agreed that the representations, warranties and indemnification (i) set forth in this Section 2.03 and (ii) of the Seller and the Depositor set forth in the Sale Agreement and assigned to the Trustee by the Depositor hereunder shall each survive delivery of the Mortgage Files and the Assignment of Mortgage of each Mortgage Loan to the Trustee and shall continue throughout the term of this Agreement.
(e) The Depositor shall deliver a copy of the Mortgage Loan Schedule to the Servicer on the Closing Date.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (First Franklin Mortgage Loan Trust, Series 2005-Ffh1)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, represents and warrants and covenants to the TrusteeServicer, for its own benefit the NIMs Insurer and the benefit of the Certificateholders, and to the Master Servicer and the Special ServicerTrustee as follows, as of the Closing Date, thatdate hereof:
(i) The Depositor is duly organized and is validly existing as a corporation duly organized, validly existing and in good standing under the laws of the State of DelawareDelaware and has full power and authority (corporate and other) 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 and the Sale Agreement.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's certificate of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full corporate power and authority to execute, deliver and perform, and to enter into and consummate all the transactions contemplated by by, this Agreement, Agreement and the Sale Agreement and has duly authorized authorized, by all necessary corporate action on its part, the execution, delivery and performance of this Agreement and the Sale Agreement, ; and has duly executed this Agreement and delivered this Agreement.
(iv) This the Sale Agreement, assuming the due authorization, execution and delivery hereof by each of the other parties hereto, constitutes a validlegal, legal valid and binding obligation of the Depositor, enforceable against the Depositor in accordance with the terms hereofits terms, subject subject, as to enforceability, to (Ai) applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally, generally and (Bii) general principles of equity, regardless of whether such enforcement is considered sought in a proceeding in equity or at law.
(viii) The Depositor is not in violation of, and its execution and delivery of this Agreement and its performance the Sale Agreement by the Depositor, the consummation of the transactions contemplated by this Agreement and the Sale Agreement, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Depositor and will not (A) result in a material breach of any term or provision of the charter or by-laws of the Depositor or (B) materially conflict with, result in a violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Depositor is a party or by which it may be bound or (C) constitute a material violation of any statute, order or regulation applicable to the Depositor of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Depositor; and the Depositor is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Depositor's ability to perform or meet any of its obligations under this Agreement.
(iv) No litigation is pending, or, to the best of the Depositor's knowledge, threatened, against the Depositor that would materially and adversely affect the execution, delivery or enforceability of this Agreement will not constitute a violation of, any law, any order and the Sale Agreement or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Depositor's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Depositor to perform its obligations under this Agreement or and the financial condition of Sale Agreement in accordance with the Depositorterms hereof.
(viv) The transfer No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Depositor of, or compliance by the Depositor with, this Agreement and the Sale Agreement or the consummation of the Trust Mortgage Loans to the Trustee as transactions contemplated herein requires no regulatory hereby, or if any such consent, approval, other than any such approvals as have been obtainedauthorization or order is required, and is not subject to any bulk transfer or similar law in effect in any applicable jurisdiction.
(vii) the Depositor has obtained the same. The Depositor is not transferring the Trust Mortgage Loans hereby represents and warrants to the Trustee with any intent respect to hinder, delay or defraud its present or future creditors.
(viii) The Depositor has been solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage Loans to the Trustee pursuant to Section 2.01(a), the value of the Depositor's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Depositor's debts and obligations, including contingent and unliquidated debts and obligations of the Depositor, and the Depositor will not be left with unreasonably small assets or capital with which to engage in and conduct its business.
(x) The Depositor 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.
(xi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated.
(xii) No litigation is pending or, to the best of the Depositor's knowledge, threatened against the Depositor that, if determined adversely to the Depositor, would prohibit the Depositor from entering into this Agreement or that, in the Depositor's good faith and reasonable judgment, is likely to materially and adversely affect either the ability of the Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(xiii) Except for any actions that are the express responsibility of another party hereunder or under the each Mortgage Loan Purchase Agreements, and further except for actions that the Depositor is expressly permitted to complete subsequent to as of the Closing Date, the Depositor has taken all actions required under applicable law to effectuate and following the transfer of the Trust Mortgage Loans by the Depositor to the Trustee.
(xiv) Immediately prior to the transfer of the UBS Trust Mortgage Loans to it by the Trust pursuant to this Agreement (and assuming that the UBS Mortgage Loan Seller transferred to the Depositor good and marketable title to each UBS Trust Mortgage LoanSeller, free and clear of all liens, claims, encumbrances and other interests), (A) the Depositor had good title to the Mortgage Loans and marketable title tothe Mortgage Notes were subject to no offsets, and was the sole owner and holder ofclaims, each UBS Trust Mortgage Loan; and (B) the Depositor has full right and authority to sellliens, assign and transfer the UBS Trust Mortgage Loansmortgage, exclusive of the servicing rights pertaining theretopledge, charge, security interest, defenses or counterclaims.
(b) The Depositor hereby makes to the Trustee, for the Trustee's own benefit representations and the benefit warranties of the Certificateholders, Seller with respect to each Xxxxxx Trust the Mortgage Loan only, Loans contained in the representations and warranties shown on Schedule II hereto, Sale Agreement were made as of the Closing Date Date. To the extent that any fact, condition or such other date specified in event with respect to a Mortgage Loan constitutes a breach of a representation or warranty of the particular Seller under the Sale Agreement, the only right or remedy of the Trustee, the NIMs Insurer or of any Certificateholder shall be the Trustee's right to enforce the obligations of the Seller under any applicable representation and warranty, subject or warranty made by it. The Trustee acknowledges that the Depositor shall have no obligation or liability with respect to any breach of any representation or warranty with respect to the exceptions set forth on Schedule III hereto Mortgage Loans (the headings except as set forth in Schedule II hereto with respect to each representation and warranty being for convenience of reference only and in no way limiting, expanding or otherwise affecting the scope or subject matter thereofSection 2.03(a)(v). Except as expressly provided in Section 2.04(a), the Depositor does not make ) under any representations or warranties regarding the UBS Trust Mortgage Loanscircumstances.
(c) The representations, warranties and covenants of the Depositor set forth in or made pursuant to Section 2.04(a) and Section 2.04(b) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any the Depositor, the Servicer, the NIMs Insurer or the Trustee of a breach of any of such representationsrepresentations and warranties set forth in the Sale Agreement that adversely and materially affects the value of the related Mortgage Loan, warranties and covenantsPrepayment Charges or the interests of the Certificateholders, the party discovering such breach shall give prompt written notice thereof to the other parties. Within 90 days of the discovery of such breach of any representation or warranty, the the Seller shall either (a) cure such breach in all material respects, (b) repurchase such Mortgage Loan or any property acquired in respect thereof from the Trustee at the Purchase Price or (c) within the two year period following the Closing Date, substitute a Replacement Mortgage Loan for the affected Mortgage Loan. In the event of discovery of a breach of any representation and warranty of the Seller, the Trustee shall enforce its rights under the Sale Agreement for the benefit of Certificateholders and the NIMs Insurer. If a breach of the representations and warranties set forth in the Sale Agreement exists solely due to the unenforceability of a Prepayment Charge, the Trustee shall notify the NIMs Insurer thereof and not seek to enforce the repurchase remedy provided for herein unless directed in writing to do so by the NIMs Insurer. In the event of a breach of the representations and warranties with respect to the Mortgage Loans set forth in the Sale Agreement, the Trustee shall, at the request of the NIMs Insurer, enforce the right of the Trust Fund and the NIMs Insurer to be indemnified for such breach of representation and warranty. In the event that such breach relates solely to the unenforceability of a Prepayment Charge, amounts received in respect of such indemnity up to the amount of such Prepayment Charge shall be distributed pursuant to Section 4.04(b)(i). As provided in the Sale Agreement, if the Seller substitutes for a Mortgage Loan for which there is a breach of any representations and warranties in the Sale Agreement which adversely and materially affects the value of such Mortgage Loan and such substitute mortgage loan is not a Replacement Mortgage Loan, under the terms of the Sale Agreement, the Seller will, in exchange for such substitute Mortgage Loan, (i) provide the applicable Purchase Price for the affected Mortgage Loan or (ii) within two years of the Closing Date, substitute such affected Mortgage Loan with a Replacement Mortgage Loan. Any such substitution shall not be effected prior to the additional delivery to the Trustee of a Request for Release substantially in the form of Exhibit I and shall not be effected unless it is within two years of the Startup Day. As provided in the Sale Agreement, the Seller indemnifies and holds the Trust Fund, the Trustee, the Depositor, the NIMs Insurer, the Servicer and each Certificateholder harmless against any and all taxes, claims, losses, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, fees and expenses that the Trust Fund, the Trustee, the Depositor, the NIMs Insurer, the Servicer and any Certificateholder may sustain in connection with any actions of the Seller relating to a repurchase of a Mortgage Loan other than in compliance with the terms of this Section 2.03 and the Sale Agreement, to the extent that any such action causes (i) any federal or state tax to be imposed on the Trust Fund or any REMIC provided for herein, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup day" under Section 860G(d)(1) of the Code, or (ii) any REMIC created hereunder to fail to qualify as a REMIC at any time that any Certificate is outstanding. In furtherance of the foregoing, if the Seller is not a member of MERS and repurchases a Mortgage Loan which is registered on the MERS System, the Seller, at its own expense and without any right of reimbursement, shall cause MERS to execute and deliver an assignment of the Mortgage in recordable form to transfer the Mortgage from MERS to the Seller and shall cause such Mortgage to be removed from registration on the MERS System in accordance with MERS' rules and regulations. With respect to any Mortgage Loan repurchased by the Depositor pursuant to this Agreement or by the Seller pursuant to the Sale Agreement, the principal portion of the funds received by the Servicer in respect of such repurchase of a Mortgage Loan will be considered a Principal Prepayment and shall be deposited by the Servicer in the Collection Account pursuant to Section 3.05 and the Servicer shall notify the Trustee of its receipt of the same. The Trustee, upon receipt of the full amount of the Purchase Price for a Deleted Mortgage Loan, or upon receipt of the Mortgage File for a Replacement Mortgage Loan substituted for a Deleted Mortgage Loan, shall release or cause to be released and reassign to the Depositor or the Seller, as applicable, the related Mortgage File for the Deleted Mortgage Loan and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation or warranty, as shall be necessary to vest in such party or its designee or assignee title to any Deleted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Trustee, and the Trustee shall not have any further responsibility with respect to the Mortgage File relating to such Deleted Mortgage Loan. With respect to each Replacement Mortgage Loan to be delivered to the Trustee pursuant to the terms of this Article II in exchange for a Deleted Mortgage Loan: (i) the Depositor or the Seller, as applicable, must deliver to the Trustee (or its custodian) the Mortgage File for the Replacement Mortgage Loan containing the documents set forth in Section 2.01 along with a written certification certifying as to the satisfaction by such Mortgage Loan of all requirements under the definition of Replacement Mortgage Loan and the delivery of such Mortgage File and containing the granting language set forth in Section 2.01; and (ii) the Depositor will be deemed to have made, with respect to such Replacement Mortgage Loan, each of the representations and warranties made by it with respect to the related Deleted Mortgage Loan. The Trustee (or its custodian) shall review the Mortgage File with respect to each Replacement Mortgage Loan and certify to the NIMs Insurer and the Depositor that all documents required by Section 2.01 have been executed and received. For any month in which the Seller substitutes one or more Replacement Mortgage Loans for one or more Deleted Mortgage Loans, the Seller will determine the amount (if any) by which the aggregate principal balance of all such Replacement Mortgage Loans as of the date of substitution and the aggregate Prepayment Charges with respect to such Replacement Mortgage Loans is less than the aggregate Stated Principal Balance (after application of the principal portion of the Scheduled Payment due in the month of substitution) and aggregate Prepayment Charges of all such Deleted Mortgage Loans. An amount equal to the aggregate of the deficiencies described in the preceding sentence (such amount, the "Substitution Adjustment Amount") plus an amount equal to any unreimbursed costs, penalties and/or damages incurred by the Trust Fund in connection with any violation relating to such Deleted Mortgage Loan of any predatory or abusive lending law shall be remitted by the Seller to the Servicer for deposit into the Collection Account on the Determination Date for the Distribution Date relating to the Prepayment Period during which the related Mortgage Loan became required to be purchased or replaced hereunder. Notwithstanding any other provision of this Agreement, the right to substitute Mortgage Loans pursuant to this Article II shall be subject to the additional limitations that no substitution of a Replacement Mortgage Loan for a Deleted Mortgage Loan shall be made unless the Trustee and the NIMs Insurer shall have received an Opinion of Counsel (at the expense of the party seeking to make the substitution) that, under current law, such substitution will not (A) affect adversely the status of any REMIC established hereunder as a REMIC, or of the related "regular interests" as "regular interests" in any such REMIC, or (B) cause any such REMIC to engage in a "prohibited transaction" or prohibited contribution pursuant to the REMIC Provisions. The Trustee shall cause the Mortgage Loan Schedule to be amended in accordance with the terms of this Agreement. The Seller shall give or cause to be given written notice to the Certificateholders and the NIMs Insurer that such substitution has taken place, shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Replacement Mortgage Loan or Replacement Mortgage Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the NIMs Insurer, the Servicer and the Trustee. Upon such substitution by the Seller, such Replacement Mortgage Loan or Replacement Mortgage Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and the Sale Agreement, including all applicable representations and warranties thereof included in the Sale Agreement as of the date of substitution.
(d) It is understood and agreed that the representations, warranties and indemnification (i) set forth in this Section 2.03 and (ii) of the Seller and the Depositor set forth in the Sale Agreement and assigned to the Trustee by the Depositor hereunder shall each survive delivery of the Mortgage Files and the Assignment of Mortgage of each Mortgage Loan to the Trustee and shall continue throughout the term of this Agreement.
(e) The Depositor shall deliver a copy of the Mortgage Loan Schedule to the Servicer on the Closing Date.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Trust Series 2005-Sd1)
