Representations, Warranties and Covenants of the Master Servicer. The Master Servicer hereby represents, warrants and covenants to the Trust Administrator and the Trustee, for the benefit of each of the Trustee, the Trust Administrator, the Certificateholders and to the Depositor that as of the Closing Date or as of such date specifically provided herein: (i) The Master Servicer is a corporation duly organized, validly existing and in good standing under the laws of the State of New York and is duly authorized and qualified to transact any and all business contemplated by this Agreement to be conducted by the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to service the Mortgage Loans in accordance with the terms of this Agreement; (ii) The Master Servicer has the full corporate power and authority to service each Mortgage Loan, and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary corporate action on the part of the Master Servicer the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties hereto, constitutes a legal, valid and binding obligation of the Master Servicer, enforceable against the Master Servicer in accordance with its terms, except to the extent that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ rights generally and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought; (iii) The execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunder, the consummation of any other of the transactions herein contemplated, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Master Servicer and will not (A) result in a breach of any term or provision of the charter or by-laws of the Master Servicer or (B) conflict with, result in a breach, violation or acceleration of, or result in a default under, the terms of any other material agreement or instrument to which the Master Servicer is a party or by which it may be bound, or any statute, order or regulation applicable to the Master Servicer of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Master Servicer; and the Master Servicer 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 body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects or, to the Master Servicer’s knowledge, would in the future materially and adversely affect, (x) the ability of the Master Servicer to perform its obligations under this Agreement or (y) the business, operations, financial condition, properties or assets of the Master Servicer taken as a whole; (iv) The Master Servicer is an approved seller/servicer for Fxxxxx Mxx or Fxxxxxx Mac in good standing and is a HUD approved mortgagee pursuant to Section 203 of the National Housing Act; (v) No litigation is pending against the Master Servicer that would materially and adversely affect the execution, delivery or enforceability of this Agreement or the ability of the Master Servicer to service the Mortgage Loans or to perform any of its other obligations hereunder in accordance with the terms hereof; (vi) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the consummation of the transactions contemplated by this Agreement, except for such consents, approvals, authorizations or orders, if any, that have been obtained prior to the Closing Date; (vii) The Master Servicer covenants that its computer and other systems used in servicing the Mortgage Loans operate in a manner such that the Master Servicer can service the Mortgage Loans in accordance with the terms of this Agreement; and (viii) The Master Servicer (or a Sub-Servicer servicing the Mortgage Loans on its behalf) is a member of MERS in good standing, and will comply in all material respects with the rules and procedures of MERS in connection with the servicing of the Mortgage Loans that are registered with MERS. It is understood and agreed that the representations, warranties and covenants set forth in this Section 2.05 shall survive delivery of the Mortgage Files to the Trustee or to a Custodian on its behalf and shall inure to the benefit of the Trustee, the Trust Administrator, the Depositor and the Certificateholders. Upon discovery by any of the Depositor, the Master Servicer, the Trust Administrator or the Trustee of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any Mortgage Loan or the interests therein of the Certificateholders, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the Trustee. Subject to Section 7.01, the obligation of the Master Servicer set forth in Section 2.03(c) to cure breaches shall constitute the sole remedies against the Master Servicer available to the Certificateholders, the Depositor, the Trust Administrator or the Trustee on behalf of the Certificateholders respecting a breach of the representations, warranties and covenants contained in this Section 2.05.
Appears in 12 contracts
Samples: Pooling and Servicing Agreement (Citigroup Mortgage Loan Trust Inc., Series 2007-Ar7), Pooling and Servicing Agreement (Citigroup Mortgage Loan Trust 2006-4), Pooling and Servicing Agreement (Citigroup Mortgage Loan Trust 2007-Ar1)
Representations, Warranties and Covenants of the Master Servicer. The Master Servicer hereby represents, warrants and covenants to the Trust Administrator and the Trustee, for the benefit of each of the TrusteeTrustee and the Certificateholders, the Trust Administrator, the Certificateholders and to the Depositor Depositor, that as of the Closing Date or as of such date specifically provided herein:
(i) The Master Servicer is a corporation duly organized, validly existing and in good standing under the laws of the State of New York Jersey and is duly authorized and qualified to transact any and all business contemplated by this Agreement to be conducted by the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to service the Mortgage Loans in accordance with the terms of this Agreement;
(ii) The Master Servicer has the full corporate power and authority to service each Mortgage Loan, and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary corporate action on the part of the Master Servicer the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties heretoDepositor and the Trustee, constitutes a legal, valid and binding obligation of the Master Servicer, enforceable against the Master Servicer in accordance with its terms, except to the extent that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ rights generally and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought;
(iii) The execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunder, the consummation of any other of the transactions herein contemplated, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Master Servicer and will not (A) result in a breach of any term or provision of the charter or by-laws of the Master Servicer or (B) conflict with, result in a breach, violation or acceleration of, or result in a default under, the terms of any other material agreement or instrument to which the Master Servicer is a party or by which it may be bound, or any statute, order or regulation applicable to the Master Servicer of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Master Servicer; and the Master Servicer 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 body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects or, to the Master Servicer’s knowledge, would in the future materially and adversely affect, (x) the ability of the Master Servicer to perform its obligations under this Agreement or (y) the business, operations, financial condition, properties or assets of the Master Servicer taken as a whole;
(iv) The Master Servicer is an approved seller/servicer for Fxxxxx Mxx or Fxxxxxx Mac in good standing and is a HUD approved mortgagee pursuant to Section 203 of the National Housing Act;
(v) No litigation is pending against the Master Servicer that would materially and adversely affect the execution, delivery or enforceability of this Agreement or the ability of the Master Servicer to service the Mortgage Loans or to perform any of its other obligations hereunder in accordance with the terms hereof;
(vi) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the consummation of the transactions contemplated by this Agreement, except for such consents, approvals, authorizations or orders, if any, that have been obtained prior to the Closing Date;; and
(vii) The Master Servicer covenants that its computer and other systems used in servicing the Mortgage Loans operate in a manner such that the Master Servicer can service the Mortgage Loans in accordance with the terms of this Agreement; and
(viii) The Master Servicer (or a Sub-Servicer servicing the Mortgage Loans on its behalf) is a member of MERS in good standing, and will comply in all material respects with the rules and procedures of MERS in connection with the servicing of the Mortgage Loans that are registered with MERS. It is understood and agreed that the representations, warranties and covenants set forth in this Section 2.05 2.04 shall survive delivery of the Mortgage Files to the Trustee or to a Custodian on its behalf and shall inure to the benefit of the Trustee, the Trust Administrator, the Depositor and the Certificateholders. Upon discovery by any of the Depositor, the Master Servicer, the Trust Administrator Servicer or the Trustee of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any Mortgage Loan or the interests therein of the Certificateholders, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the Trustee. Subject to Section 7.01, the obligation of the Master Servicer set forth in Section 2.03(c) to cure breaches shall constitute the sole remedies against the Master Servicer available to the Certificateholders, the Depositor, the Trust Administrator Depositor or the Trustee on behalf of the Certificateholders respecting a breach of the representations, warranties and covenants contained in this Section 2.052.04.
Appears in 11 contracts
Samples: Pooling and Servicing Agreement (PHHMC Series 2007-4 Trust), Pooling and Servicing Agreement (PHHMC Series 2007-6 Trust), Pooling and Servicing Agreement (PHHMC Series 2007-5 Trust)
Representations, Warranties and Covenants of the Master Servicer. The Master Servicer hereby represents, warrants makes the following representations and covenants warranties to the Trust Administrator Depositor, the Securities Administrator, the NIMS Insurer and the Trustee, for the benefit of each of the Trustee, the Trust Administrator, the Certificateholders and to the Depositor that as of the Closing Date or as of such date specifically provided hereinDate:
(i) The Master Servicer is a corporation national banking association duly organized, chartered and validly existing and in good standing under the laws of the State United States of New York America and has all licenses necessary to carry on its business as now being conducted and is duly authorized licensed, qualified and qualified in good standing in each of the states where a Mortgaged Property securing a Mortgage Loan is located if the laws of such state require licensing or qualification in order to transact any and all conduct business contemplated by this Agreement to be of the type conducted by the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to service the Mortgage Loans in accordance with the terms of this Agreement;
(ii) Servicer. The Master Servicer has the full corporate power and authority to service each Mortgage Loan, execute and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary corporate action on the part of the Master Servicer to perform in accordance herewith; the execution, delivery and performance of this Agreement (including all instruments of transfer to be delivered pursuant to this Agreement; ) by the Master Servicer and this the consummation of the transactions contemplated hereby have been duly and validly authorized. This Agreement, assuming the due authorization, execution and delivery thereof by the other parties hereto, constitutes a legalevidences the valid, valid binding and binding enforceable obligation of the Master Servicer, enforceable against subject to applicable law except as enforceability may be limited by (A) bankruptcy, insolvency, liquidation, receivership, moratorium, reorganization or other similar laws affecting the enforcement of the rights of creditors and (B) general principles of equity, whether enforcement is sought in a proceeding in equity or at law. All requisite corporate action has been taken by the Master Servicer to make this Agreement valid and binding upon the Master Servicer in accordance with its terms.
(ii) No consent, except approval, authorization or order is required for the transactions contemplated by this Agreement from any court, governmental agency or body, or federal or state regulatory authority having jurisdiction over the Master Servicer is required or, if required, such consent, approval, authorization or order has been or will, prior to the extent that (a) the enforceability thereof may Closing Date, be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ rights generally and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought;obtained.
(iii) The execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunder, the consummation of any other of the transactions herein contemplated, and the fulfillment of or compliance with the terms hereof contemplated by this Agreement are in the ordinary course of business of the Master Servicer and will not (A) result in a the breach of any term or provision of the charter or by-laws of the Master Servicer or (B) conflict with, result in a breach, violation the breach of any term or acceleration provision of, or conflict with or constitute a default under or result in a default the acceleration of any obligation under, the terms of any other material agreement, indenture or loan or credit agreement or other instrument to which the Master Servicer or its property is a party or by which it may be boundsubject, or result in the violation of any statutelaw, order rule, regulation, order, judgment or regulation applicable decree to which the Master Servicer of any courtor its property is subject.
(iv) There is no action, regulatory bodysuit, administrative agency proceeding or governmental body having jurisdiction over the Master Servicer; and the Master Servicer 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 body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects investigation pending or, to the Master Servicer’s knowledge, would in the future materially and adversely affect, (x) the ability best knowledge of the Master Servicer, threatened against the Master Servicer to perform its obligations under this Agreement which, either individually or (y) in the aggregate, would result in any material adverse change in the business, operations, financial condition, properties or assets of the Master Servicer taken as a whole;
(iv) The Master Servicer is an approved seller/servicer for Fxxxxx Mxx Servicer, or Fxxxxxx Mac in good standing and is a HUD approved mortgagee pursuant to Section 203 any material impairment of the National Housing Act;
(v) No litigation is pending against right or ability of the Master Servicer that to carry on its business substantially as now conducted or which would materially and adversely affect draw into question the execution, delivery or enforceability validity of this Agreement or the Mortgage Loans or of any action taken or to be taken in connection with the obligations of the Master Servicer contemplated herein, or which would materially impair the ability of the Master Servicer to service the Mortgage Loans or to perform any of its other obligations hereunder in accordance with the terms hereof;
(vi) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the consummation of the transactions contemplated by this Agreement, except for such consents, approvals, authorizations or orders, if any, that have been obtained prior to the Closing Date;
(vii) The Master Servicer covenants that its computer and other systems used in servicing the Mortgage Loans operate in a manner such that the Master Servicer can service the Mortgage Loans in accordance with under the terms of this Agreement; and
(viii) . The Master Servicer (or a Sub-Servicer servicing the Mortgage Loans on its behalf) is a member of MERS in good standing, representations and will comply in all material respects with the rules and procedures of MERS in connection with the servicing of the Mortgage Loans that are registered with MERS. It is understood and agreed that the representations, warranties and covenants set forth in made pursuant to this Section 2.05 2.03 shall survive delivery of the respective Mortgage Files to the Trustee or to a Custodian on its the Trustee's behalf and shall inure to the benefit of the Trustee, the Trust Administrator, the Depositor and the Certificateholders. Upon discovery by any of the Depositor, the Master Servicer, the Trust Administrator or the Trustee of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any Mortgage Loan or the interests therein of the Certificateholders, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the Trustee. Subject to Section 7.01, the obligation of the Master Servicer set forth in Section 2.03(c) to cure breaches shall constitute the sole remedies against the Master Servicer available to the Certificateholders, the Depositor, the Trust Administrator or the Trustee on behalf of the Certificateholders respecting a breach of the representations, warranties and covenants contained in this Section 2.05.
Appears in 9 contracts
Samples: Pooling and Servicing Agreement (Banc of America Funding 2007-1 Trust), Pooling and Servicing Agreement (Banc of America Funding 2007-4 Trust), Pooling and Servicing Agreement (Banc of America Funding 2007-B Trust)
Representations, Warranties and Covenants of the Master Servicer. (a) The Master Servicer hereby represents, warrants makes the following representations and covenants warranties to the Trust Depositor, the Securities Administrator and the Trustee, for the benefit of each of the Trustee, the Trust Administrator, the Certificateholders and to the Depositor that as of the Closing Date or as of such date specifically provided hereinDate:
(i) The Master Servicer is a corporation national banking association duly organized, chartered and validly existing and in good standing under the laws of the State United States of New York America and has all licenses necessary to carry on its business as now being conducted and is duly authorized licensed, qualified and qualified in good standing in each of the states where a Mortgaged Property securing a Mortgage Loan is located if the laws of such state require licensing or qualification in order to transact any and all conduct business contemplated by this Agreement to be of the type conducted by the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to service the Mortgage Loans in accordance with the terms of this Agreement;
(ii) Servicer. The Master Servicer has the full corporate power and authority to service each Mortgage Loan, execute and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary corporate action on the part of the Master Servicer to perform in accordance herewith; the execution, delivery and performance of this Agreement (including all instruments of transfer to be delivered pursuant to this Agreement; ) by the Master Servicer and this the consummation of the transactions contemplated hereby have been duly and validly authorized. This Agreement, assuming the due authorization, execution and delivery thereof by the other parties hereto, constitutes a legalevidences the valid, valid binding and binding enforceable obligation of the Master Servicer, enforceable against subject to applicable law except as enforceability may be limited by (A) bankruptcy, insolvency, liquidation, receivership, moratorium, reorganization or other similar laws affecting the enforcement of the rights of creditors and (B) general principles of equity, whether enforcement is sought in a proceeding in equity or at law. All requisite corporate action has been taken by the Master Servicer to make this Agreement valid and binding upon the Master Servicer in accordance with its terms.
(ii) No consent, except approval, authorization or order is required for the transactions contemplated by this Agreement from any court, governmental agency or body, or federal or state regulatory authority having jurisdiction over the Master Servicer is required or, if required, such consent, approval, authorization or order has been or will, prior to the extent that (a) the enforceability thereof may Closing Date, be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ rights generally and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought;obtained.
(iii) The execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunder, the consummation of any other of the transactions herein contemplated, and the fulfillment of or compliance with the terms hereof contemplated by this Agreement are in the ordinary course of business of the Master Servicer and will not (A) result in a the breach of any term or provision of the charter or by-laws of the Master Servicer or (B) conflict with, result in a breach, violation the breach of any term or acceleration provision of, or conflict with or constitute a default under or result in a default the acceleration of any obligation under, the terms of any other material agreement, indenture or loan or credit agreement or other instrument to which the Master Servicer or its property is a party or by which it may be boundsubject, or result in the violation of any statutelaw, order rule, regulation, order, judgment or regulation applicable decree to which the Master Servicer of any courtor its property is subject.
(iv) There is no action, regulatory bodysuit, administrative agency proceeding or governmental body having jurisdiction over the Master Servicer; and the Master Servicer 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 body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects investigation pending or, to the Master Servicer’s knowledge, would in the future materially and adversely affect, (x) the ability best knowledge of the Master Servicer, threatened against the Master Servicer to perform its obligations under this Agreement which, either individually or (y) in the aggregate, would result in any material adverse change in the business, operations, financial condition, properties or assets of the Master Servicer taken as a whole;
(iv) The Master Servicer is an approved seller/servicer for Fxxxxx Mxx Servicer, or Fxxxxxx Mac in good standing and is a HUD approved mortgagee pursuant to Section 203 any material impairment of the National Housing Act;
(v) No litigation is pending against right or ability of the Master Servicer that to carry on its business substantially as now conducted or which would materially and adversely affect draw into question the execution, delivery or enforceability validity of this Agreement or the Mortgage Loans or of any action taken or to be taken in connection with the obligations of the Master Servicer contemplated herein, or which would materially impair the ability of the Master Servicer to service the Mortgage Loans or to perform any of its other obligations hereunder in accordance with the terms hereof;
(vi) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the consummation of the transactions contemplated by this Agreement, except for such consents, approvals, authorizations or orders, if any, that have been obtained prior to the Closing Date;
(vii) The Master Servicer covenants that its computer and other systems used in servicing the Mortgage Loans operate in a manner such that the Master Servicer can service the Mortgage Loans in accordance with under the terms of this Agreement; and
(viii) . The Master Servicer (or a Sub-Servicer servicing the Mortgage Loans on its behalf) is a member of MERS in good standing, representations and will comply in all material respects with the rules and procedures of MERS in connection with the servicing of the Mortgage Loans that are registered with MERS. It is understood and agreed that the representations, warranties and covenants set forth in made pursuant to this Section 2.05 2.03 shall survive delivery of the respective Mortgage Files to the Trustee or to a Custodian on its behalf and shall inure to for the benefit of the Trustee, the Trust Administrator, the Depositor and the Certificateholders. Upon discovery by any of the Depositor, the Master Servicer, the Trust Administrator or the Trustee of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any Mortgage Loan or the interests therein of the Certificateholders, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the Trustee. Subject to Section 7.01, the obligation of the Master Servicer set forth in Section 2.03(c) to cure breaches shall constitute the sole remedies against the Master Servicer available to the Certificateholders, the Depositor, the Trust Administrator or the Trustee on behalf of the Certificateholders respecting a breach of the representations, warranties and covenants contained in this Section 2.05.
Appears in 8 contracts
Samples: Pooling and Servicing Agreement (Banc of America Funding Corp. 2005-2 Trust), Pooling and Servicing Agreement (Banc of America Funding Corp. 2005-6 Trust), Pooling and Servicing Agreement (Banc of America Funding Corp. 2005-4 Trust)
Representations, Warranties and Covenants of the Master Servicer. The Master Servicer hereby represents, warrants and covenants to the Trust Administrator and the Trustee, for the benefit of each of the Trustee, the Trust Administrator, the Certificateholders and to the Depositor that as of the Closing Date or as of such date specifically provided herein:
(i) The Master Servicer is a corporation duly organized, validly existing and in good standing under the laws of the State of New York and is duly authorized and qualified to transact any and all business contemplated by this Agreement to be conducted by the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to service the Mortgage Loans in accordance with the terms of this Agreement;
(ii) The Master Servicer has the full corporate power and authority to service each Mortgage Loan, and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary corporate action on the part of the Master Servicer the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties hereto, constitutes a legal, valid and binding obligation of the Master Servicer, enforceable against the Master Servicer in accordance with its terms, except to the extent that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ rights generally and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought;
(iii) The execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunder, the consummation of any other of the transactions herein contemplated, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Master Servicer and will not (A) result in a breach of any term or provision of the charter or by-laws of the Master Servicer or (B) conflict with, result in a breach, violation or acceleration of, or result in a default under, the terms of any other material agreement or instrument to which the Master Servicer is a party or by which it may be bound, or any statute, order or regulation applicable to the Master Servicer of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Master Servicer; and the Master Servicer 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 body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects or, to the Master Servicer’s knowledge, would in the future materially and adversely affect, (x) the ability of the Master Servicer to perform its obligations under this Agreement or (y) the business, operations, financial condition, properties or assets of the Master Servicer taken as a whole;
(iv) The Master Servicer is an approved seller/servicer for Fxxxxx Mxx Xxxxxx Xxx or Fxxxxxx Xxxxxxx Mac in good standing and is a HUD approved mortgagee pursuant to Section 203 of the National Housing Act;
(v) No litigation is pending against the Master Servicer that would materially and adversely affect the execution, delivery or enforceability of this Agreement or the ability of the Master Servicer to service the Mortgage Loans or to perform any of its other obligations hereunder in accordance with the terms hereof;
(vi) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the consummation of the transactions contemplated by this Agreement, except for such consents, approvals, authorizations or orders, if any, that have been obtained prior to the Closing Date;
(vii) The Master Servicer covenants that its computer and other systems used in servicing the Mortgage Loans operate in a manner such that the Master Servicer can service the Mortgage Loans in accordance with the terms of this Agreement; and
(viii) The Master Servicer (or a Sub-Servicer servicing the Mortgage Loans on its behalf) is a member of MERS in good standing, and will comply in all material respects with the rules and procedures of MERS in connection with the servicing of the Mortgage Loans that are registered with MERS. It is understood and agreed that the representations, warranties and covenants set forth in this Section 2.05 shall survive delivery of the Mortgage Files to the Trustee or to a the Custodian on its behalf and shall inure to the benefit of the Trustee, the Trust Administrator, the Depositor and the Certificateholders. Upon discovery by any of the Depositor, the Master Servicer, the Trust Administrator or the Trustee of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any Mortgage Loan or the interests therein of the Certificateholders, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the Trustee. Subject to Section 7.01, the obligation of the Master Servicer set forth in Section 2.03(c) to cure breaches shall constitute the sole remedies against the Master Servicer available to the Certificateholders, the Depositor, the Trust Administrator or the Trustee on behalf of the Certificateholders respecting a breach of the representations, warranties and covenants contained in this Section 2.05.
Appears in 6 contracts
Samples: Pooling and Servicing Agreement (Citigroup Mortgage Loan Trust Inc. 2005-4), Pooling and Servicing Agreement (Citigroup Mortgage Loan Trust Inc., Series 2005-5), Pooling and Servicing Agreement (Citigroup Mortgage Loan Trust Inc., Series 2005-5)
Representations, Warranties and Covenants of the Master Servicer. The Master Servicer hereby represents, warrants and covenants to the Trust Administrator and the Trustee, for the benefit of each of the Trustee, the Trust Administrator, the Certificateholders and to the Depositor that as of the Closing Date or as of such date specifically provided herein:
(i) The Master Servicer is a corporation duly organized, validly existing and in good standing under the laws of the State of New York Delaware and is duly authorized and qualified to transact any and all business contemplated by this Agreement to be conducted by the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to service the Mortgage Loans in accordance with the terms of this Agreement;
(ii) The Master Servicer has the full corporate power and authority to service each Mortgage Loan, and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary corporate action on the part of the Master Servicer the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties heretoDepositor and the Trustee, constitutes a legal, valid and binding obligation of the Master Servicer, enforceable against the Master Servicer in accordance with its terms, except to the extent that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ ' rights generally and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought;
(iii) The execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunder, the consummation of any other of the transactions herein contemplated, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Master Servicer and will not (A) result in a breach of any term or provision of the charter or by-laws of the Master Servicer or (B) conflict with, result in a breach, violation or acceleration of, or result in a default under, the terms of any other material agreement or instrument to which the Master Servicer is a party or by which it may be bound, or any statute, order or regulation applicable to the Master Servicer of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Master Servicer; and the Master Servicer 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 body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects or, to the Master Servicer’s 's knowledge, would in the future materially and adversely affect, (x) the ability of the Master Servicer to perform its obligations under this Agreement or (y) the business, operations, financial condition, properties or assets of the Master Servicer taken as a whole;
(iv) The Master Servicer is an approved seller/servicer for Fxxxxx Fannie Mae or Freddie Mxx or Fxxxxxx Mac in good standing and xx gxxx staxxxxx xnd is a HUD approved mortgagee pursuant to Section 203 and Section 211 of the National Housing Act;
(v) No Except as disclosed in the Prospectus Supplement, no litigation is pending against the Master Servicer that would materially and adversely affect the execution, delivery or enforceability of this Agreement or the ability of the Master Servicer to service the Mortgage Loans or to perform any of its other obligations hereunder in accordance with the terms hereof;
(vi) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the consummation of the transactions contemplated by this Agreement, except for such consents, approvals, authorizations or orders, if any, that have been obtained prior to the Closing Date;
(vii) The Master Servicer covenants that its computer information set forth in the Prepayment Charge Schedule attached hereto as Schedule 2 (including the prepayment charge summary attached thereto) is complete, true and other systems used correct in servicing all material respects at the Mortgage Loans operate in a manner date or dates respecting which such that the Master Servicer can service the Mortgage Loans information is furnished and each Prepayment Charge is permissible and enforceable in accordance with its terms (except to the terms of this Agreement; andextent that (i) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally and (ii) the collectability thereof may be limited due to acceleration in connection with a foreclosure or other involuntary payment;
(viii) The Master Servicer will not waive any Prepayment Charge or part of a Prepayment Charge unless, (i) the enforceability thereof shall have been limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally or a Sub-Servicer servicing (ii) the Mortgage Loans on its behalf) is a member of MERS in good standing, and will comply in all material respects with the rules and procedures of MERS collectability thereof shall have been limited due to acceleration in connection with a foreclosure or other involuntary payment or (iii) in the Master Servicer's reasonable judgment as described in Section 3.01 hereof, (x) such waiver relates to a default or a reasonably foreseeable default, (y) such waiver would maximize recovery of total proceeds taking into account the value of such Prepayment Charge and related Mortgage Loan and (z) doing so is standard and customary in servicing of the similar Mortgage Loans (including any waiver of a Prepayment Charge in connection with a refinancing of a Mortgage Loan that are registered is related to a default or a reasonably foreseeable default). In no event will the Master Servicer waive a Prepayment Charge in connection with MERS. It a refinancing of a Mortgage Loan that is understood and agreed that the representations, warranties and covenants not related to a default or a reasonably foreseeable default;
(ix) The information set forth in this Section 2.05 shall survive delivery of the Mortgage Files "monthly tape" provided to the Trustee or any of its affiliates is true and correct in all material respects;
(x) With respect to a Custodian on its behalf and shall inure to each Mortgage Loan, the benefit Assignment is in recordable form; (except that the name of the Trustee, the Trust Administrator, the Depositor assignee and the Certificateholders. Upon discovery by any of the Depositor, the Master Servicer, the Trust Administrator or the Trustee of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any recording information with respect to such Mortgage Loan or is blank) and each Mortgage Loan was originated in the interests therein of the Certificateholders, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the Trustee. Subject to Section 7.01, the obligation name of the Master Servicer set forth in Section 2.03(c) to cure breaches shall constitute the sole remedies against the Master Servicer available to the Certificateholders, the Depositor, the Trust Administrator or the Trustee on behalf of the Certificateholders respecting a breach of the representations, warranties and covenants contained in this Section 2.05.an affiliate thereof; and
Appears in 6 contracts
Samples: Pooling and Servicing Agreement (Ameriquest Mort Sec Inc Asst Back Pas THR Certs Ser 2003-9), Pooling and Servicing Agreement (Ameriquest Mortgage Sec Inc Asst Back Ps THR Cert Ser 2003-2), Pooling and Servicing Agreement (Ameriquest Mortgage Securities Inc Asset-Backed Pass-Through Certificates Series 2004-R4)
Representations, Warranties and Covenants of the Master Servicer. The Master Servicer hereby represents, warrants and covenants to the Trust Administrator and the Trustee, for the benefit of each of the Trustee, the Trust Administrator, Trustee and the Certificateholders and to the Depositor that as of the Closing Date or as of such date specifically provided herein:
(i) The Master Servicer is a corporation duly organized, validly existing existing, and in good standing under the laws of the State jurisdiction of New York its formation and has all licenses necessary to carry on its business as now being conducted and is duly authorized licensed, qualified and qualified in good standing in the states where the Mortgaged Property is located if the laws of such state require licensing or qualification in order to transact any and all conduct business contemplated by this Agreement to be of the type conducted by the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent necessary to ensure its ability to enforce the enforceability or validity of each Mortgage Loan and to service Loan; the Mortgage Loans in accordance with the terms of this Agreement;
(ii) The Master Servicer has the full corporate power and authority to service each Mortgage Loan, execute and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary corporate action on the part of the Master Servicer to perform in accordance herewith; the execution, delivery and performance of this Agreement; and Agreement (including all instruments of transfer to be delivered pursuant to this Agreement, assuming the due authorization, execution and delivery thereof ) by the other parties heretoMaster Servicer and the consummation of the transactions contemplated hereby have been duly and validly authorized; this Agreement evidences the valid, constitutes a legal, valid binding and binding enforceable obligation of the Master Servicer, enforceable against subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally; and all requisite corporate action has been taken by the Master Servicer to make this Agreement valid and binding upon the Master Servicer in accordance with its terms, except to the extent that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ rights generally and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought;
(iiiii) The execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunder, the consummation of any other of the transactions herein contemplated, and the fulfillment of or compliance with the terms hereof contemplated by this Agreement are in the ordinary course of business of the Master Servicer and will not (A) result in a the breach of any term or provision of the charter or by-laws of the Master Servicer or (B) conflict with, result in a breach, violation the breach of any term or acceleration provision of, or conflict with or constitute a default under or result in a default the acceleration of any obligation under, the terms of any other material agreement, indenture or loan or credit agreement or other instrument to which the Master Servicer or its property is a party or by which it may be boundsubject, or result in the violation of any statutelaw, order rule, regulation, order, judgment or regulation applicable decree to which the Master Servicer or its property is subject;
(iii) The execution and delivery of this Agreement by the Master Servicer and the performance and compliance with its obligations and covenants hereunder do not require the consent or approval of any courtgovernmental authority or, regulatory bodyif such consent or approval is required, administrative agency or governmental body having jurisdiction over it has been obtained;
(iv) This Agreement, and all documents and instruments contemplated hereby which are executed and delivered by the Master Servicer; , constitute and will constitute valid, legal and binding obligations of the Master Servicer, enforceable in accordance with their respective terms, except as the enforcement thereof may be limited by applicable bankruptcy laws and general principles of equity;
(v) [Reserved];
(vi) The Master Servicer does not believe, nor does it have any reason or cause to believe, that it cannot perform each and every covenant contained in this Agreement;
(vii) There is no action, suit, proceeding or investigation pending or, to its knowledge, threatened against the Master Servicer is not a party tothat, bound by, either individually 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 body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects or, to the Master Servicer’s knowledge, would in the future materially and adversely affectaggregate, (xA) the ability of the Master Servicer to perform its obligations under this Agreement or (y) may result in any change in the business, operations, financial condition, properties or assets of the Master Servicer taken as a whole;
(iv) The Master Servicer is an approved seller/servicer for Fxxxxx Mxx that might prohibit or Fxxxxxx Mac in good standing and is a HUD approved mortgagee pursuant to Section 203 of the National Housing Act;
(v) No litigation is pending against the Master Servicer that would materially and adversely affect the executionperformance by such Master Servicer of its obligations under, delivery or validity or enforceability of, this Agreement, or (B) may result in any material impairment of the right or ability of the Master Servicer to carry on its business substantially as now conducted, or (C) may result in any material liability on the part of the Master Servicer, or (D) would draw into question the validity or enforceability of this Agreement or of any action taken or to be taken in connection with the obligations of the Master Servicer contemplated herein, or (E) would otherwise be likely to impair materially the ability of the Master Servicer to service the Mortgage Loans or to perform any of its other obligations hereunder in accordance with under the terms hereofof this Agreement;
(viviii) No consentNeither this Agreement nor any information, approvalcertificate of an officer, authorization statement furnished in writing or order of any court or governmental agency or body is required for report delivered to the execution, delivery and performance Trustee by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the consummation of in connection with the transactions contemplated by this Agreement, except for such consents, approvals, authorizations or orders, if any, that have been obtained prior to the Closing Datehereby contains any untrue statement of a material fact;
(viiix) The Master Servicer covenants that its computer and other systems used in servicing the Mortgage Loans operate in a manner such that the Master Servicer can service the Mortgage Loans in accordance with the terms of this Agreement;
(x) The information set forth in the Prepayment Charge Schedule (including the Prepayment Charge Summary attached thereto) is complete, true and correct in all material respects on the date or dates when such information is furnished and each Prepayment Charge is permissible and enforceable in accordance with its terms (except to the extent that the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws affecting creditor's rights generally or the collectibility thereof may be limited due to acceleration in connection with a foreclosure) under applicable federal, state and local law;
(xi) The Master Servicer will not waive any Prepayment Charge unless it is waived in accordance with the standard set forth in Section 3.01; and
(viiixii) The Master Servicer (or a Sub-Servicer servicing the Mortgage Loans on its behalf) is a member of MERS in good standinghas accurately and fully reported, and will comply in all material respects with the rules continue to accurately and procedures of MERS in connection with the servicing fully report, its borrower credit files to each of the Mortgage Loans that are registered with MERScredit repositories in a timely manner. It is understood and agreed that the representations, warranties and covenants set forth in this Section 2.05 shall survive delivery of the Mortgage Files to the Trustee or to a Custodian on its behalf and shall inure to the benefit of the Trustee, the Trust Administrator, the Depositor and the Certificateholders. Upon discovery by any of the Depositor, the NIMS Insurer, the Master Servicer, the Trust Administrator Originator or the Trustee of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any Mortgage Loan Loan, Prepayment Charge or the interests therein of the Certificateholders, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the Master Servicer, the Originator, the NIMS Insurer and the Trustee. Subject to Section 7.01Notwithstanding the foregoing, within 90 days of the obligation earlier of discovery by the Master Servicer or receipt of notice by the Master Servicer of the breach of the representation or covenant of the Master Servicer (in its capacity as Originator) set forth in Section 2.03(cSections 2.05(x) to cure breaches shall constitute or 2.05(xi) above which materially and adversely affects the sole remedies against interests of the Holders of the Class P Certificates in any Prepayment Charge, the Master Servicer shall remedy such breach as follows: (a) if the representation made by the Master Servicer (in its capacity as Originator) in Section 2.05(x) above is breached and a Principal Prepayment has occurred in the applicable Prepayment Period or if a change of law subsequent to the Closing Date limits the enforceability of a Prepayment Charge (other than in the circumstances provided in Section 2.05(x) above), the Master Servicer (in its capacity as Originator) must pay the amount of the scheduled Prepayment Charge, for the benefit of the Holders of the Class P Certificates, by depositing such amount into the Collection Account, net of any amount previously collected by the Master Servicer and paid by the Master Servicer, for the benefit of the Holders of the Class P Certificates, in respect of such Prepayment Charge; and (b) if any of the covenants made by the Master Servicer in Section 2.05(xi) above is breached, the Master Servicer must pay the amount of such waived Prepayment Charge, for the benefit of the Holders of the Class P Certificates, by depositing such amount into the Collection Account. The foregoing shall not, however, limit any remedies available to the Certificateholders, the Depositor, the Trust Administrator Depositor or the Trustee on behalf of the Certificateholders Certificateholders, pursuant to the Mortgage Loan Purchase Agreement signed by the Master Servicer in its capacity as Originator, respecting a breach of the representations, warranties and covenants of the Master Servicer in its capacity as Originator contained in this Section 2.05the Mortgage Loan Purchase Agreement.
Appears in 6 contracts
Samples: Pooling and Servicing Agreement (Option One Mortgage Loan Trust 2005-2), Pooling and Servicing Agreement (Option One Mortgage Loan Trust 2005-5, Asset-Backed Certificates, Series 2005-5), Pooling and Servicing Agreement (Option One Mortgage Loan Trust 2004-3)
Representations, Warranties and Covenants of the Master Servicer. The Master Servicer hereby represents, warrants and covenants to the Trust Administrator and the Trustee, for the benefit of each of the Trustee, the Trust Administrator, the Certificateholders and to the Depositor that as of the Closing Date or as of such date specifically provided herein:
(i) The Master Servicer is a corporation duly organized, validly existing and in good standing under the laws of the State of New York Delaware and is duly authorized and qualified to transact any and all business contemplated by this Agreement to be conducted by the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to service the Mortgage Loans in accordance with the terms of this Agreement;
(ii) The Master Servicer has the full corporate power and authority to service each Mortgage Loan, and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary corporate action on the part of the Master Servicer the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties heretoDepositor and the Trustee, constitutes a legal, valid and binding obligation of the Master Servicer, enforceable against the Master Servicer in accordance with its terms, except to the extent that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ rights generally and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought;
(iii) The execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunder, the consummation of any other of the transactions herein contemplated, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Master Servicer and will not (A) result in a breach of any term or provision of the charter or by-laws of the Master Servicer or (B) conflict with, result in a breach, violation or acceleration of, or result in a default under, the terms of any other material agreement or instrument to which the Master Servicer is a party or by which it may be bound, or any statute, order or regulation applicable to the Master Servicer of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Master Servicer; and the Master Servicer 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 body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects or, to the Master Servicer’s knowledge, would in the future materially and adversely affect, (x) the ability of the Master Servicer to perform its obligations under this Agreement or (y) the business, operations, financial condition, properties or assets of the Master Servicer taken as a whole;
(iv) The Master Servicer is an approved seller/servicer for Fxxxxx Mxx Xxxxxx Xxx or Fxxxxxx Xxxxxxx Mac in good standing and is a HUD approved mortgagee pursuant to Section 203 and Section 211 of the National Housing Act;
(v) No Except as disclosed in the Prospectus Supplement, no litigation is pending against the Master Servicer that would materially and adversely affect the execution, delivery or enforceability of this Agreement or the ability of the Master Servicer to service the Mortgage Loans or to perform any of its other obligations hereunder in accordance with the terms hereof;
(vi) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the consummation of the transactions contemplated by this Agreement, except for such consents, approvals, authorizations or orders, if any, that have been obtained prior to the Closing Date;
(vii) The Master Servicer covenants that its computer information set forth in the Prepayment Charge Schedule attached hereto as Schedule 2 (including the prepayment charge summary attached thereto) is complete, true and other systems used correct in servicing all material respects at the Mortgage Loans operate in a manner date or dates respecting which such that the Master Servicer can service the Mortgage Loans information is furnished and each Prepayment Charge is permissible and enforceable in accordance with its terms (except to the terms of this Agreement; andextent that (i) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ rights generally and (ii) the collectability thereof may be limited due to acceleration in connection with a foreclosure or other involuntary payment;
(viii) The Master Servicer shall not waive any Prepayment Charge or part of a Prepayment Charge unless, (i) the enforceability thereof shall have been limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ rights generally or (ii) the collectability thereof shall have been limited due to acceleration in connection with a foreclosure or other involuntary payment or (iii) in the Master Servicer’s reasonable judgment as described in Section 3.01 hereof, (x) such waiver relates to a default or a Sub-Servicer reasonably foreseeable default, (y) such waiver would maximize recovery of total proceeds taking into account the value of such Prepayment Charge and related Mortgage Loan and (z) doing so is standard and customary in servicing the similar Mortgage Loans on (including any waiver of a Prepayment Charge in connection with a refinancing of a Mortgage Loan that is related to a default or a reasonably foreseeable default). In no event shall the Master Servicer waive a Prepayment Charge in connection with a refinancing of a Mortgage Loan that is not related to a default or a reasonably foreseeable default;
(ix) The information set forth in the “monthly tape” provided to the Trustee or any of its behalf) affiliates is a member of MERS in good standing, true and will comply correct in all material respects respects;
(x) With respect to each Mortgage Loan, the Assignment is in recordable form; (except that the name of the assignee and the recording information with respect to such Mortgage Loan is blank) and each Mortgage Loan was originated in the name of the Master Servicer or an affiliate thereof;
(xi) The Master Servicer has fully furnished and shall continue to fully furnish, in accordance with the rules Fair Credit Reporting Act and procedures of MERS in connection with its implementing regulations, accurate and complete information (e.g., favorable and unfavorable) on its borrower credit files to Equifax, Experian and Trans Union Credit Information Company or their successors on a monthly basis; and
(xii) The Master Servicer shall transmit full-file credit reporting data for each Mortgage Loan pursuant to Xxxxxx Mae Guide Announcement 95-19 and for each Mortgage Loan, the servicing Master Servicer shall report one of the Mortgage Loans that are registered with MERSfollowing statuses each month as follows: new origination, current, delinquent (30-, 60-, 90-days, etc.), foreclosed, or charged-off. It is understood and agreed that the representations, warranties and covenants set forth in this Section 2.05 shall survive delivery of the Mortgage Files to the Trustee or to a Custodian on its behalf Custodian, as the case may be, and shall inure to the benefit of the Trustee, the Trust Administrator, the Depositor and the Certificateholders. Upon discovery by any of the Depositor, the Master ServicerNIMS Insurer, the Trust Administrator Master Servicer or the Trustee of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any Mortgage Loan Loan, Prepayment Charge or the interests therein of the Certificateholders, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the NIMS Insurer and the Trustee. Subject to Section 7.01, the obligation of the Master Servicer set forth in Section 2.03(c2.03(b) to cure breaches (or in the case of the representations, warranties and covenants set forth in Section 2.05(vii) and Section 2.05(viii) above, to otherwise remedy such breaches pursuant to Section 2.03(b)) shall constitute the sole remedies against the Master Servicer available to the Certificateholders, the Depositor, the Trust Administrator Depositor or the Trustee on behalf of the Certificateholders respecting a breach of the representations, warranties and covenants contained in this Section 2.05. The preceding sentence shall not, however, limit any remedies available to the Certificateholders, the Depositor or the Trustee on behalf of the Certificateholders (other than in the case of the representations, warranties and covenants set forth in Section 2.05(vii) and Section 2.05(viii) above) pursuant to the Mortgage Loan Purchase Agreement signed by the Master Servicer in its capacity as Seller, respecting a breach of the representations, warranties and covenants of the Master Servicer in its capacity as Seller contained in the Mortgage Loan Purchase Agreement.
Appears in 5 contracts
Samples: Pooling and Servicing Agreement (Argent Securities Inc., Asset-Backed Pass-Through Certificates, Series 2005-W2), Pooling and Servicing Agreement (Ameriquest Mortgage Securities Inc., Asset-Backed Pass-Through Certificates, Series 2005-R5), Pooling and Servicing Agreement (Ameriquest Mortgage Securities Inc., Asset-Backed Pass-Through Certificates, Series 2005-R6)
Representations, Warranties and Covenants of the Master Servicer. (a) The Master Servicer hereby represents, represents and warrants and covenants to the Trust Administrator and the Trustee, for its own benefit and the benefit of each of the TrusteeCertificateholders, the Trust Administrator, the Certificateholders and to the Depositor that Depositor, the Special Servicer, the Operating Advisor and the Certificate Administrator, as of the Closing Date or as of such date specifically provided hereinDate, that:
(i) The Master Servicer is a corporation national banking association, duly organized, validly existing and in good standing under the laws of the State United States of New York America, and is duly authorized and qualified to transact any and all business contemplated by this Agreement to be conducted by the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, the jurisdiction in which each Mortgaged Property is located to the extent necessary to ensure perform its ability to enforce each Mortgage Loan and to service the Mortgage Loans in accordance with the terms of obligations under this Agreement;
(ii) The execution and delivery of this Agreement by the Master Servicer, and the performance and compliance with the terms of this Agreement by the Master Servicer, do not violate the Master Servicer’s organizational documents or constitute a default (or an event that, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other material instrument to which it is a party or that is applicable to it or any of its assets, in each case, which does or is likely to materially and adversely affect either the ability of the Master Servicer to perform its obligations under this Agreement or the financial condition of the Master Servicer;
(iii) The Master Servicer has the full corporate power and authority to service each Mortgage Loan, and to execute, deliver and perform, and to enter into and consummate the all transactions to be performed by it as contemplated by this Agreement and Agreement, has duly authorized by all necessary corporate action on the part of the Master Servicer 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 legalvalid, valid legal and binding obligation of the Master Servicer, enforceable against the Master Servicer in accordance with its termsthe terms hereof, except subject to the extent that (aA) the enforceability thereof may be limited by applicable bankruptcy, receivership, insolvency, moratoriumliquidation, receivership fraudulent transfer, reorganization, moratorium and other similar laws relating to affecting the enforcement of creditors’ (including bank creditors’) rights generally generally, and (bB) the remedy general principles of specific performance and injunctive and other forms equity, regardless of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any whether such enforcement is considered in a proceeding therefor may be broughtin equity or at law;
(iiiv) The Master Servicer is not in violation of, and its execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunder, the consummation of any other of the transactions herein contemplated, and the fulfillment of or its performance and compliance with the terms hereof are in the ordinary course of business of the Master Servicer and will this Agreement do not (A) result in constitute a breach violation of, any law, any order or decree of any term court or provision of the charter or by-laws of the Master Servicer or (B) conflict with, result in a breach, violation or acceleration of, or result in a default under, the terms of any other material agreement or instrument to which the Master Servicer is a party or by which it may be boundarbiter, or any statuteorder, order regulation or regulation applicable to the Master Servicer demand of any courtfederal, state or local governmental or regulatory body, administrative agency or governmental body having jurisdiction over the Master Servicer; and the Master Servicer 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 body, administrative agency or governmental body having jurisdiction over itauthority, which materially and adversely affects orviolation, to in the Master Servicer’s knowledgegood faith and reasonable judgment, would in the future is likely to affect materially and adversely affect, (x) the ability of the Master Servicer to perform its obligations under this Agreement or (y) the business, operations, financial condition, properties or assets condition of the Master Servicer taken as a wholeServicer;
(iv) The Master Servicer is an approved seller/servicer for Fxxxxx Mxx or Fxxxxxx Mac in good standing and is a HUD approved mortgagee pursuant to Section 203 of the National Housing Act;
(vvi) No litigation is pending or, to the best of the Master Servicer’s knowledge, threatened against the Master Servicer that would prohibit the Master Servicer from entering into this Agreement or, in the Master Servicer’s good faith and reasonable judgment, is likely to materially and adversely affect the execution, delivery or enforceability of this Agreement or either the ability of the Master Servicer to service perform its obligations under this Agreement or the Mortgage Loans or to perform any financial condition of its other obligations hereunder in accordance with the terms hereofMaster Servicer;
(vivii) Each officer or employee of the Master Servicer that has responsibilities concerning the servicing and administration of Mortgage Loans is covered by errors and omissions insurance in the amounts and with the coverage required by Section 3.08(c) of this Agreement; and
(viii) No consent, approval, authorization or order of of, or filing or registration with, any state or federal court or governmental agency or body is required for the execution, delivery and performance consummation by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the consummation of the transactions contemplated by this Agreement, except for such those consents, approvals, authorizations or orders, if any, and orders that previously have been obtained prior to the Closing Date;and those filings and registrations that previously have been completed.
(viib) The Master Servicer covenants that its computer representations and other systems used warranties set forth in servicing paragraph (a) above shall survive the Mortgage Loans operate in a manner such that the Master Servicer can service the Mortgage Loans in accordance with the terms execution and delivery of this Agreement; and
(viii) The Master Servicer (or a Sub-Servicer servicing the Mortgage Loans on its behalf) is a member of MERS in good standing, and will comply in all material respects with the rules and procedures of MERS in connection with the servicing of the Mortgage Loans that are registered with MERS. It is understood and agreed that the representations, warranties and covenants set forth in this Section 2.05 shall survive delivery of the Mortgage Files to the Trustee or to a Custodian on its behalf and shall inure to the benefit of the Trustee, the Trust Administrator, the Depositor and the Certificateholders. Upon discovery by any of the Depositor, the Master Servicer, the Trust Administrator Special Servicer or a Responsible Officer of the Trustee or the Trustee Certificate Administrator (or upon written notice thereof from any Certificateholder) of a breach of any of the foregoing representations, representations and warranties and covenants set forth in this Section which materially and adversely affects the value of any Mortgage Loan or the interests therein of the Certificateholders, the Master Servicer, the Special Servicer or the Trustee in any Mortgage Loan, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the Trustee. Subject other parties hereto, each Certifying Certificateholder and, prior to Section 7.01the occurrence and continuance of a Consultation Termination Event, the obligation of the Master Servicer set forth in Section 2.03(c) to cure breaches shall constitute the sole remedies against the Master Servicer available to the Certificateholders, the Depositor, the Trust Administrator or the Trustee on behalf of the Certificateholders respecting a breach of the representations, warranties and covenants contained in this Section 2.05Controlling Class Representative.
Appears in 5 contracts
Samples: Pooling and Servicing Agreement (GS Mortgage Securities Trust 2013-Gcj14), Pooling and Servicing Agreement (GS Mortgage Securities Trust 2013-Gcj12), Pooling and Servicing Agreement (GS Mortgage Securities Trust 2013-Gcj12)
Representations, Warranties and Covenants of the Master Servicer. (a) The Master Servicer hereby represents, warrants makes the following representations and covenants warranties to the Trust Depositor, the Securities Administrator and the Trustee, for the benefit of each of the Trustee, the Trust Administrator, the Certificateholders and to the Depositor that as of the Closing Date or as of such date specifically provided hereinDate:
(i) The Master Servicer is a corporation national banking association duly organized, chartered and validly existing and in good standing under the laws of the State United States of New York America and is duly authorized and qualified to transact any and has all business contemplated by this Agreement to be conducted by the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent licenses necessary to ensure carry on its ability to enforce each Mortgage Loan and to service the Mortgage Loans in accordance with the terms of this Agreement;
(ii) business as now being conducted. The Master Servicer has the full corporate power and authority to service each Mortgage Loan, execute and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary corporate action on the part of the Master Servicer to perform in accordance herewith; the execution, delivery and performance of this Agreement (including all instruments of transfer to be delivered pursuant to this Agreement; ) by the Master Servicer and this the consummation of the transactions contemplated hereby have been duly and validly authorized. This Agreement, assuming the due authorization, execution and delivery thereof by the other parties hereto, constitutes a legalevidences the valid, valid binding and binding enforceable obligation of the Master Servicer, enforceable against subject to applicable law except as enforceability may be limited by (A) bankruptcy, insolvency, liquidation, receivership, moratorium, reorganization or other similar laws affecting the enforcement of the rights of creditors and (B) general principles of equity, whether enforcement is sought in a proceeding in equity or at law. All requisite corporate action has been taken by the Master Servicer to make this Agreement valid and binding upon the Master Servicer in accordance with its terms.
(ii) No consent, except approval, authorization or order is required for the transactions contemplated by this Agreement from any court, governmental agency or body, or federal or state regulatory authority having jurisdiction over the Master Servicer is required or, if required, such consent, approval, authorization or order has been or will, prior to the extent that (a) the enforceability thereof may Closing Date, be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ rights generally and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought;obtained.
(iii) The execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunder, the consummation of any other of the transactions herein contemplated, and the fulfillment of or compliance with the terms hereof contemplated by this Agreement are in the ordinary course of business of the Master Servicer and will not (A) result in a the breach of any term or provision of the charter or by-laws of the Master Servicer or (B) conflict with, result in a breach, violation the breach of any term or acceleration provision of, or conflict with or constitute a default under or result in a default the acceleration of any obligation under, the terms of any other material agreement, indenture or loan or credit agreement or other instrument to which the Master Servicer or its property is a party or by which it may be boundsubject, or result in the violation of any statutelaw, order rule, regulation, order, judgment or regulation applicable decree to which the Master Servicer of any courtor its property is subject.
(iv) There is no action, regulatory bodysuit, administrative agency proceeding or governmental body having jurisdiction over the Master Servicer; and the Master Servicer 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 body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects investigation pending or, to the Master Servicer’s knowledge, would in the future materially and adversely affect, (x) the ability best knowledge of the Master Servicer, threatened against the Master Servicer to perform its obligations under this Agreement which, either individually or (y) in the aggregate, would result in any material adverse change in the business, operations, financial condition, properties or assets of the Master Servicer taken as a whole;
(iv) The Master Servicer is an approved seller/servicer for Fxxxxx Mxx Servicer, or Fxxxxxx Mac in good standing and is a HUD approved mortgagee pursuant to Section 203 any material impairment of the National Housing Act;
(v) No litigation is pending against right or ability of the Master Servicer that to carry on its business substantially as now conducted or which would materially and adversely affect draw into question the execution, delivery or enforceability validity of this Agreement or the Mortgage Loans or of any action taken or to be taken in connection with the obligations of the Master Servicer contemplated herein, or which would materially impair the ability of the Master Servicer to service the Mortgage Loans or to perform any of its other obligations hereunder in accordance with the terms hereof;
(vi) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the consummation of the transactions contemplated by this Agreement, except for such consents, approvals, authorizations or orders, if any, that have been obtained prior to the Closing Date;
(vii) The Master Servicer covenants that its computer and other systems used in servicing the Mortgage Loans operate in a manner such that the Master Servicer can service the Mortgage Loans in accordance with under the terms of this Agreement; and
(viii) . The Master Servicer (or a Sub-Servicer servicing the Mortgage Loans on its behalf) is a member of MERS in good standing, representations and will comply in all material respects with the rules and procedures of MERS in connection with the servicing of the Mortgage Loans that are registered with MERS. It is understood and agreed that the representations, warranties and covenants set forth in made pursuant to this Section 2.05 2.03 shall survive delivery of the respective Mortgage Files to the Trustee or to a Custodian on its behalf and shall inure to for the benefit of the Trustee, the Trust Administrator, the Depositor and the Certificateholders. Upon discovery by any of the Depositor, the Master Servicer, the Trust Administrator or the Trustee of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any Mortgage Loan or the interests therein of the Certificateholders, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the Trustee. Subject to Section 7.01, the obligation of the Master Servicer set forth in Section 2.03(c) to cure breaches shall constitute the sole remedies against the Master Servicer available to the Certificateholders, the Depositor, the Trust Administrator or the Trustee on behalf of the Certificateholders respecting a breach of the representations, warranties and covenants contained in this Section 2.05.
Appears in 4 contracts
Samples: Pooling and Servicing Agreement (Banc of America Funding Corp), Pooling and Servicing Agreement (Banc of America Funding Corp. 2005-E Trust), Pooling and Servicing Agreement (Banc of America Funding 2005-H Trust)
Representations, Warranties and Covenants of the Master Servicer. The Master Servicer hereby represents, warrants and covenants to the Trust Administrator and the Trustee, for the benefit of each of the Trustee, the Trust Administrator, the Certificateholders and to the Depositor that as of the Closing Date or as of such date specifically provided herein:
(i) The Master Servicer is a corporation duly organized, validly existing and in good standing under the laws of the State of New York Delaware and is duly authorized and qualified to transact any and all business contemplated by this Agreement to be conducted by the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to service the Mortgage Loans in accordance with the terms of this Agreement;
(ii) The Master Servicer has the full corporate power and authority to service each Mortgage Loan, and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary corporate action on the part of the Master Servicer the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties heretoDepositor and the Trustee, constitutes a legal, valid and binding obligation of the Master Servicer, enforceable against the Master Servicer in accordance with its terms, except to the extent that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ ' rights generally and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought;
(iii) The execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunder, the consummation of any other of the transactions herein contemplated, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Master Servicer and will shall not (A) result in a breach of any term or provision of the charter or by-laws of the Master Servicer or (B) conflict with, result in a breach, violation or acceleration of, or result in a default under, the terms of any other material agreement or instrument to which the Master Servicer is a party or by which it may be bound, or any statute, order or regulation applicable to the Master Servicer of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Master Servicer; and the Master Servicer 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 body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects or, to the Master Servicer’s 's knowledge, would in the future materially and adversely affect, (x) the ability of the Master Servicer to perform its obligations under this Agreement or (y) the business, operations, financial condition, properties or assets of the Master Servicer taken as a whole;
(iv) The Master Servicer is an approved seller/servicer for Fxxxxx Mxx Fannie Mae or Fxxxxxx Freddie Mac in good standing and is xxxx xtxxxing xxx xx a HUD approved mortgagee pursuant to Section 203 and Section 211 of the National Housing Act;
(v) No Except as disclosed in the Prospectus Supplement, no litigation is pending against the Master Servicer that would materially and adversely affect the execution, delivery or enforceability of this Agreement or the ability of the Master Servicer to service the Mortgage Loans or to perform any of its other obligations hereunder in accordance with the terms hereof;
(vi) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the consummation of the transactions contemplated by this Agreement, except for such consents, approvals, authorizations or orders, if any, that have been obtained prior to the Closing Date;
(vii) The Master Servicer covenants that its computer and other systems used in servicing the Mortgage Loans operate in a manner such that the Master Servicer can service the Mortgage Loans in accordance with the terms of this Agreement; and[Reserved];
(viii) The Master Servicer shall not waive any Prepayment Charge or part of a Prepayment Charge unless, (i) the enforceability thereof shall have been limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally or a Sub-Servicer servicing (ii) the Mortgage Loans on its behalf) is a member of MERS in good standing, and will comply in all material respects with the rules and procedures of MERS collectability thereof shall have been limited due to acceleration in connection with a foreclosure or other involuntary payment or (iii) in the Master Servicer's reasonable judgment as described in Section 3.01 hereof, (x) such waiver relates to a default or a reasonably foreseeable default, (y) such waiver would maximize recovery of total proceeds taking into account the value of such Prepayment Charge and related Mortgage Loan and (z) doing so is standard and customary in servicing of the similar Mortgage Loans (including any waiver of a Prepayment Charge in connection with a refinancing of a Mortgage Loan that are registered is related to a default or a reasonably foreseeable default). In no event shall the Master Servicer waive a Prepayment Charge in connection with MERS. It a refinancing of a Mortgage Loan that is understood and agreed that the representations, warranties and covenants not related to a default or a reasonably foreseeable default;
(ix) The information set forth in this Section 2.05 shall survive delivery of the Mortgage Files "monthly tape" provided to the Trustee or any of its affiliates is true and correct in all material respects;
(x) With respect to a Custodian on its behalf and shall inure to each Mortgage Loan, the benefit Assignment is in recordable form (except that the name of the Trustee, the Trust Administrator, the Depositor assignee and the Certificateholders. Upon discovery by any of the Depositor, the Master Servicer, the Trust Administrator or the Trustee of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any recording information with respect to such Mortgage Loan or the interests therein of the Certificateholders, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the Trustee. Subject to Section 7.01, the obligation of the Master Servicer set forth in Section 2.03(c) to cure breaches shall constitute the sole remedies against the Master Servicer available to the Certificateholders, the Depositor, the Trust Administrator or the Trustee on behalf of the Certificateholders respecting a breach of the representations, warranties and covenants contained in this Section 2.05.is blank);
Appears in 4 contracts
Samples: Pooling and Servicing Agreement (Argent Securities Inc Asst Back Pass THR Certs Ser 20003-W10), Pooling and Servicing Agreement (Argent Securities Inc Asset-Backed Pass-Through Certificates Seires 2004-W8), Pooling and Servicing Agreement (Argent Securities Inc Asset Back Pass THR Certs Ser 2004-W6)
Representations, Warranties and Covenants of the Master Servicer. The Master Servicer hereby represents, warrants and covenants to the Trust Administrator and the Trustee, for the benefit of each of the TrusteeTrustee and the Certificateholders, the Trust Administrator, the Certificateholders and to the Depositor Depositor, that as of the Closing Date or as of such date specifically provided herein:
(i) The Master Servicer is a corporation duly organized, validly existing and in good standing under the laws of the State of New York Jersey and is duly authorized and qualified to transact any and all business contemplated by this Agreement to be conducted by the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to service the Mortgage Loans in accordance with the terms of this Agreement;
(ii) The Master Servicer has the full corporate power and authority to service each Mortgage Loan, and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary corporate action on the part of the Master Servicer the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties heretoDepositor and the Trustee, constitutes a legal, valid and binding obligation of the Master Servicer, enforceable against the Master Servicer in accordance with its terms, except to the extent that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ rights generally and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought;
(iii) The execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunder, the consummation of any other of the transactions herein contemplated, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Master Servicer and will not (A) result in a breach of any term or provision of the charter or by-laws of the Master Servicer or (B) conflict with, result in a breach, violation or acceleration of, or result in a default under, the terms of any other material agreement or instrument to which the Master Servicer is a party or by which it may be bound, or any statute, order or regulation applicable to the Master Servicer of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Master Servicer; and the Master Servicer 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 body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects or, to the Master Servicer’s knowledge, would in the future materially and adversely affect, (x) the ability of the Master Servicer to perform its obligations under this Agreement or (y) the business, operations, financial condition, properties or assets of the Master Servicer taken as a whole;
(iv) The Master Servicer is an approved seller/servicer for Fxxxxx Mxx Xxxxxx Xxx or Fxxxxxx Xxxxxxx Mac in good standing and is a HUD approved mortgagee pursuant to Section 203 of the National Housing Act;
(v) No litigation is pending against the Master Servicer that would materially and adversely affect the execution, delivery or enforceability of this Agreement or the ability of the Master Servicer to service the Mortgage Loans or to perform any of its other obligations hereunder in accordance with the terms hereof;
(vi) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the consummation of the transactions contemplated by this Agreement, except for such consents, approvals, authorizations or orders, if any, that have been obtained prior to the Closing Date;; and
(vii) The Master Servicer covenants that its computer and other systems used in servicing the Mortgage Loans operate in a manner such that the Master Servicer can service the Mortgage Loans in accordance with the terms of this Agreement; and
(viii) The Master Servicer (or a Sub-Servicer servicing the Mortgage Loans on its behalf) is a member of MERS in good standing, and will comply in all material respects with the rules and procedures of MERS in connection with the servicing of the Mortgage Loans that are registered with MERS. It is understood and agreed that the representations, warranties and covenants set forth in this Section 2.05 2.04 shall survive delivery of the Mortgage Files to the Trustee or to a Custodian on its behalf and shall inure to the benefit of the Trustee, the Trust Administrator, the Depositor and the Certificateholders. Upon discovery by any of the Depositor, the Master Servicer, the Trust Administrator Servicer or the Trustee of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any Mortgage Loan or the interests therein of the Certificateholders, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the Trustee. Subject to Section 7.01, the obligation of the Master Servicer set forth in Section 2.03(c) to cure breaches shall constitute the sole remedies against the Master Servicer available to the Certificateholders, the Depositor, the Trust Administrator Depositor or the Trustee on behalf of the Certificateholders respecting a breach of the representations, warranties and covenants contained in this Section 2.052.04.
Appears in 4 contracts
Samples: Pooling and Servicing Agreement (PHHMC Mortgage Pass-Through Certificates, Series 2005-6), Pooling and Servicing Agreement (PHHMC Mortgage Pass-Through Certificates, Series 2005-4), Pooling and Servicing Agreement (PHHMC Mortgage Pass-Through Certificates, Series 2005-3)
Representations, Warranties and Covenants of the Master Servicer. The Master Servicer hereby represents, represents and warrants to and covenants to with the Trust Administrator and the Trustee, for the benefit of each of the Owner Trustee, the Trust AdministratorIndenture Trustee, [the Securities Insurer,] the Noteholders, the Certificateholders Depositor, and to the Depositor Transferor that as of the Closing Date or as of such date specifically provided herein:
(ia) The Master Servicer is a corporation ______________________________ duly organized, validly existing existing, and in good standing under the laws of the State state of New York _________________ and has all licenses necessary to carry on its business as now being conducted and is duly authorized licensed, qualified and qualified in good standing in each state where any property securing the Home Loans is located if the laws of such state require licensing or qualification in order to transact any and all conduct business contemplated by this Agreement to be of the type conducted by the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not required and perform its obligations as Master Servicer hereunder and under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to Servicing Agreement; the extent necessary to ensure its ability to enforce each Mortgage Loan and to service the Mortgage Loans in accordance with the terms of this Agreement;
(ii) The Master Servicer has the full corporate power and authority to service each Mortgage Loan, execute and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary corporate action on under the part of the Master Servicer Servicing Agreement and to perform its obligations in accordance herewith and therewith; the execution, delivery and performance of this Agreement; Agreement and under the Servicing Agreement (including all instruments of transfer to be delivered pursuant to this Agreement, assuming the due authorization, execution and delivery thereof ) by the other parties heretoMaster Servicer and the consummation of the transactions contemplated hereby and thereby have been duly and validly authorized by all necessary action; this Agreement and under the Servicing Agreement evidences the valid, constitutes a legal, valid binding and binding enforceable obligation of the Master Servicer; and all requisite action has been taken by the Master Servicer to make this Agreement valid, binding and enforceable against upon the Master Servicer in accordance with its terms, except subject to and under the extent that (a) Servicing Agreement the enforceability thereof may be limited by effect of bankruptcy, insolvency, moratoriumreorganization, receivership moratorium and other other, similar laws relating to creditors’ or affecting creditor's rights generally and or the application of equitable principles in any proceeding, whether at law or in equity.
(b) All actions, approvals, consents, waivers, exemptions, variances, franchises, orders, permits authorizations, rights and licenses required to be taken, given or obtained, as the remedy of specific performance case may be, by or from any federal, state or other governmental authority or agency, that are necessary in connection with the purchase and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion sale of the court before which any proceeding therefor may be brought;
(iii) The Notes and the execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunderof the documents to which it is a party, have been duly taken, given or obtained, as the case may be, are in full force and effect, are not subject to any pending proceedings or appeals (administrative, judicial or otherwise) and either the time within which any appeal therefrom may be taken or review thereof may be obtained has expired or no review thereof may be obtained or appeal therefrom taken, and are adequate to authorize the consummation of any other of the transactions herein contemplated, contemplated by this Agreement and the fulfillment of or compliance with other documents on the terms hereof are in the ordinary course of business part of the Master Servicer and the performance by the Master Servicer of its obligations as Master Servicer under this Agreement and such other documents to which it is a party.
(c) The consummation of the transaction contemplated by this Agreement and the Servicing Agreement will not (A) result in a the breach of any term terms or provision provisions of the charter certificate of incorporation or by-laws of the Master Servicer or (B) conflict with, result in a breach, violation the breach of any term or acceleration provision of, or conflict with or constitute a default under or result in a default the acceleration for any obligation under, the terms of any material agreement, indenture or loan or credit agreement or other material agreement or instrument to which the Master Servicer or to its property is a party or by which it may be boundsubject, or result in the violation of any statutelaw, order rule, regulation, order, judgment or regulation applicable decree to which the Master Servicer of or its property is subject;
(d) Neither this Agreement nor any court, regulatory body, administrative agency report or governmental body having jurisdiction over other document prepared by the Master ServicerServicer and furnished or to be furnished pursuant to this Agreement or in connection with the transactions contemplated hereby contains any untrue statement of material fact; and the Master Servicer statements set forth in the Prospectus Supplement under the caption "THE MASTER SERVICER" do not contain an untrue statement of a material fact and do not omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(e) There is not a party tono action, bound bysuit, proceeding 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 body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects investigation pending or, to the Master Servicer’s knowledge, would in the future materially and adversely affect, (x) the ability best of the Master Servicer's knowledge, threatened against the Master Servicer to perform its obligations under this Agreement which, either in any one instance or (y) in the aggregate, may result in any material adverse change in the business, operations, financial condition, properties or assets of the Master Servicer or in any material impairment of the right or ability of the Master Servicer to carry on its business substantially as now conducted, or in any material liability on the part of the Master Servicer or which would draw into question the validity of this Agreement, the Servicing Agreement or the Home Loans or of any action taken as a whole;or to be taken in connection with the obligations of the Master Servicer contemplated herein, or which would be likely to impair the ability of the Master Servicer to perform under the terms of this Agreement or the Servicing Agreement.
(ivf) The Master Servicer is an approved seller/servicer for Fxxxxx Mxx not in default with respect to any order or Fxxxxxx Mac in good standing and is a HUD approved mortgagee pursuant to Section 203 decree of the National Housing Act;
(v) No litigation is pending against the Master Servicer any court or any order, regulation or demand of any federal, state, municipal or governmental agency, which default might have consequences that would materially and adversely affect the execution, delivery condition (financial or enforceability of this Agreement other) or the ability operations of the Master Servicer to service or its properties or might have consequences that would adversely affect its performance hereunder or under the Mortgage Loans or to perform any of its other obligations hereunder in accordance with the terms hereof;
(vi) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the consummation of the transactions contemplated by this Servicing Agreement, except for such consents, approvals, authorizations or orders, if any, that have been obtained prior to the Closing Date;
(vii) The Master Servicer covenants that its computer and other systems used in servicing the Mortgage Loans operate in a manner such that the Master Servicer can service the Mortgage Loans in accordance with the terms of this Agreement; and
(viii) The Master Servicer (or a Sub-Servicer servicing the Mortgage Loans on its behalf) is a member of MERS in good standing, and will comply in all material respects with the rules and procedures of MERS in connection with the servicing of the Mortgage Loans that are registered with MERS. It is understood and agreed that the representations, warranties and covenants set forth in this Section 2.05 3.03 shall survive delivery of the Mortgage respective Home Loan Files to the Indenture Trustee or to a Custodian on its behalf and shall inure to the benefit of the TrusteeDepositor, the Trust AdministratorNoteholders, the Depositor Owner Trustee[, the Securities Insurer], and the CertificateholdersIndenture Trustee. Upon discovery by any of the Transferor, the Depositor, the Master ServicerIndenture Trustee[, the Trust Administrator Securities Insurer] or the Owner Trustee of a breach of any of the foregoing representations, warranties and covenants which that materially and adversely affects the value of any Mortgage Home Loan or the interests therein of the Certificateholderssuch Person therein, the party discovering such breach shall give prompt written notice (but in no event later than two _______ Business Days following such discovery) to the Trustee. Subject to Section 7.01, the obligation of the Master Servicer set forth in Section 2.03(c) to cure breaches shall constitute the sole remedies against the Master Servicer available to the Certificateholders, the Depositor, the Trust Administrator or the Trustee on behalf of the Certificateholders respecting a breach of the representations, warranties and covenants contained in this Section 2.05other parties.
Appears in 4 contracts
Samples: Sale and Servicing Agreement (Bcap LLC), Sale and Servicing Agreement (Bcap LLC), Sale and Servicing Agreement (Painewebber Mortgage Acceptance Corporation Iv)
Representations, Warranties and Covenants of the Master Servicer. (a) The Master Servicer hereby represents, represents and warrants and covenants to the Trust Administrator and the Trustee, for its own benefit and the benefit of each of the Trustee, the Trust Administrator, the Certificateholders and the Companion Loan Holders, and to the Depositor that Depositor, the Special Servicer, the Operating Advisor and the Certificate Administrator, as of the Closing Date or as of such date specifically provided hereinDate, that:
(i) The Master Servicer is a corporation duly organized, validly existing and in good standing as a national banking association under the laws of the State United States of New York America, and is duly authorized and qualified to transact any and all business contemplated by this Agreement to be conducted by the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, the jurisdiction in which each Mortgaged Property is located to the extent necessary to ensure perform its ability to enforce each Mortgage Loan and to service the Mortgage Loans in accordance with the terms of obligations under this Agreement;
(ii) The execution and delivery of this Agreement by the Master Servicer, and the performance and compliance with the terms of this Agreement by the Master Servicer, do not violate the Master Servicer’s organizational documents or constitute a default (or an event that, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other material instrument to which it is a party or that is applicable to it or any of its assets, in each case, which does or is likely to materially and adversely affect either the ability of the Master Servicer to perform its obligations under this Agreement or the financial condition of the Master Servicer;
(iii) The Master Servicer has the full corporate power and authority to service each Mortgage Loan, and to execute, deliver and perform, and to enter into and consummate the all transactions to be performed by it as contemplated by this Agreement and Agreement, has duly authorized by all necessary corporate action on the part of the Master Servicer 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 legalvalid, valid legal and binding obligation of the Master Servicer, enforceable against the Master Servicer in accordance with its termsthe terms hereof, except subject to the extent that (aA) the enforceability thereof may be limited by applicable bankruptcy, receivership, insolvency, moratoriumliquidation, receivership fraudulent transfer, reorganization, moratorium and other similar laws relating to affecting the enforcement of creditors’ (including bank creditors’) rights generally generally, and (bB) the remedy general principles of specific performance and injunctive and other forms equity, regardless of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any whether such enforcement is considered in a proceeding therefor may be broughtin equity or at law;
(iiiv) The Master Servicer is not in violation of, and its execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunder, the consummation of any other of the transactions herein contemplated, and the fulfillment of or its performance and compliance with the terms hereof are in the ordinary course of business of the Master Servicer and will this Agreement do not (A) result in constitute a breach violation of, any law, any order or decree of any term court or provision of the charter or by-laws of the Master Servicer or (B) conflict with, result in a breach, violation or acceleration of, or result in a default under, the terms of any other material agreement or instrument to which the Master Servicer is a party or by which it may be boundarbiter, or any statuteorder, order regulation or regulation applicable to the Master Servicer demand of any courtfederal, state or local governmental or regulatory body, administrative agency or governmental body having jurisdiction over the Master Servicer; and the Master Servicer 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 body, administrative agency or governmental body having jurisdiction over itauthority, which materially and adversely affects orviolation, to in the Master Servicer’s knowledgegood faith and reasonable judgment, would in the future is likely to affect materially and adversely affect, (x) either the ability of the Master Servicer to perform its obligations under this Agreement or (y) the business, operations, financial condition, properties or assets condition of the Master Servicer taken as a wholeServicer;
(iv) The Master Servicer is an approved seller/servicer for Fxxxxx Mxx or Fxxxxxx Mac in good standing and is a HUD approved mortgagee pursuant to Section 203 of the National Housing Act;
(vvi) No litigation is pending or, to the best of the Master Servicer’s knowledge, threatened against the Master Servicer that would prohibit the Master Servicer from entering into this Agreement or, in the Master Servicer’s good faith and reasonable judgment, is likely to materially and adversely affect the execution, delivery or enforceability of this Agreement or either the ability of the Master Servicer to service perform its obligations under this Agreement or the Mortgage Loans or to perform any financial condition of its other obligations hereunder in accordance with the terms hereofMaster Servicer;
(vivii) Each officer or employee of the Master Servicer that has responsibilities concerning the servicing and administration of Mortgage Loans and the Serviced Companion Loans is covered by errors and omissions insurance in the amounts and with the coverage required by Section 3.08(c) of this Agreement or the Master Servicer self-insures for such errors and omissions coverage in compliance with the requirements of Section 3.08(c) of this Agreement; and
(viii) No consent, approval, authorization or order of of, or filing or registration with, any state or federal court or governmental agency or body is required for the execution, delivery and performance consummation by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the consummation of the transactions contemplated by this Agreement, except for such those consents, approvals, authorizations or orders, if any, and orders that previously have been obtained prior to the Closing Date;
(vii) The Master Servicer covenants and those filings and registrations that its computer previously have been completed and other systems used except for consents, approvals, authorizations, orders, filings or registrations which are not required in servicing the Mortgage Loans operate in a manner such that order for the Master Servicer can service the Mortgage Loans in accordance with the terms of to enter into this Agreement; and
Agreement but may be required (viiiand if so required, will be obtained) The Master Servicer (or a Sub-Servicer servicing the Mortgage Loans on its behalf) is a member of MERS in good standing, and will comply in all material respects with the rules and procedures of MERS in connection with the servicing Master Servicer’s subsequent performance of the Mortgage Loans that are registered with MERS. It is understood this Agreement.
(b) The representations and agreed that the representations, warranties and covenants set forth in this Section 2.05 paragraph (a) above shall survive the execution and delivery of the Mortgage Files to the Trustee or to a Custodian on its behalf and shall inure to the benefit of the Trustee, the Trust Administrator, the Depositor and the Certificateholdersthis Agreement. Upon discovery by any of the Depositor, the Master Servicer, the Trust Administrator Special Servicer or a Responsible Officer of the Trustee or the Trustee Certificate Administrator (or upon written notice thereof from any Certificateholder or any Companion Loan Holder) of a breach of any of the foregoing representations, representations and warranties and covenants set forth in this Section which materially and adversely affects the value interests of the Certificateholders or any Companion Loan Holder, the Master Servicer, the Special Servicer or the Trustee in any Mortgage Loan or the interests therein of the CertificateholdersWhole Loan, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the Trustee. Subject other parties hereto, each Certifying Certificateholder and the Companion Loan Holders and, prior to Section 7.01the occurrence and continuance of a Consultation Termination Event, the obligation of the Master Servicer set forth in Section 2.03(c) to cure breaches shall constitute the sole remedies against the Master Servicer available to the Certificateholders, the Depositor, the Trust Administrator or the Trustee on behalf of the Certificateholders respecting a breach of the representations, warranties and covenants contained in this Section 2.05Controlling Class Representative.
Appears in 4 contracts
Samples: Pooling and Servicing Agreement (CSAIL 2015-C3 Commercial Mortgage Trust), Pooling and Servicing Agreement (CSAIL 2015-C2 Commercial Mortgage Trust), Pooling and Servicing Agreement (CSAIL 2015-C1 Commercial Mortgage Trust)
Representations, Warranties and Covenants of the Master Servicer. (a) The Master Servicer hereby represents, warrants and covenants to the Trust Administrator and the Trustee, for the benefit of each of the TrusteeTrustee and the Certificateholders, the Trust Administrator, the Certificateholders and to the Depositor Depositor, that as of the Closing Date or as of such date specifically provided herein:
(i) The Master Servicer is a corporation duly organized, validly existing and in good standing under the laws of the State state of New York and its incorporation, is duly authorized and qualified to transact any and all business contemplated by this Agreement and has all licenses necessary to be carry on its business as now being conducted and is licensed, qualified and in good standing in the states where the Mortgaged Properties are located if the laws of such state require licensing or qualification in order to conduct business of the type conducted by the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification ensure the enforceability or validity of each Mortgage Loan and, in any event, is in compliance with the doing business laws of any such State, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to service the Mortgage Loans in accordance with the terms of this Agreement;
(ii) The Master Servicer has the full corporate power and authority to service each Mortgage Loan, and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary corporate action on the part of the Master Servicer the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties heretoDepositor and the Trustee, constitutes a legal, valid and binding obligation of the Master Servicer, enforceable against the Master Servicer in accordance with its terms, except to the extent that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ rights generally and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought;.
(iii) The execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunder, the consummation by the Master Servicer of any other of the transactions herein contemplated, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Master Servicer and will not (A) result in a breach of any term or provision of the charter or by-laws by‑laws of the Master Servicer or (B) conflict with, result in a breach, violation or acceleration of, or result in a default under, the terms of any other material agreement or instrument to which the Master Servicer is a party or by which it may be bound, or any statute, order or regulation applicable to the Master Servicer of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Master Servicer; and the Master Servicer 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 body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects or, to the Master Servicer’s knowledge, would in the future materially and adversely affect, (x) the ability of the Master Servicer to perform its obligations under this Agreement or (y) the business, operations, financial condition, properties or assets of the Master Servicer taken as a whole;
(iv) The Master Servicer is an approved seller/servicer for Fxxxxx Mxx Xxxxxx Xxx or Fxxxxxx Freddie Mac in good standing and is a HUD approved mortgagee pursuant to Section 203 and Section 211 of the National Housing Act;
(v) No litigation is pending against the Master Servicer that would materially and adversely affect the execution, delivery or enforceability of this Agreement or the ability of the Master Servicer to service the Mortgage Loans or to perform any of its other obligations hereunder in accordance with the terms hereof;
(vi) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the consummation by the Master Servicer of the transactions contemplated by this Agreement, except for such consents, approvals, authorizations or orders, if any, that have been obtained prior to the Closing Date;
(vii) The Master Servicer covenants that information set forth in the Prepayment Charge Schedule is complete, true and correct in all material respects at the date or dates respecting which such information is furnished and each Prepayment Charge is permissible and enforceable in accordance with its computer terms under applicable law upon the Mortgagor’s voluntary principal prepayment (except to the extent that: (1) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other systems used similar laws relating to creditors’ rights generally; or (2) the collectability thereof may be limited due to acceleration in servicing connection with a foreclosure or other involuntary prepayment); provided that the Mortgage Loans operate representation, warranty and covenant contained in a manner such that this clause (vii) is made by the Master Servicer can service the Mortgage Loans only in accordance with the terms of this Agreementits capacity as Seller; and
(viii) The Master Servicer (will not waive any Prepayment Charge or part of a Prepayment Charge unless such waiver is related to a default or a Sub-Servicer reasonably foreseeable default and would maximize recovery of total proceeds taking into account the value of such Prepayment Charge and related Mortgage Loan and doing so is standard and customary in servicing mortgage loans similar to the Mortgage Loans on its behalf) is (including any waiver of a member of MERS in good standing, and will comply in all material respects with the rules and procedures of MERS Prepayment Charge in connection with a refinancing of a Mortgage Loan that is related to a default or a reasonably foreseeable default).
(ix) With respect to each Mortgage Loan, the servicing Master Servicer will furnish, or cause to be furnished, information regarding the borrower credit file related to such Mortgage Loan to credit reporting agencies in compliance with the provisions of the Fair Credit Reporting Act and the applicable implementing regulations. The Master Servicer will transmit full-file credit reporting data for each Mortgage Loans Loan pursuant to Xxxxxx Xxx Guide Announcement 95-19 and that are registered with MERS. for each Mortgage Loan, the Master Servicer agrees it shall report one of the following statuses each month as follows: new origination, current, delinquent (30-, 60-, 90-days, etc.), foreclosed, or charged-off.
(b) It is understood and agreed that the representations, warranties and covenants set forth in this Section 2.05 2.04 shall survive delivery of the Mortgage Files to the Trustee or to a Custodian on its behalf Custodian, as the case may be, and shall inure to the benefit of the Trustee, the Trust Administrator, the Depositor and the Certificateholders. Upon discovery by any of the Depositor, the Master Servicer, the Trust Administrator Servicer or the Trustee of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any Mortgage Loan Loan, Prepayment Charge or the interests therein of the Certificateholders, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the Trusteeother of such parties. Subject to Section 7.01, the The obligation of the Master Servicer set forth in Section 2.03(c) to cure breaches (or, in the case of (a)(vii) or (a)(viii) above, to pay a Master Servicer Prepayment Charge Payment Amount) shall constitute the sole remedies remedy against the Master Servicer available to the Certificateholders, the Depositor, the Trust Administrator NIMS Insurer or the Trustee on behalf of the Certificateholders respecting a breach of the representations, warranties and covenants contained in this Section 2.052.04. The preceding sentence shall not, however, limit any remedies available to the Certificateholders, the Depositor, the NIMS Insurer or the Trustee on behalf of the Certificateholders, (i) pursuant to the Mortgage Loan Purchase Agreement signed by the Master Servicer in its capacity as Seller, respecting a breach of the representations, warranties and covenants of the Master Servicer in its capacity as Seller contained in the Mortgage Loan Purchase Agreement or (ii) pursuant to Section 7.01 hereof.
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (Long Beach Mortgage Loan Trust 2005-3 Asset-Backed Certificates, Series 2005-3), Pooling and Servicing Agreement (Long Beach Mortgage Loan Trust 2005-1, Asset-Backed Certs., Series 2005-1), Pooling and Servicing Agreement (Long Beach Mortgage Loan Trust 2004-6, Asset-Backed Certs., Series 2004-6)
Representations, Warranties and Covenants of the Master Servicer. The Master Servicer hereby represents, warrants and covenants to the Trust Administrator and the Trustee, for the benefit of each of the Trustee, the Trust Administrator, the Certificateholders and to the Depositor that as of the Closing Date or as of such date specifically provided herein:
(i) The Master Servicer is a corporation duly organized, validly existing and in good standing under the laws of the State of New York California and is duly authorized and qualified to transact any and all business contemplated by this Agreement to be conducted by the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to service the Mortgage Loans in accordance with the terms of this Agreement;
(ii) The Master Servicer has the full corporate power and authority to service each Mortgage Loan, conduct its business as presently conducted by it and to execute, deliver and perform, and to enter into and consummate the consummate, all transactions contemplated by this Agreement and Agreement. The Master Servicer has duly authorized by all necessary corporate action on the part of the Master Servicer the execution, delivery and performance of this Agreement; , has duly executed and delivered this Agreement, and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties heretoDepositor, the Trust Administrator and the Trustee, constitutes a legal, valid and binding obligation of the Master Servicer, enforceable against the Master Servicer it in accordance with its terms, terms except to the extent that (a) as the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other reorganization or similar laws relating to affecting the enforcement of creditors’ ' rights generally and (b) the remedy by general principles of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be broughtequity;
(iii) The execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunder, the consummation by the Master Servicer of any other of the transactions herein contemplated, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Master Servicer and will not (A) result in a breach of any term or provision of the charter or by-laws of the Master Servicer or (B) conflict with, result in a breach, violation or acceleration of, or result in a default under, the terms of any other material agreement or instrument to which the Master Servicer is a party or by which it may be bound, or any statute, order or regulation applicable to the Master Servicer of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Master Servicer; and the Master Servicer 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 body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects or, to the Master Servicer’s 's knowledge, would in the future materially and adversely affect, (x) the ability of the Master Servicer to perform its obligations under this Agreement or (y) the business, operations, financial condition, properties or assets of the Master Servicer taken as a whole;
(iv) The Master Servicer is an approved seller/servicer for Fxxxxx Mxx or Fxxxxxx Mac in good standing and is a HUD approved mortgagee pursuant to Section 203 and Section 211 of the National Housing Act. No event has occurred, including but not limited to a change in insurance coverage, that would make the Master Servicer unable to comply with HUD eligibility requirements or that would require notification to HUD;
(v) The Master Servicer does not believe, nor does it have any reason or cause to believe, that it cannot perform each and every covenant made by it and contained in this Agreement;
(vi) With respect to each Mortgage Loan, the Master Servicer, or Sub- Servicer, if any, is in possession of a complete Mortgage File, except for such documents as have been delivered to the Trust Administrator;
(vii) No litigation is pending against the Master Servicer that would materially and adversely affect the execution, delivery or enforceability of this Agreement or the ability of the Master Servicer to service the Mortgage Loans or to perform any of its other obligations hereunder in accordance with the terms hereof;
(viviii) There are no actions or proceedings against, or investigations known to it of, the Master Servicer before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by the Master Servicer of its obligations under, or validity or enforceability of, this Agreement;
(ix) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the consummation by it of the transactions contemplated by this Agreement, except for such consents, approvals, authorizations or orders, if any, that have been obtained prior to the Closing Date;
(viix) The information set forth in the Prepayment Charge Schedule (including the prepayment charge summary attached thereto) is complete, true and correct in all material respects on the date or dates when such information is furnished and each Prepayment Charge is permissible and enforceable in accordance with its terms (except to the extent that the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally or the collectability thereof may be limited due to acceleration in connection with a foreclosure) under applicable state law;
(xi) The Master Servicer covenants that its will not waive any Prepayment Charge unless it is waived in accordance with the standard set forth in Section 3.01; and
(xii) The Master Servicer's computer and other systems used in servicing the Mortgage Loans mortgage loans will be modified and maintained to operate in a manner such that at all times, including on and after January 1, 2000, (i) the Master Servicer can service the Mortgage Loans in accordance with the terms of this Agreement; and
Agreement if necessary and (viiiii) The the Master Servicer can operate its business in the same manner as it is operating on the date hereof; provided that the Master Servicer's ability to meet the requirements of this representation may be limited in circumstances where it relies (or a Sub-Servicer servicing the Mortgage Loans after reasonable due diligence in inquiring into and obtaining reasonable compliance representations) on its behalf) is a member of MERS in good standing, and will comply in all material respects third party systems which are incompatible with the rules and procedures of MERS in connection with the servicing those of the Mortgage Loans that are registered with MERSMaster Servicer on or after January 1, 2000. It is understood and agreed that the representations, warranties and covenants set forth in this Section 2.05 shall survive delivery of the Mortgage Files to the Trustee or to a Custodian on its behalf Trust Administrator and shall inure to the benefit of the TrusteeTrust Administrator, the Trust AdministratorTrustee, the Depositor and the Certificateholders. Upon discovery by any of the Depositor, the Master Servicer, the Trust Administrator or the Trustee of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any Mortgage Loan Loan, Prepayment Charge or the interests therein of the Certificateholders, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the Trust Administrator and the Trustee. Subject to Section 7.01, unless such breach shall not be susceptible of cure within 90 days, the obligation of the Master Servicer set forth in Section 2.03(c) to cure breaches shall constitute the sole remedies remedy against the Master Servicer available to the Certificateholders, the Depositor, Depositor or the Trust Administrator or and the Trustee on behalf of the Certificateholders respecting a breach of the representations, warranties and covenants contained in this Section 2.05. Notwithstanding the foregoing, within 90 days of the earlier of discovery by the Master Servicer or receipt of notice by the Master Servicer of the breach of the representation or covenant of the Master Servicer set forth in Sections 2.05(x) or 2.05(xi) above which materially and adversely affects the interests of the Holders of the Class P Certificates in any Prepayment Charge, the Master Servicer shall remedy such breach as follows: (a) if the representation made by the Master Servicer in Section 2.05(x) above is breached and a Principal Prepayment has occurred in the applicable Prepayment Period, the Master Servicer must pay the amount of the scheduled Prepayment Charge, for the benefit of the holder of the Class P Certificate, by depositing such amount into the Collection Account, net of any amount previously collected by the Master Servicer or paid by the Master Servicer, for the benefit of the Holders of the Class P Certificates, in respect of such Prepayment Charge; and (b) if any of the covenants made by the Master Servicer in Section 2.05(xi) above is breached, the Master Servicer must pay the amount of such waived Prepayment Charge, for the benefit of the holders of the Class P Certificates, by depositing such amount into the Collection Account. The foregoing shall not, however, limit any remedies available to the Certificateholders, the Depositor, the Trust Administrator or the Trustee on behalf of the Certificateholders, pursuant to the Mortgage Loan Purchase Agreement signed by the Master Servicer in its capacity as Originator, respecting a breach of the representations, warranties and covenants of the Master Servicer in its capacity as Originator contained in the Mortgage Loan Purchase Agreement.
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (Salomon Brothers Mort Sec Vii Inc Fl Rte Cert Se 1999-Nc4), Pooling and Servicing Agreement (Salomon Brothers Mort Sec Vii Inc Fl Rt Cer Se 1999-Nc5), Pooling and Servicing Agreement (Salomon Bros Mort Sec Vii Inc Fl Rte Pas THR Ce Se 1999 Nc3)
Representations, Warranties and Covenants of the Master Servicer. The Master Servicer hereby represents, warrants and covenants to the Trust Administrator and the Trustee, for the benefit of each of the Trustee, the Trust Administrator, Trustee and the Certificateholders and to the Depositor that as of the Closing Date or as of such date specifically provided herein:
(i) The Master Servicer is a corporation duly organized, validly existing and in good standing under the laws of the State of New York Delaware and is duly authorized and qualified to transact any and all business contemplated by this Agreement to be conducted by the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to service the Mortgage Loans in accordance with the terms of this Agreement;
(ii) The Master Servicer has the full corporate power and authority to service each Mortgage Loan, and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary corporate action on the part of the Master Servicer the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties heretoDepositor and the Trustee, constitutes a legal, valid and binding obligation of the Master Servicer, enforceable against the Master Servicer in accordance with its terms, except to the extent that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ rights generally and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought;
(iii) The execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunder, the consummation of any other of the transactions herein contemplated, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Master Servicer and will not (A) result in a breach of any term or provision of the charter or by-laws of the Master Servicer or (B) conflict with, result in a breach, violation or acceleration of, or result in a default under, the terms of any other material agreement or instrument to which the Master Servicer is a party or by which it may be bound, or any statute, order or regulation applicable to the Master Servicer of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Master Servicer; and the Master Servicer 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 body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects or, to the Master Servicer’s knowledge, would in the future materially and adversely affect, (x) the ability of the Master Servicer to perform its obligations under this Agreement or (y) the business, operations, financial condition, properties or assets of the Master Servicer taken as a whole;
(iv) The Master Servicer is an approved seller/servicer for Fxxxxx Mxx Xxxxxx Xxx or Fxxxxxx Xxxxxxx Mac in good standing and is a HUD approved mortgagee pursuant to Section 203 and Section 211 of the National Housing Act;
(v) No Except as disclosed in the Prospectus Supplement, no litigation is pending against the Master Servicer that would materially and adversely affect the execution, delivery or enforceability of this Agreement or the ability of the Master Servicer to service the Mortgage Loans or to perform any of its other obligations hereunder in accordance with the terms hereof;
(vi) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the consummation of the transactions contemplated by this Agreement, except for such consents, approvals, authorizations or orders, if any, that have been obtained prior to the Closing Date;
(vii) The Master Servicer covenants that its computer information set forth in the Prepayment Charge Schedule attached hereto as Schedule 2 (including the prepayment charge summary attached thereto) is complete, true and other systems used correct in servicing all material respects at the Mortgage Loans operate in a manner date or dates respecting which such that the Master Servicer can service the Mortgage Loans information is furnished and each Prepayment Charge is permissible and enforceable in accordance with its terms (except to the terms of this Agreement; andextent that (i) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ rights generally and (ii) the collectability thereof may be limited due to acceleration in connection with a foreclosure or other involuntary payment;
(viii) The Master Servicer shall not waive any Prepayment Charge or part of a Prepayment Charge unless, (i) the enforceability thereof shall have been limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ rights generally or (ii) the collectability thereof shall have been limited due to acceleration in connection with a foreclosure or other involuntary payment or (iii) in the Master Servicer’s reasonable judgment as described in Section 3.01 hereof, (x) such waiver relates to a default or a Sub-Servicer reasonably foreseeable default, (y) such waiver would maximize recovery of total proceeds taking into account the value of such Prepayment Charge and related Mortgage Loan and (z) doing so is standard and customary in servicing the similar Mortgage Loans on (including any waiver of a Prepayment Charge in connection with a refinancing of a Mortgage Loan that is related to a default or a reasonably foreseeable default). In no event shall the Master Servicer waive a Prepayment Charge in connection with a refinancing of a Mortgage Loan that is not related to a default or a reasonably foreseeable default;
(ix) The information set forth in the “monthly tape” provided to the Trustee or any of its behalf) affiliates is a member of MERS in good standing, true and will comply correct in all material respects respects;
(x) With respect to each Mortgage Loan, the Assignment is in recordable form; (except that the name of the assignee and the recording information with respect to such Mortgage Loan is blank) and each Mortgage Loan was originated in the name of the Master Servicer or an affiliate thereof;
(xi) The Master Servicer has fully furnished and shall continue to fully furnish, in accordance with the rules Fair Credit Reporting Act and procedures of MERS in connection with its implementing regulations, accurate and complete information (e.g., favorable and unfavorable) on its borrower credit files to Equifax, Experian and Trans Union Credit Information Company or their successors on a monthly basis; and
(xii) The Master Servicer shall transmit full-file credit reporting data for each Mortgage Loan pursuant to Xxxxxx Mae Guide Announcement 95-19 and for each Mortgage Loan, the servicing Master Servicer shall report one of the Mortgage Loans that are registered with MERSfollowing statuses each month as follows: new origination, current, delinquent (30-, 60-, 90-days, etc.), foreclosed, or charged-off. It is understood and agreed that the representations, warranties and covenants set forth in this Section 2.05 shall survive delivery of the Mortgage Files to the Trustee or to a Custodian on its behalf Custodian, as the case may be, and shall inure to the benefit of the Trustee, the Trust Administrator, the Depositor and the Certificateholders. Upon discovery by any of the Depositor, the Master ServicerNIMS Insurer, the Trust Administrator Master Servicer or the Trustee of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any Mortgage Loan Loan, Prepayment Charge or the interests therein of the Certificateholders, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the NIMS Insurer and the Trustee. Subject to Section 7.01, the obligation of the Master Servicer set forth in Section 2.03(c2.03(b) to cure breaches (or in the case of the representations, warranties and covenants set forth in Section 2.05(vii) and Section 2.05(viii) above, to otherwise remedy such breaches pursuant to Section 2.03(b)) shall constitute the sole remedies against the Master Servicer available to the Certificateholders, the Depositor, the Trust Administrator Depositor or the Trustee on behalf of the Certificateholders respecting a breach of the representations, warranties and covenants contained in this Section 2.05. The preceding sentence shall not, however, limit any remedies available to the Certificateholders, the Depositor or the Trustee on behalf of the Certificateholders (other than in the case of the representations, warranties and covenants set forth in Section 2.05(vii) and Section 2.05(viii) above) pursuant to the Mortgage Loan Purchase Agreement signed by the Master Servicer in its capacity as Seller, respecting a breach of the representations, warranties and covenants of the Master Servicer in its capacity as Seller contained in the Mortgage Loan Purchase Agreement.
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (Argent Securities Inc. Series 2006-W3 Trust), Pooling and Servicing Agreement (Ameriquest Mortgage Securities Trust 2006-R1, Asset-Backed Pass-Through Certificates, Series 2006-R1), Pooling and Servicing Agreement (Argent Securities Inc. Series 2006-W3 Trust)
Representations, Warranties and Covenants of the Master Servicer. The Master Servicer hereby represents, warrants and covenants to the Trust Administrator and the Trustee, for the benefit of each of the Trustee, the Trust Administrator, Trustee and the Certificateholders and to the Depositor that as of the Closing Date or as of such date specifically provided herein:
(i) The Master Servicer is a corporation duly organized, validly existing existing, and in good standing under the laws of the State jurisdiction of New York its formation and has all licenses necessary to carry on its business as now being conducted and is duly authorized licensed, qualified and qualified in good standing in the states where the Mortgaged Property is located if the laws of such state require licensing or qualification in order to transact any and all conduct business contemplated by this Agreement to be of the type conducted by the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent necessary to ensure its ability to enforce the enforceability or validity of each Mortgage Loan and to service Loan; the Mortgage Loans in accordance with the terms of this Agreement;
(ii) The Master Servicer has the full corporate power and authority to service each Mortgage Loan, execute and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary corporate action on the part of the Master Servicer to perform in accordance herewith; the execution, delivery and performance of this Agreement; and Agreement (including all instruments of transfer to be delivered pursuant to this Agreement, assuming the due authorization, execution and delivery thereof ) by the other parties heretoMaster Servicer and the consummation of the transactions contemplated hereby have been duly and validly authorized; this Agreement evidences the valid, constitutes a legal, valid binding and binding enforceable obligation of the Master Servicer, enforceable against subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally; and all requisite corporate action has been taken by the Master Servicer to make this Agreement valid and binding upon the Master Servicer in accordance with its terms, except to the extent that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ rights generally and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought;
(iiiii) The execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunder, the consummation of any other of the transactions herein contemplated, and the fulfillment of or compliance with the terms hereof contemplated by this Agreement are in the ordinary course of business of the Master Servicer and will not (A) result in a the breach of any term or provision of the charter or by-laws of the Master Servicer or (B) conflict with, result in a breach, violation the breach of any term or acceleration provision of, or conflict with or constitute a default under or result in a default the acceleration of any obligation under, the terms of any other material agreement, indenture or loan or credit agreement or other instrument to which the Master Servicer or its property is a party or by which it may be boundsubject, or result in the violation of any statutelaw, order rule, regulation, order, judgment or regulation applicable decree to which the Master Servicer of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Master Servicer; and the Master Servicer its property 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 body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects or, to the Master Servicer’s knowledge, would in the future materially and adversely affect, (x) the ability of the Master Servicer to perform its obligations under this Agreement or (y) the business, operations, financial condition, properties or assets of the Master Servicer taken as a wholesubject;
(iv) The Master Servicer is an approved seller/servicer for Fxxxxx Mxx or Fxxxxxx Mac in good standing and is a HUD approved mortgagee pursuant to Section 203 of the National Housing Act;
(v) No litigation is pending against the Master Servicer that would materially and adversely affect the execution, delivery or enforceability of this Agreement or the ability of the Master Servicer to service the Mortgage Loans or to perform any of its other obligations hereunder in accordance with the terms hereof;
(vi) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the consummation of the transactions contemplated by this Agreement, except for such consents, approvals, authorizations or orders, if any, that have been obtained prior to the Closing Date;
(vii) The Master Servicer covenants that its computer and other systems used in servicing the Mortgage Loans operate in a manner such that the Master Servicer can service the Mortgage Loans in accordance with the terms of this Agreement; and
(viii) The Master Servicer (or a Sub-Servicer servicing the Mortgage Loans on its behalf) is a member of MERS in good standing, and will comply in all material respects with the rules and procedures of MERS in connection with the servicing of the Mortgage Loans that are registered with MERS. It is understood and agreed that the representations, warranties and covenants set forth in this Section 2.05 shall survive delivery of the Mortgage Files to the Trustee or to a Custodian on its behalf and shall inure to the benefit of the Trustee, the Trust Administrator, the Depositor and the Certificateholders. Upon discovery by any of the Depositor, the Master Servicer, the Trust Administrator or the Trustee of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any Mortgage Loan or the interests therein of the Certificateholders, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the Trustee. Subject to Section 7.01, the obligation of the Master Servicer set forth in Section 2.03(c) to cure breaches shall constitute the sole remedies against the Master Servicer available to the Certificateholders, the Depositor, the Trust Administrator or the Trustee on behalf of the Certificateholders respecting a breach of the representations, warranties and covenants contained in this Section 2.05.
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (Option One Mortgage Loan Trust 2006-1 Asset-Backed Certificates, Series 2006-1), Pooling and Servicing Agreement (Option One Mortgage Loan Trust 2005-4, Asset-Backed Certificates, Series 2005-4), Pooling and Servicing Agreement (Option One Mortgage Loan Trust 2005-1)
Representations, Warranties and Covenants of the Master Servicer. The Master Servicer hereby represents, warrants and covenants to the Trust Administrator and the Trustee, for the benefit of each of the Trustee, the Trust Administrator, the Certificateholders and to the Depositor that as of the Closing Date or as of such date specifically provided herein:
(i) The Master Servicer is a corporation duly organized, validly existing and in good standing under the laws of the State of New York ____________ and is duly authorized and qualified to transact any and all business contemplated by this Agreement to be conducted by the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to service the Mortgage Loans in accordance with the terms of this Agreement;
(ii) The Master Servicer has the full corporate power and authority to service each Mortgage Loan, and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary corporate action on the part of the Master Servicer the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties heretoDepositor and the Trustee, constitutes a legal, valid and binding obligation of the Master Servicer, enforceable against the Master Servicer in accordance with its terms, except to the extent that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ ' rights generally and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought;
(iii) The execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunder, the consummation of any other of the transactions herein contemplated, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Master Servicer and will not (A) result in a breach of any term or provision of the charter or by-laws of the Master Servicer or (B) conflict with, result in a breach, violation or acceleration of, or result in a default under, the terms of any other material agreement or instrument to which the Master Servicer is a party or by which it may be bound, or any statute, order or regulation applicable to the Master Servicer of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Master Servicer; and the Master Servicer 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 body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects or, to the Master Servicer’s 's knowledge, would in the future materially and adversely affect, (x) the ability of the Master Servicer to perform its obligations under this Agreement or (y) the business, operations, financial condition, properties or assets of the Master Servicer taken as a whole;
(iv) The Master Servicer is an approved seller/servicer for Fxxxxx Mxx Fannie Mae or Fxxxxxx Freddie Mac in good standing and sxxxxxxg xxd is a HUD x XXX approved mortgagee pursuant to Section 203 and Section 211 of the National Housing Act;
(v) No litigation is pending against the Master Servicer that would materially and adversely affect the execution, delivery or enforceability of this Agreement or the ability of the Master Servicer to service the Mortgage Loans or to perform any of its other obligations hereunder in accordance with the terms hereof;
(vi) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the consummation of the transactions contemplated by 60 this Agreement, except for such consents, approvals, authorizations or orders, if any, that have been obtained prior to the Closing Date;
(vii) The information set forth in the Prepayment Charge Schedule (including the prepayment charge summary attached thereto) is complete, true and correct in all material respects at the date or dates respecting which such information is furnished and each Prepayment Charge is permissible and enforceable in accordance with its terms (except to the extent that (i) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally, (ii) the collectability thereof may be limited due to acceleration in connection with a foreclosure or other involuntary payment and (iii) subsequent changes in applicable law may limit or prohibit the enforceability thereof) under applicable state law;
(viii) The Master Servicer covenants will not waive any Prepayment Charge or part of a Prepayment Charge unless, in the Master Servicer's reasonable judgment as described in Section 3.01 hereof, such waiver would maximize recovery of total proceeds taking into account the value of such Prepayment Charge and related Mortgage Loan and doing so is standard and customary in servicing similar Mortgage Loans (including any waiver of a Prepayment Charge in connection with a refinancing of a Mortgage Loan that its is related to a default or a reasonably foreseeable default) and in no event will it waive a Prepayment Charge in connection with a refinancing of a Mortgage Loan that is not related to a default or a reasonably foreseeable default;
(ix) The Master Servicer's computer and other systems used in servicing the Mortgage Loans mortgage loans will be modified and maintained to operate in a manner such that at all times, including on and after January 1, 2000, (i) the Master Servicer can service the Mortgage Loans in accordance with the terms of this AgreementAgreement if necessary and (ii) the Master Servicer can operate its business in the same manner as it is operating on the date hereof; provided that the Master Servicer's ability to meet the requirements of this representation may be limited in circumstances where it relies (after reasonable due diligence in inquiring into and obtaining reasonable compliance representations) on third party systems which are incompatible with those of the Master Servicer on or after January 1, 2000; and
(viiix) The Master Servicer (information set forth in the "monthly tape" provided to the Trustee or a Sub-Servicer servicing the Mortgage Loans on any of its behalf) affiliates is a member of MERS in good standing, true and will comply correct in all material respects with the rules and procedures of MERS in connection with the servicing of the Mortgage Loans that are registered with MERSrespects. It is understood and agreed that the representations, warranties and covenants set forth in this Section 2.05 shall survive delivery of the Mortgage Files to the Trustee or to a Custodian on its behalf Custodian, as the case may be, and shall inure to the benefit of the Trustee, the Trust Administrator, the Depositor and the Certificateholders. Upon discovery by any of the Depositor, the Master Servicer, the Trust Administrator Servicer or the Trustee of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any Mortgage Loan Loan, Prepayment Charge or the interests therein of the Certificateholders, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the Trustee. Subject to Section 7.01, the obligation of the Master Servicer set forth in Section 2.03(c) to cure breaches shall constitute the sole remedies against the Master Servicer available to the Certificateholders, the Depositor, the Trust Administrator Depositor or the Trustee on behalf of the Certificateholders respecting a breach of the representations, warranties and covenants contained in this Section 2.05. The preceding sentence shall not, however, limit any remedies available to the Certificateholders, the Depositor or the Trustee on behalf of the Certificateholders, pursuant to the Mortgage Loan Purchase Agreement signed by the Master Servicer in its capacity as Seller, respecting a breach of the representations, warranties and covenants of the Master Servicer in its capacity as Seller contained in such Mortgage Loan Purchase Agreement.
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (Argent Securities Inc), Pooling and Servicing Agreement (Boardwalk Mortgage Securities Inc.), Pooling and Servicing Agreement (Park Place Securities, Inc.)
Representations, Warranties and Covenants of the Master Servicer. The Master Servicer hereby represents, warrants and covenants to the Trust Administrator and the Trustee, for the benefit of each of the Trustee, the Trust Administrator, Trustee and the Certificateholders and to the Depositor that as of the Closing Date or as of such date specifically provided herein:
(i) The Master Servicer is a corporation duly organized, validly existing and in good standing under the laws of the State of New York California and has all licenses necessary to carry on its business as now being conducted, except for such licenses, certificates and permits the absence of which, individually or in the aggregate, would not have a material adverse effect on the ability of the Master Servicer to conduct its business as it is presently conducted, and is duly authorized licensed, qualified and qualified in good standing in the states where the Mortgaged Property is located if the laws of such state require licensing or qualification in order to transact any and all conduct business contemplated by this Agreement to be of the type conducted by the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent necessary to ensure its ability to enforce the enforceability or validity of each Mortgage Loan and to service Loan; the Mortgage Loans in accordance with the terms of this Agreement;
(ii) The Master Servicer has the full corporate power and authority to service each Mortgage Loan, execute and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary corporate action on the part of the Master Servicer to perform in accordance herewith; the execution, delivery and performance of this Agreement (including all instruments of transfer to be delivered pursuant to this Agreement) by the Master Servicer and the consummation of the transactions contemplated hereby have been duly and validly authorized; and this Agreement, assuming the due authorization, execution and delivery thereof all requisite corporate action has been taken by the other parties hereto, constitutes a legal, Master Servicer to make this Agreement valid and binding obligation of the Master Servicer, enforceable against upon the Master Servicer in accordance with its terms, except to the extent that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ rights generally and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought;
(iiiii) The execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunder, the consummation of any other of the transactions herein contemplated, and the fulfillment of or compliance with the terms hereof contemplated by this Agreement are in the ordinary course of business of the Master Servicer and will not (A) result in a the breach of any term or provision of the charter articles of incorporation or by-laws of the Master Servicer or (B) conflict with, result in a breach, violation the breach of any term or acceleration provision of, or conflict with or constitute a default under or result in a default the acceleration of any obligation under, the terms of any other material agreement, indenture or loan or credit agreement or other instrument to which the Master Servicer or its property is a party or by which it may be boundsubject, or result in the violation of any statutelaw, order rule, regulation, order, judgment or regulation applicable decree to which the Master Servicer or its property is subject;
(iii) The Master Servicer is an approved seller/servicer of any courtconventional residential mortgage loans for Fannie Mae or Freddie Mac, regulatory bodywith the facilities, administrative agency procedures, and exxxxxxnxxx perxxxxxx necessary for the sound servicing of mortgage loans of the same type as the Mortgage Loans. The Master Servicer is a HUD approved mortgagee pursuant to Section 203 of the National Housing Act and is in good standing to sell mortgage loans to and service mortgage loans for Fannie Mae or governmental body having jurisdiction over Freddie Mac, and no event has occurred, including bxx xxx limited xx x xhange in insurance coverage, which would make the Master Servicer unable to comply with Fannie Mae or Freddie Mac eligibility requirements or which would requixx notifxxxxxxx to either Fannie Mae or Freddie Mac;
(iv) This Agreement, and all doxxxxxxs and inxxxxxxxts contemplated hereby which are executed and delivered by the Master Servicer; , constitute and will constitute valid, legal and binding obligations of the Master Servicer, enforceable in accordance with their respective terms, except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally (whether considered in a proceeding at law or in equity);
(v) The Master Servicer does not believe, nor does it have any reason or cause to believe, that it cannot perform each and every covenant contained in this Agreement;
(vi) There is no action, suit, proceeding or investigation pending or, to its knowledge, threatened against the Master Servicer is not a party tothat, bound by, either individually or in breach or violation of the aggregate, may result in any indenture or other agreement or instrument, or subject to or material adverse change in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects or, to the Master Servicer’s knowledge, would in the future materially and adversely affect, (x) the ability of the Master Servicer to perform its obligations under this Agreement or (y) the business, operations, financial condition, properties or assets of the Master Servicer taken as a whole;
(iv) The Master Servicer is an approved seller/servicer for Fxxxxx Mxx Servicer, or Fxxxxxx Mac in good standing and is a HUD approved mortgagee pursuant to Section 203 any material impairment of the National Housing Act;
(v) No litigation is pending against right or ability of the Master Servicer to carry on its business substantially as now conducted, or in any material liability on the part of the Master Servicer, or that would materially and adversely affect draw into question the execution, delivery validity or enforceability of this Agreement or of any action taken or to be taken in connection with the obligations of the Master Servicer contemplated herein, or that would be likely to impair materially the ability of the Master Servicer to service the Mortgage Loans or to perform any of its other obligations hereunder in accordance with under the terms hereofof this Agreement;
(vivii) No consent, approval, authorization approval or order of any court or governmental agency or body is required for the execution, delivery and performance by the Master Servicer of, of or compliance by the Master Servicer with, with this Agreement or the consummation of the transactions contemplated by this Agreement, except for such consents, approvals, authorizations or and orders, if any, that have been obtained prior to the Closing Date;
(vii) The Master Servicer covenants that its computer and other systems used in servicing the Mortgage Loans operate in a manner such that the Master Servicer can service the Mortgage Loans in accordance with the terms of this Agreementobtained; and
(viii) The No information in this Agreement provided by the Master Servicer (nor any information, certificate of an officer, statement furnished in writing or a Sub-report delivered to the Trustee by the Master Servicer servicing the Mortgage Loans on its behalf) is a member of MERS in good standing, and will comply in all material respects with the rules and procedures of MERS in connection with the servicing transactions contemplated hereby contains or will contain any untrue statement of a material fact or omits or will omit to state a material fact necessary in order to make the statements contained therein, in light of the Mortgage Loans that are registered with MERS. It is understood and agreed that the representationscircumstances under which they were made, warranties and covenants set forth in this Section 2.05 shall survive delivery of the Mortgage Files to the Trustee or to a Custodian on its behalf and shall inure to the benefit of the Trustee, the Trust Administrator, the Depositor and the Certificateholders. Upon discovery by any of the Depositor, the Master Servicer, the Trust Administrator or the Trustee of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any Mortgage Loan or the interests therein of the Certificateholders, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the Trustee. Subject to Section 7.01, the obligation of the Master Servicer set forth in Section 2.03(c) to cure breaches shall constitute the sole remedies against the Master Servicer available to the Certificateholders, the Depositor, the Trust Administrator or the Trustee on behalf of the Certificateholders respecting a breach of the representations, warranties and covenants contained in this Section 2.05not misleading.
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (Abfc Asset-Backed Certificates Series 2004-Opt1), Pooling and Servicing Agreement (Asset Backed Funding Corp. ABFC Asset Backed Certificates Series 2004-Opt3), Pooling and Servicing Agreement (Abfc Asset-Backed Certificates Series 2004-Opt2)
Representations, Warranties and Covenants of the Master Servicer. (a) The Master Servicer hereby represents, warrants and covenants to the Trust Administrator and the Trustee, for the benefit of each of the TrusteeTrustee and the Certificateholders, the Trust Administrator, the Certificateholders and to the Depositor Depositor, that as of the Closing Date or as of such date specifically provided herein:
(i) The Master Servicer is a corporation duly organized, validly existing and in good standing under the laws of the State state of New York and its incorporation, is duly authorized and qualified to transact any and all business contemplated by this Agreement and has all licenses necessary to be carry on its business as now being conducted and is licensed, qualified and in good standing in the states where the Mortgaged Properties are located if the laws of such state require licensing or qualification in order to conduct business of the type conducted by the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification ensure the enforceability or validity of each Mortgage Loan and, in any event, is in compliance with the doing business laws of any such State, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to service the Mortgage Loans in accordance with the terms of this Agreement;
(ii) The Master Servicer has the full corporate power and authority to service each Mortgage Loan, and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary corporate action on the part of the Master Servicer the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties heretoDepositor and the Trustee, constitutes a legal, valid and binding obligation of the Master Servicer, enforceable against the Master Servicer in accordance with its terms, except to the extent that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ ' rights generally and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought;.
(iii) The execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunder, the consummation by the Master Servicer of any other of the transactions herein contemplated, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Master Servicer and will not (A) result in a breach of any term or provision of the charter or by-laws of the Master Servicer or (B) conflict with, result in a breach, violation or acceleration of, or result in a default under, the terms of any other material agreement or instrument to which the Master Servicer is a party or by which it may be bound, or any statute, order or regulation applicable to the Master Servicer of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Master Servicer; and the Master Servicer 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 body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects or, to the Master Servicer’s 's knowledge, would in the future materially and adversely affect, (x) the ability of the Master Servicer to perform its obligations under this Agreement or (y) the business, operations, financial condition, properties or assets of the Master Servicer taken as a whole;
(iv) The Master Servicer is an approved seller/servicer for Fxxxxx Mxx Xxxxxx Xxx or Fxxxxxx Xxxxxxx Mac in good standing and is a HUD approved mortgagee pursuant to Section 203 and Section 211 of the National Housing Act;
(v) No litigation is pending against the Master Servicer that would materially and adversely affect the execution, delivery or enforceability of this Agreement or the ability of the Master Servicer to service the Mortgage Loans or to perform any of its other obligations hereunder in accordance with the terms hereof;
(vi) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the consummation by the Master Servicer of the transactions contemplated by this Agreement, except for such consents, approvals, authorizations or orders, if any, that have been obtained prior to the Closing Date;
(vii) The Master Servicer covenants that information set forth in the Prepayment Charge Schedule is complete, true and correct in all material respects at the date or dates respecting which such information is furnished and each Prepayment Charge is permissible and enforceable in accordance with its computer terms under applicable law upon the Mortgagor's voluntary principal prepayment (except to the extent that: (1) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other systems used similar laws relating to creditors' rights generally; or (2) the collectability thereof may be limited due to acceleration in servicing connection with a foreclosure or other involuntary prepayment); provided that the Mortgage Loans operate representation, warranty and covenant contained in a manner such that this clause (vii) is made by the Master Servicer can service the Mortgage Loans only in accordance with the terms of this Agreementits capacity as Seller; and
(viii) The Master Servicer (will not waive any Prepayment Charge or part of a Prepayment Charge unless such waiver is related to a default or a Sub-Servicer reasonably foreseeable default and would maximize recovery of total proceeds taking into account the value of such Prepayment Charge and related Mortgage Loan and doing so is standard and customary in servicing mortgage loans similar to the Mortgage Loans on its behalf) is (including any waiver of a member of MERS in good standing, and will comply in all material respects with the rules and procedures of MERS Prepayment Charge in connection with a refinancing of a Mortgage Loan that is related to a default or a reasonably foreseeable default).
(ix) With respect to each Mortgage Loan, the servicing Master Servicer will furnish, or cause to be furnished, information regarding the borrower credit file related to such Mortgage Loan to credit reporting agencies in compliance with the provisions of the Fair Credit Reporting Act and the applicable implementing regulations. The Master Servicer will transmit full-file credit reporting data for each Mortgage Loans Loan pursuant to Xxxxxx Mae Guide Announcement 95-19 and that are registered with MERS. for each Mortgage Loan, the Master Servicer agrees it shall report one of the following statuses each month as follows: new origination, current, delinquent (30-, 60-, 90-days, etc.), foreclosed, or charged-off.
(b) It is understood and agreed that the representations, warranties and covenants set forth in this Section 2.05 2.04 shall survive delivery of the Mortgage Files to the Trustee or to a Custodian on its behalf Custodian, as the case may be, and shall inure to the benefit of the Trustee, the Trust Administrator, the Depositor and the Certificateholders. Upon discovery by any of the Depositor, the Master Servicer, the Trust Administrator Servicer or the Trustee of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any Mortgage Loan Loan, Prepayment Charge or the interests therein of the Certificateholders, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the Trusteeother of such parties. Subject to Section 7.01, the The obligation of the Master Servicer set forth in Section 2.03(c) to cure breaches (or, in the case of (a)(vii) or (a)(viii) above, to pay a Master Servicer Prepayment Charge Payment Amount) shall constitute the sole remedies remedy against the Master Servicer available to the Certificateholders, the Depositor, the Trust Administrator NIMS Insurer or the Trustee on behalf of the Certificateholders respecting a breach of the representations, warranties and covenants contained in this Section 2.052.04. The preceding sentence shall not, however, limit any remedies available to the Certificateholders, the Depositor, the NIMS Insurer or the Trustee on behalf of the Certificateholders, (i) pursuant to the Mortgage Loan Purchase Agreement signed by the Master Servicer in its capacity as Seller, respecting a breach of the representations, warranties and covenants of the Master Servicer in its capacity as Seller contained in the Mortgage Loan Purchase Agreement or (ii) pursuant to Section 7.01 hereof.
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (Long Beach Mortgage Loan Trust 2004-3, Asset-Backed Certs., Series 2004-3), Pooling and Servicing Agreement (Long Beach Mortgage Loan Trust 2005-Wl2 Asset-Backed Certificates), Pooling and Servicing Agreement (Long Beach Mortgage Loan Trust 2004-2, Asset-Backed Certificates, Series 2004-2)
Representations, Warranties and Covenants of the Master Servicer. The Master Servicer hereby represents, warrants and covenants to the Trust Administrator and the Trustee, for the benefit of each of the Trustee, the Trust Administrator, the Certificateholders and to the Depositor that as of the Closing Date or as of such date specifically provided herein:
(i) The Master Servicer is a corporation duly organized, validly existing and in good standing under the laws of the State of New York Delaware and is duly authorized and qualified to transact any and all business contemplated by this Agreement to be conducted by the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to service the Mortgage Loans in accordance with the terms of this Agreement;
(ii) The Master Servicer has the full corporate power and authority to service each Mortgage Loan, and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary corporate action on the part of the Master Servicer the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties heretoDepositor and the Trustee, constitutes a legal, valid and binding obligation of the Master Servicer, enforceable against the Master Servicer in accordance with its terms, except to the extent that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ ' rights generally and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought;
(iii) The execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunder, the consummation of any other of the transactions herein contemplated, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Master Servicer and will not (A) result in a breach of any term or provision of the charter or by-laws of the Master Servicer or (B) conflict with, result in a breach, violation or acceleration of, or result in a default under, the terms of any other material agreement or instrument to which the Master Servicer is a party or by which it may be bound, or any statute, order or regulation applicable to the Master Servicer of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Master Servicer; and the Master Servicer 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 body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects or, to the Master Servicer’s 's knowledge, would in the future materially and adversely affect, (x) the ability of the Master Servicer to perform its obligations under this Agreement or (y) the business, operations, financial condition, properties or assets of the Master Servicer taken as a whole;
(iv) The Master Servicer is an approved seller/servicer for Fxxxxx Fannie Mae or Freddie Mxx or Fxxxxxx Mac in good standing and xx gxxx staxxxxx xnd is a HUD approved mortgagee pursuant to Section 203 and Section 211 of the National Housing Act;
(v) No Except as disclosed in the Prospectus Supplement, no litigation is pending against the Master Servicer that would materially and adversely affect the execution, delivery or enforceability of this Agreement or the ability of the Master Servicer to service the Mortgage Loans or to perform any of its other obligations hereunder in accordance with the terms hereof;
(vi) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the consummation of the transactions contemplated by this Agreement, except for such consents, approvals, authorizations or orders, if any, that have been obtained prior to the Closing Date;
(vii) The Master Servicer covenants that its computer information set forth in the Prepayment Charge Schedule attached hereto as Schedule 2 (including the prepayment charge summary attached thereto) is complete, true and other systems used correct in servicing all material respects at the Mortgage Loans operate in a manner date or dates respecting which such that the Master Servicer can service the Mortgage Loans information is furnished and each Prepayment Charge is permissible and enforceable in accordance with its terms (except to the terms of this Agreement; andextent that (i) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally and (ii) the collectability thereof may be limited due to acceleration in connection with a foreclosure or other involuntary payment;
(viii) The Master Servicer will not waive any Prepayment Charge or part of a Prepayment Charge unless, (i) the enforceability thereof shall have been limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally or (ii) the collectability thereof shall have been limited due to acceleration in connection with a foreclosure or other involuntary payment or (iii) in the Master Servicer's reasonable judgment as described in Section 3.01 hereof, (x) such waiver relates to a default or a Sub-Servicer reasonably foreseeable default, (y) such waiver would maximize recovery of total proceeds taking into account the value of such Prepayment Charge and related Mortgage Loan and (z) doing so is standard and customary in servicing the similar Mortgage Loans on (including any waiver of a Prepayment Charge in connection with a refinancing of a Mortgage Loan that is related to a default or a reasonably foreseeable default). In no event will the Master Servicer waive a Prepayment Charge in connection with a refinancing of a Mortgage Loan that is not related to a default or a reasonably foreseeable default;
(ix) The information set forth in the "monthly tape" provided to the Trustee or any of its behalf) affiliates is a member of MERS in good standing, true and will comply correct in all material respects respects;
(x) With respect to each Mortgage Loan, the Assignment is in recordable form; (except that the name of the assignee and the recording information with respect to such Mortgage Loan is blank) and each Mortgage Loan was originated in the name of the Master Servicer or an affiliate thereof; and
(xi) The Master Servicer has fully furnished and will continue to fully furnish, in accordance with the rules Fair Credit Reporting Act and procedures of MERS in connection with the servicing of the Mortgage Loans that are registered with MERSits implementing regulations, accurate and complete information (e.g., favorable and unfavorable) on its borrower credit files to Equifax, Experian and Trans Union Credit Information Company or their successors on a monthly basis. It is understood and agreed that the representations, warranties and covenants set forth in this Section 2.05 shall survive delivery of the Mortgage Files to the Trustee or to a Custodian on its behalf Custodian, as the case may be, and shall inure to the benefit of the Trustee, the Trust Administrator, the Depositor and the Certificateholders. Upon discovery by any of the Depositor, the Master ServicerNIMS Insurer, the Trust Administrator Master Servicer or the Trustee of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any Mortgage Loan Loan, Prepayment Charge or the interests therein of the Certificateholders, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the NIMS Insurer and the Trustee. Subject to Section 7.01, the obligation of the Master Servicer set forth in Section 2.03(c2.03(b) to cure breaches (or in the case of the representations, warranties and covenants set forth in Section 2.05(vii) and Section 2.05(viii) above, to otherwise remedy such breaches pursuant to Section 2.03(b)) shall constitute the sole remedies against the Master Servicer available to the Certificateholders, the Depositor, the Trust Administrator Depositor or the Trustee on behalf of the Certificateholders respecting a breach of the representations, warranties and covenants contained in this Section 2.05. The preceding sentence shall not, however, limit any remedies available to the Certificateholders, the Depositor or the Trustee on behalf of the Certificateholders (other than in the case of the representations, warranties and covenants set forth in Section 2.05(vii) and Section 2.05(viii) above) pursuant to the Mortgage Loan Purchase Agreement signed by the Master Servicer in its capacity as Originator, respecting a breach of the representations, warranties and covenants of the Master Servicer in its capacity as Originator contained in such Mortgage Loan Purchase Agreement.
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (Ameriquest Mort Sec Inc Asset Back Pas THR Certs Ser 2003 5), Pooling and Servicing Agreement (Ameriquest Mortgage Sec Inc Asset/Pass Thru Cert 2003-Ia1), Pooling and Servicing Agreement (Ameriquest Mort Sec Inc Asset Back Pas THR Certs Ser 03 8)
Representations, Warranties and Covenants of the Master Servicer. The Master Servicer hereby represents, warrants and covenants to the Trust Administrator and the Trustee, for the benefit of each of the Trustee, the Trust Administrator, the Certificateholders and to the Depositor that as of the Closing Date or as of such date specifically provided herein:
(i) The Master Servicer is a corporation duly organized, validly existing and in good standing under the laws of the State of New York Delaware and is duly authorized and qualified to transact any and all business contemplated by this Agreement to be conducted by the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to service the Mortgage Loans in accordance with the terms of this Agreement;
(ii) The Master Servicer has the full corporate power and authority to service each Mortgage Loan, and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary corporate action on the part of the Master Servicer the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties heretoDepositor and the Trustee, constitutes a legal, valid and binding obligation of the Master Servicer, enforceable against the Master Servicer in accordance with its terms, except to the extent that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ ' rights generally and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought;
(iii) The execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunder, the consummation of any other of the transactions herein contemplated, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Master Servicer and will not (A) result in a breach of any term or provision of the charter or by-laws of the Master Servicer or (B) conflict with, result in a breach, violation or acceleration of, or result in a default under, the terms of any other material agreement or instrument to which the Master Servicer is a party or by which it may be bound, or any statute, order or regulation applicable to the Master Servicer of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Master Servicer; and the Master Servicer 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 body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects or, to the Master Servicer’s 's knowledge, would in the future materially and adversely affect, (x) the ability of the Master Servicer to perform its obligations under this Agreement or (y) the business, operations, financial condition, properties or assets of the Master Servicer taken as a whole;
(iv) The Master Servicer is an approved seller/servicer for Fxxxxx Mxx Xxxxxx Xxx or Fxxxxxx Xxxxxxx Mac in good standing and is a HUD approved mortgagee pursuant to Section 203 and Section 211 of the National Housing Act;
(v) No Except as disclosed in the Prospectus Supplement, no litigation is pending against the Master Servicer that would materially and adversely affect the execution, delivery or enforceability of this Agreement or the ability of the Master Servicer to service the Mortgage Loans or to perform any of its other obligations hereunder in accordance with the terms hereof;
(vi) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the consummation of the transactions contemplated by this Agreement, except for such consents, approvals, authorizations or orders, if any, that have been obtained prior to the Closing Date;
(vii) The Master Servicer covenants that its computer information set forth in the Prepayment Charge Schedule attached hereto as Schedule 2 (including the prepayment charge summary attached thereto) is complete, true and other systems used correct in servicing all material respects at the Mortgage Loans operate in a manner date or dates respecting which such that the Master Servicer can service the Mortgage Loans information is furnished and each Prepayment Charge is permissible and enforceable in accordance with its terms (except to the terms of this Agreement; andextent that (i) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally and (ii) the collectability thereof may be limited due to acceleration in connection with a foreclosure or other involuntary payment;
(viii) The Master Servicer shall not waive any Prepayment Charge or part of a Prepayment Charge unless, (i) the enforceability thereof shall have been limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally or a Sub-Servicer servicing (ii) the Mortgage Loans on its behalf) is a member of MERS in good standing, and will comply in all material respects with the rules and procedures of MERS collectability thereof shall have been limited due to acceleration in connection with a foreclosure or other involuntary payment or (iii) in the Master Servicer's reasonable judgment as described in Section 3.01 hereof, (x) such waiver relates to a default or a reasonably foreseeable default, (y) such waiver would maximize recovery of total proceeds taking into account the value of such Prepayment Charge and related Mortgage Loan and (z) doing so is standard and customary in servicing of the similar Mortgage Loans (including any waiver of a Prepayment Charge in connection with a refinancing of a Mortgage Loan that are registered is related to a default or a reasonably foreseeable default). In no event shall the Master Servicer waive a Prepayment Charge in connection with MERS. It a refinancing of a Mortgage Loan that is understood and agreed that the representations, warranties and covenants not related to a default or a reasonably foreseeable default;
(ix) The information set forth in this Section 2.05 shall survive delivery of the Mortgage Files "monthly tape" provided to the Trustee or any of its affiliates is true and correct in all material respects;
(x) With respect to a Custodian on its behalf and shall inure to each Mortgage Loan, the benefit Assignment is in recordable form; (except that the name of the Trustee, the Trust Administrator, the Depositor assignee and the Certificateholders. Upon discovery by any of the Depositor, the Master Servicer, the Trust Administrator or the Trustee of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any recording information with respect to such Mortgage Loan or is blank) and each Mortgage Loan was originated in the interests therein of the Certificateholders, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the Trustee. Subject to Section 7.01, the obligation name of the Master Servicer set forth in Section 2.03(c) to cure breaches shall constitute the sole remedies against the Master Servicer available to the Certificateholders, the Depositor, the Trust Administrator or the Trustee on behalf of the Certificateholders respecting a breach of the representations, warranties and covenants contained in this Section 2.05.an affiliate thereof;
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (Ameriquest Mortgage Securities Inc. Series 2005-R1), Pooling and Servicing Agreement (Ameriquest Mortgage Securities Inc. Series 2005-R3), Pooling and Servicing Agreement (Ameriquest Mortgage Securities Inc Asset-Backed Pass-Through Certificates Series 2004-R9)
Representations, Warranties and Covenants of the Master Servicer. The Master Servicer hereby represents, warrants makes the following representations and covenants warranties to the Trust Depositor, the Securities Administrator and the Trustee, for the benefit of each of the Trustee, the Trust Administrator, the Certificateholders and to the Depositor that as of the Closing Date or as of such date specifically provided hereinDate:
(i) The Master Servicer is a corporation duly organized, organized and validly existing and in good standing under the laws of the State of New York and has all licenses necessary to carry on its business as now being conducted and is duly authorized licensed, qualified and qualified in good standing in each of the states where a Mortgaged Property securing a Mortgage Loan is located if the laws of such state require licensing or qualification in order to transact any and all conduct business contemplated by this Agreement to be of the type conducted by the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to service the Mortgage Loans in accordance with the terms of this Agreement;
(ii) Servicer. The Master Servicer has the full corporate power and authority to service each Mortgage Loan, execute and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary corporate action on the part of the Master Servicer to perform in accordance herewith; the execution, delivery and performance of this Agreement (including all instruments of transfer to be delivered pursuant to this Agreement; ) by the Master Servicer and this the consummation of the transactions contemplated hereby have been duly and validly authorized. This Agreement, assuming the due authorization, execution and delivery thereof by the other parties hereto, constitutes a legalevidences the valid, valid binding and binding enforceable obligation of the Master Servicer, enforceable against subject to applicable law except as enforceability may be limited by (A) bankruptcy, insolvency, liquidation, receivership, moratorium, reorganization or other similar laws affecting the enforcement of the rights of creditors and (B) general principles of equity, whether enforcement is sought in a proceeding in equity or at law. All requisite corporate action has been taken by the Master Servicer to make this Agreement valid and binding upon the Master Servicer in accordance with its terms.
(ii) No consent, except approval, authorization or order is required for the transactions contemplated by this Agreement from any court, governmental agency or body, or federal or state regulatory authority having jurisdiction over the Master Servicer is required or, if required, such consent, approval, authorization or order has been or will, prior to the extent that (a) the enforceability thereof may Closing Date, be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ rights generally and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought;obtained.
(iii) The execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunder, the consummation of any other of the transactions herein contemplated, and the fulfillment of or compliance with the terms hereof contemplated by this Agreement are in the ordinary course of business of the Master Servicer and will not (A) result in a the breach of any term or provision of the charter or by-laws of the Master Servicer or (B) conflict with, result in a breach, violation the breach of any term or acceleration provision of, or conflict with or constitute a default under or result in a default the acceleration of any obligation under, the terms of any other material agreement, indenture or loan or credit agreement or other instrument to which the Master Servicer or its property is a party or by which it may be boundsubject, or result in the violation of any statutelaw, order rule, regulation, order, judgment or regulation applicable decree to which the Master Servicer of any courtor its property is subject.
(iv) There is no action, regulatory bodysuit, administrative agency proceeding or governmental body having jurisdiction over the Master Servicer; and the Master Servicer 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 body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects investigation pending or, to the Master Servicer’s knowledge, would in the future materially and adversely affect, (x) the ability best knowledge of the Master Servicer, threatened against the Master Servicer to perform its obligations under this Agreement which, either individually or (y) in the aggregate, would result in any material adverse change in the business, operations, financial condition, properties or assets of the Master Servicer taken as a whole;
(iv) The Master Servicer is an approved seller/servicer for Fxxxxx Mxx Servicer, or Fxxxxxx Mac in good standing and is a HUD approved mortgagee pursuant to Section 203 any material impairment of the National Housing Act;
(v) No litigation is pending against right or ability of the Master Servicer that to carry on its business substantially as now conducted or which would materially and adversely affect draw into question the execution, delivery or enforceability validity of this Agreement or the Mortgage Loans or of any action taken or to be taken in connection with the obligations of the Master Servicer contemplated herein, or which would materially impair the ability of the Master Servicer to service the Mortgage Loans or to perform any of its other obligations hereunder in accordance with the terms hereof;
(vi) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the consummation of the transactions contemplated by this Agreement, except for such consents, approvals, authorizations or orders, if any, that have been obtained prior to the Closing Date;
(vii) The Master Servicer covenants that its computer and other systems used in servicing the Mortgage Loans operate in a manner such that the Master Servicer can service the Mortgage Loans in accordance with under the terms of this Agreement; and
(viii) . The Master Servicer (or a Sub-Servicer servicing the Mortgage Loans on its behalf) is a member of MERS in good standing, representations and will comply in all material respects with the rules and procedures of MERS in connection with the servicing of the Mortgage Loans that are registered with MERS. It is understood and agreed that the representations, warranties and covenants set forth in made pursuant to this Section 2.05 2.03 shall survive delivery of the respective Mortgage Files to the Trustee or to a Custodian on its the Trustee's behalf and shall inure to the benefit of the Trustee, the Trust Administrator, the Depositor and the Certificateholders. Upon discovery by any of the Depositor, the Master Servicer, the Trust Administrator or the Trustee of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any Mortgage Loan or the interests therein of the Certificateholders, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the Trustee. Subject to Section 7.01, the obligation of the Master Servicer set forth in Section 2.03(c) to cure breaches shall constitute the sole remedies against the Master Servicer available to the Certificateholders, the Depositor, the Trust Administrator or the Trustee on behalf of the Certificateholders respecting a breach of the representations, warranties and covenants contained in this Section 2.05.
Appears in 3 contracts
Samples: Pooling and Servicing Agreement, Pooling and Servicing Agreement (Banc of America Funding 2006-6 Trust), Pooling and Servicing Agreement (Banc of America Funding 2006-5 Trust)
Representations, Warranties and Covenants of the Master Servicer. The Master Servicer hereby represents, warrants and covenants to the Trust Administrator and the Trustee, for the benefit of each of the Trustee, the Trust Administrator, the Certificateholders and to the Depositor that as of the Closing Date or as of such date specifically provided herein:
(i) The Master Servicer is a corporation duly organized, validly existing and in good standing under the laws of the State of New York Jersey and is duly authorized and qualified to transact any and all business contemplated by this Agreement to be conducted by the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to service the Mortgage Loans in accordance with the terms of this Agreement;
(ii) The Master Servicer has the full corporate power and authority to service each Mortgage Loan, and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary corporate action on the part of the Master Servicer the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties heretoDepositor and the Trustee, constitutes a legal, valid and binding obligation of the Master Servicer, enforceable against the Master Servicer in accordance with its terms, except to the extent that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ ' rights generally and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought;
(iii) The execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunder, the consummation of any other of the transactions herein contemplated, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Master Servicer and will shall not (A) result in a breach of any term or provision of the charter or by-laws organizational documents of the Master Servicer or (B) conflict with, result in a breach, violation or acceleration of, or result in a default under, the terms of any other material agreement or instrument to which the Master Servicer is a party or by which it may be bound, or any statute, order or regulation applicable to the Master Servicer of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Master Servicer; and the Master Servicer 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 body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects or, to the Master Servicer’s 's knowledge, would in the future materially and adversely affect, (x) the ability of the Master Servicer to perform its obligations under this Agreement or (y) the business, operations, financial condition, properties or assets of the Master Servicer taken as a whole;
(iv) The Master Servicer is an approved seller/servicer for Fxxxxx Mxx Xxxxxx Mae or Fxxxxxx Xxxxxxx Mac in good standing and is a HUD approved mortgagee pursuant to Section 203 and Section 211 of the National Housing Act;
(v) No litigation is pending against the Master Servicer that would materially and adversely affect the execution, delivery or enforceability of this Agreement or the ability of the Master Servicer to service the Mortgage Loans or to perform any of its other obligations hereunder in accordance with the terms hereof;
(vi) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the consummation of the transactions contemplated by this Agreement, except for such consents, approvals, authorizations or orders, if any, that have been obtained prior to the Closing Date;
(vii) The Master Servicer covenants that its computer and other systems used in servicing the Mortgage Loans operate in a manner such that the Master Servicer can service the Mortgage Loans shall furnish, in accordance with the terms of this Agreement; andFair Credit Reporting Act and its implementing regulations, accurate and complete information (e.g., favorable and unfavorable) on its borrower credit files to Equifax, Experian and Trans Union Credit Information company or their successors on a monthly basis;
(viii) The Master Servicer shall not waive any Prepayment Charge or part of a Prepayment Charge unless, (i) the enforceability thereof shall have been limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally or (ii) the collectability thereof shall have been limited due to acceleration in connection with a foreclosure or other involuntary payment or otherwise limited or prohibited by applicable law, (iii) in the Master Servicer's reasonable judgment as described in Section 3.01 hereof, (x) such waiver relates to a default or a Sub-Servicer reasonably foreseeable default, (y) such waiver would maximize recovery of total proceeds taking into account the value of such Prepayment Charge and related Mortgage Loan and (z) doing so is standard and customary in servicing the similar Mortgage Loans on (including any waiver of a Prepayment Charge in connection with a refinancing of a Mortgage Loan that is related to a default or a reasonably foreseeable default) or (iv) the collection of such Prepayment Charge would be considered "predatory" pursuant to written guidance published or issued by any applicable federal, state or local regulatory authority acting in its behalfofficial capacity and having jurisdiction over such matters. In no event shall the Master Servicer waive a Prepayment Charge in connection with a refinancing of a Mortgage Loan that is not related to a default or a reasonably foreseeable default;
(ix) is a member The information set forth in the monthly tape provided to the Trustee or any of MERS in good standing, its Affiliates shall be true and will comply correct in all material respects with respects; and
(x) The Master Servicer shall transmit full-file credit reporting data for each Mortgage Loan pursuant to Xxxxxx Mae Guide Announcement 95-19 and that for each Mortgage Loan, the rules and procedures of MERS in connection with the servicing Master Servicer agrees it shall report one of the Mortgage Loans that are registered with MERSfollowing statuses each month as follows: new origination, current, delinquent (30-, 60-, 90-days, etc.), foreclosed, or charged-off. It is understood and agreed that the representations, warranties and covenants set forth in this Section 2.05 shall survive delivery of the Mortgage Files to the Trustee or to a Custodian on its behalf Custodian, as the case may be, and shall inure to the benefit of the Trustee, the Trust Administrator, the Depositor and the Certificateholders. Upon discovery by any of the Depositor, the Master ServicerNIMS Insurer, the Trust Administrator Master Servicer or the Trustee of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any Mortgage Loan Loan, Prepayment Charge or the interests therein of the Certificateholders, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the NIMS Insurer and the Trustee. Subject to Section 7.01, the obligation of the Master Servicer set forth in Section 2.03(c2.03(b) to cure breaches (or in the case of the representations, warranties and covenants set forth in Section 2.05(vii) and Section 2.05(viii) above, to otherwise remedy such breaches pursuant to Section 2.03(b)) shall constitute the sole remedies against the Master Servicer available to the Certificateholders, the Depositor, the Trust Administrator Depositor or the Trustee on behalf of the Certificateholders respecting a breach of the representations, warranties and covenants contained in this Section 2.05.
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (Park Place Securities, Inc., Asset-Backed Pass-Through Certificates, Series 2005-Whq1), Pooling and Servicing Agreement (Park Place Securities, Inc. Series 2005-Whq2), Pooling and Servicing Agreement (Park Place Securities, Inc. Series 2005-Whq2)
Representations, Warranties and Covenants of the Master Servicer. (a) The Master Servicer hereby represents, represents and warrants and covenants to the Trust Administrator and the Trustee, for the benefit of each of the Trustee, the Trust Administrator, the Certificateholders and to the Depositor that Trustee as of the Closing Date or as of such date specifically provided hereinthat:
(i) The Master Servicer It is a corporation national banking association duly organized, validly existing and in good standing under the laws of the State United States of New York America and is duly authorized and qualified to transact any and all business contemplated by throughout the term of this Agreement to be conducted by will remain a national banking association duly organized, validly existing and in good standing under the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such Statethe United States of America, and has the corporate power and authority to the extent necessary to ensure perform its ability to enforce each Mortgage Loan and to service the Mortgage Loans in accordance with the terms of obligations under this Agreement;
(ii) The Master Servicer has the full corporate power execution and authority to service each Mortgage Loan, and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by delivery of this Agreement and has have been duly authorized by all necessary requisite corporate action on the part of the Master Servicer the execution, delivery and performance of this Agreement; and this action;
(iii) This Agreement, assuming the due authorization, execution execution, and delivery thereof by the other parties hereto, constitutes a will constitute its legal, valid and binding obligation of the Master Servicerobligation, enforceable against the Master Servicer in accordance with its terms, except to the extent that (a) the enforceability thereof only as such enforcement may be limited by bankruptcy, insolvency, moratorium, receivership applicable Debtor Relief Laws and other similar laws relating to creditors’ rights generally and (b) the remedy that certain equitable remedies may not be available regardless of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be broughtwhether enforcement is sought in equity or at law;
(iiiiv) The Its execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunder, the consummation of any other of the transactions herein contemplated, and the fulfillment of or its performance and compliance with the terms hereof are in the ordinary course of business of the Master Servicer and this Agreement will not (A) result in a breach of any term or provision of the violate its charter or by-laws of the Master Servicer or bylaws (B) conflict withto its knowledge, result in violate any law or regulation, or any administrative or judicial decree or order to which it is subject or (C) constitute a breachdefault (or an event which, violation with notice or acceleration oflapse of time, or both, would constitute a default) under, or result in a default underthe breach of, the terms of any other material contract, agreement or other instrument to which the Master Servicer it is a party or by which it may be bound, applicable to it or any statute, order or regulation applicable to the Master Servicer of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Master Servicer; and the Master Servicer 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 body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects or, to the Master Servicer’s knowledge, would in the future materially and adversely affect, (x) the ability of the Master Servicer to perform its obligations under this Agreement or (y) the business, operations, financial condition, properties or assets of the Master Servicer taken as a whole;
(iv) The Master Servicer is an approved seller/servicer for Fxxxxx Mxx or Fxxxxxx Mac in good standing and is a HUD approved mortgagee pursuant to Section 203 of the National Housing Actassets;
(v) No litigation To its best knowledge, after reasonable investigation, it is pending against the Master Servicer not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or governmental agency, which default would reasonably be expected to have consequences that would materially and adversely affect the execution, delivery its financial condition or enforceability of this Agreement operations or the ability of the Master Servicer to service the Mortgage Loans or to perform any of its other obligations hereunder in accordance with the terms hereofperformance hereunder;
(vi) No consentIt does not believe, approvalnor does it have any reason or cause to believe, authorization or order of any court or governmental agency or body is required for the execution, delivery that it cannot perform each and performance by the Master Servicer of, or compliance by the Master Servicer with, every covenant contained in this Agreement or the to be performed by it;
(vii) The consummation of the transactions contemplated by this Agreement, except for such consents, approvals, authorizations or orders, if any, that have been obtained prior to Agreement are in the Closing Date;
(vii) The Master Servicer covenants that ordinary course of its computer and other systems used in servicing the Mortgage Loans operate in a manner such that the Master Servicer can service the Mortgage Loans in accordance with the terms of this Agreementbusiness; and
(viii) The Master Servicer (or a Sub-Servicer servicing the Mortgage Loans on No litigation is pending or, to its behalf) is a member of MERS in good standingbest knowledge, and will comply in all material respects with the rules and procedures of MERS in connection with the servicing of the Mortgage Loans that are registered with MERS. It is understood and agreed that the representationsthreatened against it, warranties and covenants set forth in this Section 2.05 shall survive delivery of the Mortgage Files which could be reasonably expected to the Trustee or to a Custodian on its behalf and shall inure to the benefit of the Trustee, the Trust Administrator, the Depositor and the Certificateholders. Upon discovery by any of the Depositor, the Master Servicer, the Trust Administrator or the Trustee of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any Mortgage Loan affect its entering into this Agreement or the interests therein of the Certificateholders, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the Trustee. Subject to Section 7.01, the obligation of the Master Servicer set forth in Section 2.03(c) to cure breaches shall constitute the sole remedies against the Master Servicer available to the Certificateholders, the Depositor, the Trust Administrator performing its obligations under this Agreement or the Trustee which would have a material adverse effect on behalf of the Certificateholders respecting a breach of the representations, warranties and covenants contained in this Section 2.05its financial condition.
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (Structured Asset Mortgage Investments Inc), Pooling and Servicing Agreement (Bear Stearns Mortgage Securities Inc), Pooling and Servicing Agreement (Structured Asset Mortgage Investments Inc)
Representations, Warranties and Covenants of the Master Servicer. The Master Servicer hereby represents, warrants and covenants to the Trust Administrator and the Trustee, for the benefit of each of the TrusteeTrustee and the Certificateholders, the Trust Administrator, the Certificateholders and to the Depositor Depositor, that as of the Closing Date or as of such date specifically provided herein:
(i) The Master Servicer is a corporation duly organized, validly existing and in good standing under the laws of the State of New York Jersey and is duly authorized and qualified to transact any and all business contemplated by this Agreement to be conducted by the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to service the Mortgage Loans in accordance with the terms of this Agreement;
(ii) The Master Servicer has the full corporate power and authority to service each Mortgage Loan, and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary corporate action on the part of the Master Servicer the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties heretoDepositor and the Trustee, constitutes a legal, valid and binding obligation of the Master Servicer, enforceable against the Master Servicer in accordance with its terms, except to the extent that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ ' rights generally and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought;
(iii) The execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunder, the consummation of any other of the transactions herein contemplated, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Master Servicer and will not (A) result in a breach of any term or provision of the charter or by-laws of the Master Servicer or (B) conflict with, result in a breach, violation or acceleration of, or result in a default under, the terms of any other material agreement or instrument to which the Master Servicer is a party or by which it may be bound, or any statute, order or regulation applicable to the Master Servicer of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Master Servicer; and the Master Servicer 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 body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects or, to the Master Servicer’s 's knowledge, would in the future materially and adversely affect, (x) the ability of the Master Servicer to perform its obligations under this Agreement or (y) the business, operations, financial condition, properties or assets of the Master Servicer taken as a whole;
(iv) The Master Servicer is an approved seller/servicer for Fxxxxx Mxx Xxxxxx Mae or Fxxxxxx Xxxxxxx Mac in good standing and is a HUD approved mortgagee pursuant to Section 203 of the National Housing Act;
(v) No litigation is pending against the Master Servicer that would materially and adversely affect the execution, delivery or enforceability of this Agreement or the ability of the Master Servicer to service the Mortgage Loans or to perform any of its other obligations hereunder in accordance with the terms hereof;
(vi) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the consummation of the transactions contemplated by this Agreement, except for such consents, approvals, authorizations or orders, if any, that have been obtained prior to the Closing Date;; and
(vii) The Master Servicer covenants that its computer and other systems used in servicing the Mortgage Loans operate in a manner such that the Master Servicer can service the Mortgage Loans in accordance with the terms of this Agreement; and
(viii) The Master Servicer (or a Sub-Servicer servicing the Mortgage Loans on its behalf) is a member of MERS in good standing, and will comply in all material respects with the rules and procedures of MERS in connection with the servicing of the Mortgage Loans that are registered with MERS. It is understood and agreed that the representations, warranties and covenants set forth in this Section 2.05 2.04 shall survive delivery of the Mortgage Files to the Trustee or to a Custodian on its behalf and shall inure to the benefit of the Trustee, the Trust Administrator, the Depositor and the Certificateholders. Upon discovery by any of the Depositor, the Master Servicer, the Trust Administrator Servicer or the Trustee of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any Mortgage Loan or the interests therein of the Certificateholders, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the Trustee. Subject to Section 7.01, the obligation of the Master Servicer set forth in Section 2.03(c) to cure breaches shall constitute the sole remedies against the Master Servicer available to the Certificateholders, the Depositor, the Trust Administrator Depositor or the Trustee on behalf of the Certificateholders respecting a breach of the representations, warranties and covenants contained in this Section 2.052.04.
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (PHHMC Mortgage Pass-Through Certificates, Series 2005-2), Pooling and Servicing Agreement (CDMC Mortgage Pass-Through Certificates, Series 2005-1), Pooling and Servicing Agreement (Cendant Mortgage Capital LLC CDMC Mort Pas THR Ce Se 04 3)
Representations, Warranties and Covenants of the Master Servicer. The Master Servicer hereby represents, warrants and covenants to the Trust Administrator and the Trustee, for the benefit of each of the Trustee, the Trust Administrator, the Certificateholders and to the Depositor that as of the Closing Date or as of such date specifically provided herein:
(i) The Master Servicer is a corporation duly organized, validly existing and in good standing under the laws of the State of New York Delaware and is duly authorized and qualified to transact any and all business contemplated by this Agreement to be conducted by the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to service the Mortgage Loans in accordance with the terms of this Agreement;
(ii) The Master Servicer has the full corporate power and authority to service each Mortgage Loan, and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary corporate action on the part of the Master Servicer the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties heretoDepositor and the Trustee, constitutes a legal, valid and binding obligation of the Master Servicer, enforceable against the Master Servicer in accordance with its terms, except to the extent that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ ' rights generally and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought;
(iii) The execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunder, the consummation of any other of the transactions herein contemplated, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Master Servicer and will not (A) result in a breach of any term or provision of the charter or by-laws of the Master Servicer or (B) conflict with, result in a breach, violation or acceleration of, or result in a default under, the terms of any other material agreement or instrument to which the Master Servicer is a party or by which it may be bound, or any statute, order or regulation applicable to the Master Servicer of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Master Servicer; and the Master Servicer 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 body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects or, to the Master Servicer’s 's knowledge, would in the future materially and adversely affect, (x) the ability of the Master Servicer to perform its obligations under this Agreement or (y) the business, operations, financial condition, properties or assets of the Master Servicer taken as a whole;
(iv) The Master Servicer is an approved seller/servicer for Fxxxxx Mxx Fannie Mae or Fxxxxxx Freddie Mac in good standing and is xxxx xtxxxing xxx xx a HUD approved mortgagee pursuant to Section 203 and Section 211 of the National Housing Act;
(v) No Except as disclosed in the Prospectus Supplement, no litigation is pending against the Master Servicer that would materially and adversely affect the execution, delivery or enforceability of this Agreement or the ability of the Master Servicer to service the Mortgage Loans or to perform any of its other obligations hereunder in accordance with the terms hereof;
(vi) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the consummation of the transactions contemplated by this Agreement, except for such consents, approvals, authorizations or orders, if any, that have been obtained prior to the Closing Date;
(vii) The Master Servicer covenants that its computer and other systems used in servicing the Mortgage Loans operate in a manner such that the Master Servicer can service the Mortgage Loans in accordance with the terms of this Agreement; and[Reserved];
(viii) The Master Servicer will not waive any Prepayment Charge or part of a Prepayment Charge unless, (i) the enforceability thereof shall have been limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally or a Sub-Servicer servicing (ii) the Mortgage Loans on its behalf) is a member of MERS in good standing, and will comply in all material respects with the rules and procedures of MERS collectability thereof shall have been limited due to acceleration in connection with a foreclosure or other involuntary payment or (iii) in the Master Servicer's reasonable judgment as described in Section 3.01 hereof, (x) such waiver relates to a default or a reasonably foreseeable default, (y) such waiver would maximize recovery of total proceeds taking into account the value of such Prepayment Charge and related Mortgage Loan and (z) doing so is standard and customary in servicing of the similar Mortgage Loans (including any waiver of a Prepayment Charge in connection with a refinancing of a Mortgage Loan that are registered is related to a default or a reasonably foreseeable default). In no event will the Master Servicer waive a Prepayment Charge in connection with MERS. It a refinancing of a Mortgage Loan that is understood and agreed that the representations, warranties and covenants not related to a default or a reasonably foreseeable default;
(ix) The information set forth in this Section 2.05 shall survive delivery of the Mortgage Files "monthly tape" provided to the Trustee or any of its affiliates is true and correct in all material respects;
(x) With respect to a Custodian on its behalf and shall inure to each Mortgage Loan, the benefit Assignment is in recordable form; (except that the name of the Trustee, the Trust Administrator, the Depositor assignee and the Certificateholders. Upon discovery by any of the Depositor, the Master Servicer, the Trust Administrator or the Trustee of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any recording information with respect to such Mortgage Loan or the interests therein of the Certificateholders, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the Trustee. Subject to Section 7.01, the obligation of the Master Servicer set forth in Section 2.03(c) to cure breaches shall constitute the sole remedies against the Master Servicer available to the Certificateholders, the Depositor, the Trust Administrator or the Trustee on behalf of the Certificateholders respecting a breach of the representations, warranties and covenants contained in this Section 2.05.is blank);
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (Argent Securities Inc Assset Back Pass THR Certs Ser 2003-W5), Pooling and Servicing Agreement (Argent Securities Inc Asset Back Pass THR Certs Ser 2003-W4), Pooling and Servicing Agreement (Argent Securities Inc Asst Back Pass THR Certs Ser 2003-W3)
Representations, Warranties and Covenants of the Master Servicer. The Master Servicer hereby represents, warrants and covenants to the Trust Administrator and the Trustee, for the benefit of each of the Trustee, the Trust Administrator, the Certificateholders and to the Depositor that as of the Closing Date or as of such date specifically provided herein:
(i) The Master Servicer is a corporation duly organized, validly existing and in good standing under the laws of the State of New York Delaware and is duly authorized and qualified to transact any and all business contemplated by this Agreement to be conducted by the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to service the Mortgage Loans in accordance with the terms of this Agreement;
(ii) The Master Servicer has the full corporate power and authority to service each Mortgage Loan, and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary corporate action on the part of the Master Servicer the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties heretoDepositor and the Trustee, constitutes a legal, valid and binding obligation of the Master Servicer, enforceable against the Master Servicer in accordance with its terms, except to the extent that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ ' rights generally and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought;
(iii) The execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunder, the consummation of any other of the transactions herein contemplated, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Master Servicer and will shall not (A) result in a breach of any term or provision of the charter or by-laws of the Master Servicer or (B) conflict with, result in a breach, violation or acceleration of, or result in a default under, the terms of any other material agreement or instrument to which the Master Servicer is a party or by which it may be bound, or any statute, order or regulation applicable to the Master Servicer of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Master Servicer; and the Master Servicer 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 body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects or, to the Master Servicer’s 's knowledge, would in the future materially and adversely affect, (x) the ability of the Master Servicer to perform its obligations under this Agreement or (y) the business, operations, financial condition, properties or assets of the Master Servicer taken as a whole;
(iv) The Master Servicer is an approved seller/servicer for Fxxxxx Mxx Fannie Mae or Fxxxxxx Freddie Mac in good standing and is a gxxx xxaxxxng axx xx x HUD approved mortgagee pursuant to Section 203 and Section 211 of the National Housing Act;
(v) No Except as disclosed in the Prospectus Supplement, no litigation is pending against the Master Servicer that would materially and adversely affect the execution, delivery or enforceability of this Agreement or the ability of the Master Servicer to service the Mortgage Loans or to perform any of its other obligations hereunder in accordance with the terms hereof;
(vi) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the consummation of the transactions contemplated by this Agreement, except for such consents, approvals, authorizations or orders, if any, that have been obtained prior to the Closing Date;
(vii) The Master Servicer covenants that its computer and other systems used in servicing the Mortgage Loans operate in a manner such that the Master Servicer can service the Mortgage Loans in accordance with the terms of this Agreement; and[Reserved];
(viii) The Master Servicer shall not waive any Prepayment Charge or part of a Prepayment Charge unless, (i) the enforceability thereof shall have been limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally or a Sub-Servicer servicing (ii) the Mortgage Loans on its behalf) is a member of MERS in good standing, and will comply in all material respects with the rules and procedures of MERS collectability thereof shall have been limited due to acceleration in connection with a foreclosure or other involuntary payment or (iii) in the Master Servicer's reasonable judgment as described in Section 3.01 hereof, (x) such waiver relates to a default or a reasonably foreseeable default, (y) such waiver would maximize recovery of total proceeds taking into account the value of such Prepayment Charge and related Mortgage Loan and (z) doing so is standard and customary in servicing of the similar Mortgage Loans (including any waiver of a Prepayment Charge in connection with a refinancing of a Mortgage Loan that are registered is related to a default or a reasonably foreseeable default). In no event shall the Master Servicer waive a Prepayment Charge in connection with MERS. It a refinancing of a Mortgage Loan that is understood and agreed that the representations, warranties and covenants not related to a default or a reasonably foreseeable default;
(ix) The information set forth in this Section 2.05 shall survive delivery of the Mortgage Files "monthly tape" provided to the Trustee or any of its affiliates is true and correct in all material respects;
(x) With respect to a Custodian on its behalf and shall inure to each Mortgage Loan, the benefit Assignment is in recordable form (except that the name of the Trustee, the Trust Administrator, the Depositor assignee and the Certificateholders. Upon discovery by any of the Depositor, the Master Servicer, the Trust Administrator or the Trustee of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any recording information with respect to such Mortgage Loan or the interests therein of the Certificateholders, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the Trustee. Subject to Section 7.01, the obligation of the Master Servicer set forth in Section 2.03(c) to cure breaches shall constitute the sole remedies against the Master Servicer available to the Certificateholders, the Depositor, the Trust Administrator or the Trustee on behalf of the Certificateholders respecting a breach of the representations, warranties and covenants contained in this Section 2.05.is blank);
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (Argent Securities Inc Asset Back Pass THR Certs Ser 2004-W5), Pooling and Servicing Agreement (Argent Securities Inc Asset Back Pass THR Certs Ser 2004-W5), Pooling and Servicing Agreement (Argent Securities Inc Asset-Backed Pass-Through Certificates, Series 2004-W9)
Representations, Warranties and Covenants of the Master Servicer. (a) The Master Servicer hereby represents, warrants and covenants to the Trust Administrator and the Trustee, for the benefit of each of the TrusteeTrustee and the Certificateholders, the Trust Administrator, the Certificateholders and to the Depositor Depositor, that as of the Closing Date or as of such date specifically provided herein:
(i) The Master Servicer is a corporation duly organized, validly existing and in good standing under the laws of the State state of New York and its incorporation, is duly authorized and qualified to transact any and all business contemplated by this Agreement and has all licenses necessary to be carry on its business as now being conducted and is licensed, qualified and in good standing in the states where the Mortgaged Properties are located if the laws of such state require licensing or qualification in order to conduct business of the type conducted by the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification ensure the enforceability or validity of each Mortgage Loan and, in any event, is in compliance with the doing business laws of any such State, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to service the Mortgage Loans in accordance with the terms of this Agreement;
(ii) The Master Servicer has the full corporate power and authority to service each Mortgage Loan, and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary corporate action on the part of the Master Servicer the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties heretoDepositor and the Trustee, constitutes a legal, valid and binding obligation of the Master Servicer, enforceable against the Master Servicer in accordance with its terms, except to the extent that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ rights generally and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought;.
(iii) The execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunder, the consummation by the Master Servicer of any other of the transactions herein contemplated, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Master Servicer and will not (A) result in a breach of any term or provision of the charter or by-laws of the Master Servicer or (B) conflict with, result in a breach, violation or acceleration of, or result in a default under, the terms of any other material agreement or instrument to which the Master Servicer is a party or by which it may be bound, or any statute, order or regulation applicable to the Master Servicer of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Master Servicer; and the Master Servicer 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 body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects or, to the Master Servicer’s knowledge, would in the future materially and adversely affect, (x) the ability of the Master Servicer to perform its obligations under this Agreement or (y) the business, operations, financial condition, properties or assets of the Master Servicer taken as a whole;
(iv) The Master Servicer is an approved seller/servicer for Fxxxxx Mxx Xxxxxx Xxx or Fxxxxxx Xxxxxxx Mac in good standing and is a HUD approved mortgagee pursuant to Section 203 and Section 211 of the National Housing Act;
(v) No litigation is pending against the Master Servicer that would materially and adversely affect the execution, delivery or enforceability of this Agreement or the ability of the Master Servicer to service the Mortgage Loans or to perform any of its other obligations hereunder in accordance with the terms hereof;
(vi) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the consummation by the Master Servicer of the transactions contemplated by this Agreement, except for such consents, approvals, authorizations or orders, if any, that have been obtained prior to the Closing Date;
(vii) The Master Servicer covenants that information set forth in the Prepayment Charge Schedule is complete, true and correct in all material respects at the date or dates respecting which such information is furnished and each Prepayment Charge is permissible and enforceable in accordance with its computer terms under applicable law upon the Mortgagor’s voluntary principal prepayment (except to the extent that: (1) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other systems used similar laws relating to creditors’ rights generally; or (2) the collectability thereof may be limited due to acceleration in servicing connection with a foreclosure or other involuntary prepayment); provided that the Mortgage Loans operate representation, warranty and covenant contained in a manner such that this clause (vii) is made by the Master Servicer can service the Mortgage Loans only in accordance with the terms of this Agreementits capacity as Seller; and
(viii) The Master Servicer (will not waive any Prepayment Charge or part of a Prepayment Charge unless such waiver is related to a default or a Sub-Servicer reasonably foreseeable default and would maximize recovery of total proceeds taking into account the value of such Prepayment Charge and related Mortgage Loan and doing so is standard and customary in servicing mortgage loans similar to the Mortgage Loans on its behalf) is (including any waiver of a member of MERS in good standing, and will comply in all material respects with the rules and procedures of MERS Prepayment Charge in connection with a refinancing of a Mortgage Loan that is related to a default or a reasonably foreseeable default).
(ix) With respect to each Mortgage Loan, the servicing Master Servicer will furnish, or cause to be furnished, information regarding the borrower credit file related to such Mortgage Loan to credit reporting agencies in compliance with the provisions of the Fair Credit Reporting Act and the applicable implementing regulations. The Master Servicer will transmit full-file credit reporting data for each Mortgage Loans Loan pursuant to Xxxxxx Mae Guide Announcement 95-19 and that are registered with MERS. for each Mortgage Loan, the Master Servicer agrees it shall report one of the following statuses each month as follows: new origination, current, delinquent (30-, 60-, 90-days, etc.), foreclosed, or charged-off.
(b) It is understood and agreed that the representations, warranties and covenants set forth in this Section 2.05 2.04 shall survive delivery of the Mortgage Files to the Trustee or to a Custodian on its behalf Custodian, as the case may be, and shall inure to the benefit of the Trustee, the Trust Administrator, the Depositor and the Certificateholders. Upon discovery by any of the Depositor, the Master Servicer, the Trust Administrator Servicer or the Trustee of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any Mortgage Loan Loan, Prepayment Charge or the interests therein of the Certificateholders, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the Trusteeother of such parties. Subject to Section 7.01, the The obligation of the Master Servicer set forth in Section 2.03(c) to cure breaches (or, in the case of (a)(vii) or (a)(viii) above, to pay a Master Servicer Prepayment Charge Payment Amount) shall constitute the sole remedies remedy against the Master Servicer available to the Certificateholders, the Depositor, the Trust Administrator NIMS Insurer or the Trustee on behalf of the Certificateholders respecting a breach of the representations, warranties and covenants contained in this Section 2.052.04. The preceding sentence shall not, however, limit any remedies available to the Certificateholders, the Depositor, the NIMS Insurer or the Trustee on behalf of the Certificateholders, (i) pursuant to the Mortgage Loan Purchase Agreement signed by the Master Servicer in its capacity as Seller, respecting a breach of the representations, warranties and covenants of the Master Servicer in its capacity as Seller contained in the Mortgage Loan Purchase Agreement or (ii) pursuant to Section 7.01 hereof.
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (Long Beach Mortgage Loan Trust 2006-Wl3), Pooling and Servicing Agreement (Long Beach Mortgage Loan Trust 2006-Wl1), Pooling and Servicing Agreement (Long Beach Mortgage Loan Trust 2006-Wl2)
Representations, Warranties and Covenants of the Master Servicer. The Master Servicer hereby represents, warrants and covenants to the Trust Administrator and the Trustee, for the benefit of each of the Trustee, the Trust AdministratorCertificateholders, the Certificateholders Certificate Insurer and to the Depositor that as of the Closing Date or as of such date specifically provided herein:
(i) The Master Servicer is a corporation duly organized, validly existing and in good standing under the laws of the State of New York California and is duly authorized and qualified to transact any and all business contemplated by this Agreement to be conducted by the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent necessary to ensure its ability ability, or to cause a Sub-Servicer, to enforce each Mortgage Loan and to service the Mortgage Loans in accordance with the terms of this Agreement;
(ii) The Master Servicer has the full corporate power and authority to service each Mortgage Loan, conduct its business as presently conducted by it and to execute, deliver and perform, and to enter into and consummate the consummate, all transactions contemplated by this Agreement and Agreement. The Master Servicer has duly authorized by all necessary corporate action on the part of the Master Servicer the execution, delivery and performance of this Agreement; , has duly executed and delivered this Agreement, and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties heretoDepositor and the Trustee, constitutes a legal, valid and binding obligation of the Master Servicer, enforceable against the Master Servicer it in accordance with its terms, terms except to the extent that (a) as the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other reorganization or similar laws relating to affecting the enforcement of creditors’ ' rights generally and (b) the remedy by general principles of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be broughtequity;
(iii) The execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunder, the consummation by the Master Servicer of any other of the transactions herein contemplated, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Master Servicer and will not (A) result in a breach of any term or provision of the charter or by-laws of the Master Servicer or (B) conflict with, result in a breach, violation or acceleration of, or result in a default under, the terms of any other material agreement or instrument to which the Master Servicer is a party or by which it may be bound, or any statute, order or regulation applicable to the Master Servicer of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Master Servicer; and the Master Servicer 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 body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects or, to the Master Servicer’s 's knowledge, would in the future materially and adversely affect, (x) the ability of the Master Servicer to perform its obligations under this Agreement or (y) the business, operations, financial condition, properties or assets of the Master Servicer taken as a whole;
(iv) The Master Servicer is an approved seller/servicer for Fxxxxx Mxx or Fxxxxxx Mac in good standing and is a HUD approved mortgagee pursuant to Section 203 of the National Housing Act. No event has occurred, including but not limited to a change in insurance coverage, that would make the Master Servicer unable to comply with HUD eligibility requirements or that would require notification to HUD;
(v) No litigation is pending against The Master Servicer does not believe, nor does it have any reason or cause to believe, that it cannot perform each and every covenant made by it and contained in this Agreement, it being understood that certain of such covenants shall be performed by a Sub-Servicer pursuant to a Sub-Servicing Agreement between the Master Servicer and such Sub-Servicer in accordance with Section 3.02;
(vi) With respect to each Mortgage Loan, the Master Servicer, or SubServicer, is in possession of a complete Mortgage File, except for such documents as have been delivered to the Trustee;
(vii) There are no actions or proceedings against, or investigations known to it of, the Master Servicer before any court, administrative or other tribunal (A) that would might prohibit its entering into this Agreement, (B) seeking to prevent the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the execution, delivery or enforceability of this Agreement or the ability of performance by the Master Servicer to service the Mortgage Loans or to perform any of its other obligations hereunder in accordance with the terms hereof;under, or validity or enforceability of, this Agreement; and
(viviii) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the consummation by it of the transactions contemplated by this Agreement, except for such consents, approvals, authorizations or orders, if any, that have been obtained prior to the Closing Date;
(vii) The Master Servicer covenants that its computer and other systems used in servicing the Mortgage Loans operate in a manner such that the Master Servicer can service the Mortgage Loans in accordance with the terms of this Agreement; and
(viii) The Master Servicer (or a Sub-Servicer servicing the Mortgage Loans on its behalf) is a member of MERS in good standing, and will comply in all material respects with the rules and procedures of MERS in connection with the servicing of the Mortgage Loans that are registered with MERS. It is understood and agreed that the representations, warranties and covenants set forth in this Section 2.05 shall survive delivery of the Mortgage Files to the Trustee or to a Custodian on its behalf and shall inure to the benefit of the Trustee, the Trust AdministratorDepositor, the Depositor Certificateholders and the CertificateholdersCertificate Insurer. Upon discovery by any of the Depositor, the Master Servicer, the Trust Administrator Servicer or the Trustee of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any Mortgage Loan or the interests therein of the CertificateholdersCertificateholders and the Certificate Insurer, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the TrusteeTrustee and the Certificate Insurer. Subject to Section 7.01, unless such breach shall not be susceptible of cure within 90 days, the obligation of the Master Servicer set forth in Section 2.03(c) to cure breaches shall constitute the sole remedies remedy against the Master Servicer available to the Certificateholders, the Depositor, the Trust Administrator Depositor or the Trustee on behalf of the Certificateholders respecting a breach of the representations, warranties and covenants contained in this Section 2.05. The preceding sentence shall not, however, limit any remedies available to the Certificateholders, the Depositor or the Trustee on behalf of the Certificateholders, pursuant to the Mortgage Loan Purchase Agreement signed by the Master Servicer in its capacity as Seller, respecting a breach of the representations, warranties and covenants of the Master Servicer in its capacity as Seller contained in the Mortgage Loan Purchase Agreement.
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (Salomon Brothers Mort Sec Vii Inc Asst Back Cert Se 1997-Nc3), Pooling and Servicing Agreement (Salomon Bros Mort Sec Vii Inc Ast Bk Fl Rte Cer Se 1997-Nc1), Pooling and Servicing Agreement (Salomon Br Mor Sec Vii Inc New Cen Ast BCK Fl Rt Ce 1997 Nc2)
Representations, Warranties and Covenants of the Master Servicer. The Master Servicer hereby represents, warrants and covenants to the Trust Administrator and the Trustee, for the benefit of each of the Trustee, the Trust Administrator, the Certificateholders and to the Depositor that as of the Closing Date or as of such date specifically provided herein:
(i) The Master Servicer is a corporation duly organized, validly existing and in good standing under the laws of the State of New York and is duly authorized and qualified to transact any and all business contemplated by this Agreement to be conducted by the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to service the Mortgage Loans in accordance with the terms of this Agreement;
(ii) The Master Servicer has the full corporate power and authority to service each Mortgage Loan, and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary corporate action on the part of the Master Servicer the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties hereto, constitutes a legal, valid and binding obligation of the Master Servicer, enforceable against the Master Servicer in accordance with its terms, except to the extent that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ rights generally and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought;
(iii) The execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunder, the consummation of any other of the transactions herein contemplated, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Master Servicer and will not (A) result in a breach of any term or provision of the charter or by-laws of the Master Servicer or (B) conflict with, result in a breach, violation or acceleration of, or result in a default under, the terms of any other material agreement or instrument to which the Master Servicer is a party or by which it may be bound, or any statute, order or regulation applicable to the Master Servicer of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Master Servicer; and the Master Servicer 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 body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects or, to the Master Servicer’s knowledge, would in the future materially and adversely affect, (x) the ability of the Master Servicer to perform its obligations under this Agreement or (y) the business, operations, financial condition, properties or assets of the Master Servicer taken as a whole;
(iv) The Master Servicer is an approved seller/servicer for Fxxxxx Mxx or Fxxxxxx Mac in good standing and is a HUD approved mortgagee pursuant to Section 203 of the National Housing Act;
(v) No litigation is pending against the Master Servicer that would materially and adversely affect the execution, delivery or enforceability of this Agreement or the ability of the Master Servicer to service the Mortgage Loans or to perform any of its other obligations hereunder in accordance with the terms hereof;
(vi) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the consummation of the transactions contemplated by this Agreement, except for such consents, approvals, authorizations or orders, if any, that have been obtained prior to the Closing Date;
(vii) The Master Servicer covenants that its computer and other systems used in servicing the Mortgage Loans operate in a manner such that the Master Servicer can service the Mortgage Loans in accordance with the terms of this Agreement; and
(viii) The Master Servicer (or a Sub-Servicer servicing the Mortgage Loans on its behalf) is a member of MERS in good standing, and will comply in all material respects with the rules and procedures of MERS in connection with the servicing of the Mortgage Loans that are registered with MERS. It is understood and agreed that the representations, warranties and covenants set forth in this Section 2.05 shall survive delivery of the Mortgage Files to the Trustee or to a the Custodian on its behalf and shall inure to the benefit of the Trustee, the Trust Administrator, the Depositor and the Certificateholders. Upon discovery by any of the Depositor, the Master Servicer, the Trust Administrator or the Trustee of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any Mortgage Loan or the interests therein of the Certificateholders, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the Trustee. Subject to Section 7.01, the obligation of the Master Servicer set forth in Section 2.03(c) to cure breaches shall constitute the sole remedies against the Master Servicer available to the Certificateholders, the Depositor, the Trust Administrator or the Trustee on behalf of the Certificateholders respecting a breach of the representations, warranties and covenants contained in this Section 2.05.
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (Citigroup Mortgage Loan Trust Inc., Series 2005-9), Pooling and Servicing Agreement (Citigroup Mortgage Loan Trust 2007-10), Pooling and Servicing Agreement (Citigroup Mortgage Loan Trust, Series 2005-10)
Representations, Warranties and Covenants of the Master Servicer. The Master Servicer hereby represents, warrants and covenants to the Trust Administrator and the Trustee, for the benefit of each of the Trustee, the Trust Administrator, Trustee and the Certificateholders and to the Depositor that as of the Closing Date or as of such date specifically provided herein:
(i) The Master Servicer is a corporation duly organized, validly existing existing, and in good standing under the laws of the State jurisdiction of New York its formation and has all licenses necessary to carry on its business as now being conducted and is duly authorized licensed, qualified and qualified in good standing in the states where the Mortgaged Property is located if the laws of such state require licensing or qualification in order to transact any and all conduct business contemplated by this Agreement to be of the type conducted by the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent necessary to ensure its ability to enforce the enforceability or validity of each Mortgage Loan and to service Loan; the Mortgage Loans in accordance with the terms of this Agreement;
(ii) The Master Servicer has the full corporate power and authority to service each Mortgage Loan, execute and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary corporate action on the part of the Master Servicer to perform in accordance herewith; the execution, delivery and performance of this Agreement; and Agreement (including all instruments of transfer to be delivered pursuant to this Agreement, assuming the due authorization, execution and delivery thereof ) by the other parties heretoMaster Servicer and the consummation of the transactions contemplated hereby have been duly and validly authorized; this Agreement evidences the valid, constitutes a legal, valid binding and binding enforceable obligation of the Master Servicer, enforceable against subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally; and all requisite corporate action has been taken by the Master Servicer to make this Agreement valid and binding upon the Master Servicer in accordance with its terms, except to the extent that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ rights generally and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought;
(iiiii) The execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunder, the consummation of any other of the transactions herein contemplated, and the fulfillment of or compliance with the terms hereof contemplated by this Agreement are in the ordinary course of business of the Master Servicer and will not (A) result in a the breach of any term or provision of the charter or by-laws of the Master Servicer or (B) conflict with, result in a breach, violation the breach of any term or acceleration provision of, or conflict with or constitute a default under or result in a default the acceleration of any obligation under, the terms of any other material agreement, indenture or loan or credit agreement or other instrument to which the Master Servicer or its property is a party or by which it may be boundsubject, or result in the violation of any statutelaw, order rule, regulation, order, judgment or regulation applicable decree to which the Master Servicer or its property is subject;
(iii) The execution and delivery of this Agreement by the Master Servicer and the performance and compliance with its obligations and covenants hereunder do not require the consent or approval of any courtgovernmental authority or, regulatory bodyif such consent or approval is required, administrative agency or governmental body having jurisdiction over it has been obtained;
(iv) This Agreement, and all documents and instruments contemplated hereby which are executed and delivered by the Master Servicer; , constitute and will constitute valid, legal and binding obligations of the Master Servicer, enforceable in accordance with their respective terms, except as the enforcement thereof may be limited by applicable bankruptcy laws and general principles of equity;
(v) [Reserved];
(vi) The Master Servicer does not believe, nor does it have any reason or cause to believe, that it cannot perform each and every covenant contained in this Agreement;
(vii) There is no action, suit, proceeding or investigation pending or, to its knowledge, threatened against the Master Servicer is not a party tothat, bound by, either individually 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 body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects or, to the Master Servicer’s knowledge, would in the future materially and adversely affectaggregate, (xA) the ability of the Master Servicer to perform its obligations under this Agreement or (y) may result in any change in the business, operations, financial condition, properties or assets of the Master Servicer taken as a whole;
(iv) The Master Servicer is an approved seller/servicer for Fxxxxx Mxx that might prohibit or Fxxxxxx Mac in good standing and is a HUD approved mortgagee pursuant to Section 203 of the National Housing Act;
(v) No litigation is pending against the Master Servicer that would materially and adversely affect the executionperformance by such Master Servicer of its obligations under, delivery or validity or enforceability of, this Agreement, or (B)may result in any material impairment of the right or ability of the Master Servicer to carry on its business substantially as now conducted, or (C) may result in any material liability on the part of the Master Servicer, or (D) would draw into question the validity or enforceability of this Agreement or of any action taken or to be taken in connection with the obligations of the Master Servicer contemplated herein, or (E) would otherwise be likely to impair materially the ability of the Master Servicer to service the Mortgage Loans or to perform any of its other obligations hereunder in accordance with under the terms hereofof this Agreement;
(viviii) No consentNeither this Agreement nor any information, approvalcertificate of an officer, authorization statement furnished in writing or order of any court or governmental agency or body is required for report delivered to the execution, delivery and performance Trustee by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the consummation of in connection with the transactions contemplated by this Agreement, except for such consents, approvals, authorizations or orders, if any, that have been obtained prior to the Closing Datehereby contains any untrue statement of a material fact;
(viiix) The Master Servicer covenants that its computer and other systems used in servicing the Mortgage Loans operate in a manner such that the Master Servicer can service the Mortgage Loans in accordance with the terms of this Agreement;
(x) The information set forth in the Prepayment Charge Schedule (including the Prepayment Charge Summary attached thereto) is complete, true and correct in all material respects on the date or dates when such information is furnished and each Prepayment Charge is permissible and enforceable in accordance with its terms (except to the extent that the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws affecting creditor's rights generally or the collectibility thereof may be limited due to acceleration in connection with a foreclosure) under applicable state law; and
(viiixi) The Master Servicer (or a Sub-Servicer servicing the Mortgage Loans on its behalf) will not waive any Prepayment Charge unless it is a member of MERS waived in good standing, and will comply in all material respects accordance with the rules and procedures of MERS standard set forth in connection with the servicing of the Mortgage Loans that are registered with MERSSection 3.01. It is understood and agreed that the representations, warranties and covenants set forth in this Section 2.05 shall survive delivery of the Mortgage Files to the Trustee or to a Custodian on its behalf and shall inure to the benefit of the Trustee, the Trust Administrator, the Depositor and the Certificateholders. Upon discovery by any of the Depositor, the Master Servicer, the Trust Administrator Originator or the Trustee of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any Mortgage Loan Loan, Prepayment Charge or the interests therein of the Certificateholders, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the Master Servicer, the Originator and the Trustee. Subject to Section 7.01Notwithstanding the foregoing, within 90 days of the obligation earlier of discovery by the Master Servicer or receipt of notice by the Master Servicer of the breach of the representation or covenant of the Master Servicer set forth in Section 2.03(cSections 2.05(x) to cure breaches shall constitute or 2.05(xi) above which materially and adversely affects the sole remedies against interests of the Holders of the Class P Certificates in any Prepayment Charge, the Master Servicer shall remedy such breach as follows: (a) if the representation made by the Master Servicer in Section 2.05(x) above is breached and a Principal Prepayment has occurred in the applicable Prepayment Period or if a change of law subsequent to the Closing Date limits the enforceability of a Prepayment Charge (other than in the circumstances provided in Section 2.05(x) above), the Master Servicer must pay the amount of the scheduled Prepayment Charge, for the benefit of the Holders of the Class P Certificates, by depositing such amount into the Collection Account, net of any amount previously collected by the Master Servicer and paid by the Master Servicer, for the benefit of the Holders of the Class P Certificates, in respect of such Prepayment Charge; and (b) if any of the covenants made by the Master Servicer in Section 2.05(xi) above is breached, the Master Servicer must pay the amount of such waived Prepayment Charge, for the benefit of the holders of the Class P Certificates, by depositing such amount into the Collection Account. The foregoing shall not, however, limit any remedies available to the Certificateholders, the Depositor, the Trust Administrator Depositor or the Trustee on behalf of the Certificateholders Certificateholders, pursuant to the Mortgage Loan Purchase Agreement signed by the Master Servicer in its capacity as Originator, respecting a breach of the representations, warranties and covenants of the Master Servicer in its capacity as Origiantor contained in this Section 2.05the Mortgage Loan Purchase Agreement.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Option One Mort Accept Corp Asset Backed Cert Series 2000-3), Pooling and Servicing Agreement (Option One Mort Accept Corp Asset Backed Cert Series 2000-3)
Representations, Warranties and Covenants of the Master Servicer. The Master Servicer (a) EMC hereby represents, represents and warrants and covenants to the Trust Administrator Trustee and the Trustee, for the benefit of each of the Trustee, the Trust Administrator, the Certificateholders and to the Depositor that Certificate Insurer as of the Closing Date or as of such date specifically provided hereinthat:
(i) The Master Servicer It is a corporation duly organized, validly existing and in good standing under the laws of the State state of New York its incorporation and is duly authorized in good standing as a foreign corporation in each jurisdiction where such qualification is necessary and qualified to transact any and all business contemplated by throughout the term of this Agreement will remain a corporation duly organized, validly existing and in good standing under the laws of the state of its incorporation or any state of reincorporation and in good standing as a foreign corporation in each jurisdiction where such qualification is necessary (except, in the case of foreign corporation qualification both on the date hereof and in the future, where the failure so to qualify would not reasonably be conducted by expected to have a material adverse effect on the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent necessary to ensure its Servicer's ability to enforce each Mortgage Loan enter into this Agreement or to perform its obligations hereunder), and has the corporate power and authority to service the Mortgage Loans in accordance with the terms of perform its obligations under this Agreement;
(ii) The Master Servicer has the full corporate power execution and authority to service each Mortgage Loan, and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by delivery of this Agreement and has have been duly authorized by all necessary requisite corporate action on the part of the Master Servicer the execution, delivery and performance of this Agreement; and this action;
(iii) This Agreement, assuming the due authorization, execution execution, and delivery thereof by the other parties hereto, constitutes a will constitute its legal, valid and binding obligation of the Master Servicerobligation, enforceable against the Master Servicer in accordance with its terms, except to the extent that (a) the enforceability thereof only as such enforcement may be limited by bankruptcy, insolvency, moratorium, receivership applicable Debtor Relief Laws and other similar laws relating to creditors’ rights generally and (b) the remedy that certain equitable remedies may not be available regardless of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be broughtwhether enforcement is sought in equity or at law;
(iiiiv) The Its execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunder, the consummation of any other of the transactions herein contemplated, and the fulfillment of or its performance and compliance with the terms hereof are in the ordinary course of business of the Master Servicer and this Agreement will not (A) result in a breach violate its certificate of any term incorporation or provision of the charter or by-laws of the Master Servicer or bylaws (B) conflict withto its knowledge, result in violate any law or regulation, or any administrative or judicial decree or order to which it is subject or (C) constitute a breachdefault (or an event which, violation with notice or acceleration oflapse of time, or both, would constitute a default) under, or result in a default underthe breach of, the terms of any other material contract, agreement or other instrument to which the Master Servicer it is a party or by which it may be bound, applicable to it or any statute, order or regulation applicable to the Master Servicer of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Master Servicer; and the Master Servicer 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 body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects or, to the Master Servicer’s knowledge, would in the future materially and adversely affect, (x) the ability of the Master Servicer to perform its obligations under this Agreement or (y) the business, operations, financial condition, properties or assets of the Master Servicer taken as a whole;
(iv) The Master Servicer is an approved seller/servicer for Fxxxxx Mxx or Fxxxxxx Mac in good standing and is a HUD approved mortgagee pursuant to Section 203 of the National Housing Actassets;
(v) No litigation To its best knowledge, after reasonable investigation, it is pending against the Master Servicer not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or governmental agency, which default would reasonably be expected to have consequences that would materially and adversely affect the execution, delivery its financial condition or enforceability of this Agreement operations or the ability of the Master Servicer to service the Mortgage Loans or to perform any of its other obligations hereunder in accordance with the terms hereofperformance hereunder;
(vi) No consentIt does not believe, approvalnor does it have any reason or cause to believe, authorization or order of any court or governmental agency or body is required for the execution, delivery that it cannot perform each and performance by the Master Servicer of, or compliance by the Master Servicer with, every covenant contained in this Agreement or the to be performed by it;
(vii) The consummation of the transactions contemplated by this Agreement, except for such consents, approvals, authorizations or orders, if any, that have been obtained prior to Agreement are in the Closing Dateordinary course of its business;
(viiviii) The Master Servicer covenants that No litigation is pending or, to its computer best knowledge, threatened against it, which could be reasonably expected to materially and other systems used in servicing the Mortgage Loans operate in adversely affect its entering into this Agreement or performing its obligations under this Agreement or which would have a manner such that the Master Servicer can service the Mortgage Loans in accordance with the terms of this Agreementmaterial adverse effect on its financial condition; and
(viiiix) The Master Servicer (or a Sub-Servicer servicing the As to each Mortgage Loans on its behalf) is a member of MERS in good standing, and will comply in all material respects with the rules and procedures of MERS in connection with the servicing of the Mortgage Loans that are registered with MERS. It is understood and agreed that the representations, warranties and covenants set forth in this Section 2.05 shall survive delivery of the Mortgage Files to the Trustee or to a Custodian on its behalf and shall inure to the benefit of the TrusteeLoan, the Trust Administrator, the Depositor Seller Contract is in full force and the Certificateholders. Upon discovery by any of the Depositor, the Master Servicer, the Trust Administrator or the Trustee of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any Mortgage Loan or the interests therein of the Certificateholders, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the Trustee. Subject to Section 7.01, the obligation of the Master Servicer set forth in Section 2.03(c) to cure breaches shall constitute the sole remedies against the Master Servicer available to the Certificateholders, the Depositor, the Trust Administrator or the Trustee on behalf of the Certificateholders respecting a breach of the representations, warranties and covenants contained in this Section 2.05effect.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Structured Asset Mortgage Investments Inc), Pooling and Servicing Agreement (Structured Asset Mortgage Investments Inc)
Representations, Warranties and Covenants of the Master Servicer. The Master Servicer hereby represents, warrants and covenants to the Trust Administrator and the Trustee, for the benefit of each of the Trustee, the Trust Administrator, Trustee and the Certificateholders and to the Depositor that as of the Closing Date or as of such date specifically provided herein:
(i) The Master Servicer is a corporation duly organized, validly existing existing, and in good standing under the laws of the State jurisdiction of New York its formation and has all licenses necessary to carry on its business as now being conducted and is duly authorized licensed, qualified and qualified in good standing in the states where the Mortgaged Property is located if the laws of such state require licensing or qualification in order to transact any and all conduct business contemplated by this Agreement to be of the type conducted by the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent necessary to ensure its ability to enforce the enforceability or validity of each Mortgage Loan and to service Loan; the Mortgage Loans in accordance with the terms of this Agreement;
(ii) The Master Servicer has the full corporate power and authority to service each Mortgage Loan, execute and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary corporate action on the part of the Master Servicer to perform in accordance herewith; the execution, delivery and performance of this Agreement; and Agreement (including all instruments of transfer to be delivered pursuant to this Agreement, assuming the due authorization, execution and delivery thereof ) by the other parties heretoMaster Servicer and the consummation of the transactions contemplated hereby have been duly and validly authorized; this Agreement evidences the valid, constitutes a legal, valid binding and binding enforceable obligation of the Master Servicer, enforceable against subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally; and all requisite corporate action has been taken by the Master Servicer to make this Agreement valid and binding upon the Master Servicer in accordance with its terms, except to the extent that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ rights generally and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought;
(iiiii) The execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunder, the consummation of any other of the transactions herein contemplated, and the fulfillment of or compliance with the terms hereof contemplated by this Agreement are in the ordinary course of business of the Master Servicer and will not (A) result in a the breach of any term or provision of the charter or by-laws of the Master Servicer or (B) conflict with, result in a breach, violation the breach of any term or acceleration provision of, or conflict with or constitute a default under or result in a default the acceleration of any obligation under, the terms of any other material agreement, indenture or loan or credit agreement or other instrument to which the Master Servicer or its property is a party or by which it may be boundsubject, or result in the violation of any statutelaw, order rule, regulation, order, judgment or regulation applicable decree to which the Master Servicer or its property is subject; 50
(iii) The execution and delivery of this Agreement by the Master Servicer and the performance and compliance with its obligations and covenants hereunder do not require the consent or approval of any courtgovernmental authority or, regulatory bodyif such consent or approval is required, administrative agency or governmental body having jurisdiction over it has been obtained;
(iv) This Agreement, and all documents and instruments contemplated hereby which are executed and delivered by the Master Servicer; , constitute and will constitute valid, legal and binding obligations of the Master Servicer, enforceable in accordance with their respective terms, except as the enforcement thereof may be limited by applicable bankruptcy laws and general principles of equity;
(v) [Reserved];
(vi) The Master Servicer does not believe, nor does it have any reason or cause to believe, that it cannot perform each and every covenant contained in this Agreement;
(vii) There is no action, suit, proceeding or investigation pending or, to its knowledge, threatened against the Master Servicer is not a party tothat, bound by, either individually 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 body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects or, to the Master Servicer’s knowledge, would in the future materially and adversely affectaggregate, (xA) the ability of the Master Servicer to perform its obligations under this Agreement or (y) may result in any change in the business, operations, financial condition, properties or assets of the Master Servicer taken as a whole;
(iv) The Master Servicer is an approved seller/servicer for Fxxxxx Mxx that might prohibit or Fxxxxxx Mac in good standing and is a HUD approved mortgagee pursuant to Section 203 of the National Housing Act;
(v) No litigation is pending against the Master Servicer that would materially and adversely affect the executionperformance by such Master Servicer of its obligations under, delivery or validity or enforceability of, this Agreement, or (B)may result in any material impairment of the right or ability of the Master Servicer to carry on its business substantially as now conducted, or (C) may result in any material liability on the part of the Master Servicer, or (D) would draw into question the validity or enforceability of this Agreement or of any action taken or to be taken in connection with the obligations of the Master Servicer contemplated herein, or (E) would otherwise be likely to impair materially the ability of the Master Servicer to service the Mortgage Loans or to perform any of its other obligations hereunder in accordance with under the terms hereofof this Agreement;
(viviii) No consentNeither this Agreement nor any information, approvalcertificate of an officer, authorization statement furnished in writing or order of any court or governmental agency or body is required for report delivered to the execution, delivery and performance Trustee by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the consummation of in connection with the transactions contemplated by this Agreement, except for such consents, approvals, authorizations or orders, if any, that have been obtained prior to the Closing Datehereby contains any untrue statement of a material fact;
(viiix) The Master Servicer covenants that its computer and other systems used in servicing the Mortgage Loans operate in a manner such that the Master Servicer can service the Mortgage Loans in accordance with the terms of this Agreement;
(x) The information set forth in the Prepayment Charge Schedule (including the Prepayment Charge Summary attached thereto) is complete, true and correct in all material respects on the date or dates when such information is furnished and each Prepayment Charge is permissible and enforceable in accordance with its terms (except to the extent that the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws affecting creditor's rights generally or the collectibility thereof may be limited due to acceleration in connection with a foreclosure) under applicable state law; and
(viiixi) The Master Servicer (or a Sub-Servicer servicing the Mortgage Loans on its behalf) will not waive any Prepayment Charge unless it is a member of MERS waived in good standing, and will comply in all material respects accordance with the rules and procedures of MERS standard set forth in connection with the servicing of the Mortgage Loans that are registered with MERSSection 3.01. It is understood and agreed that the representations, warranties and covenants set forth in this Section 2.05 shall survive delivery of the Mortgage Files to the Trustee or to a Custodian on its behalf and shall inure to the benefit of the Trustee, the Trust Administrator, the Depositor and the Certificateholders. Upon discovery by any of the Depositor, the NIMs Insurer, the Master Servicer, the Trust Administrator Originator or the Trustee of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any Mortgage Loan Loan, Prepayment Charge or the interests therein of the Certificateholders, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the Master Servicer, the Originator, the NIMs Insurer and the Trustee. Subject to Section 7.01Notwithstanding the foregoing, within 90 days of the obligation earlier of discovery by the Master Servicer or receipt of notice by the Master Servicer of the breach of the representation or covenant of the Master Servicer (in its capacity as Originator) set forth in Section 2.03(cSections 2.05(x) to cure breaches shall constitute or 2.05(xi) above which materially and adversely affects the sole remedies against interests of the Holders of the Class P Certificates in any Prepayment Charge, the Master Servicer shall remedy such breach as follows: (a) if the representation made by the Master Servicer (in its capacity as Originator) in Section 2.05(x) above is breached and a Principal Prepayment has occurred in the applicable Prepayment Period or if a change of law subsequent to the Closing Date limits the enforceability of a Prepayment Charge (other than in the circumstances provided in Section 2.05(x) above), the Master Servicer (in its capacity as Originator) must pay the amount of the scheduled Prepayment Charge, for the benefit of the Holders of the Class P Certificates, by depositing such amount into the Collection Account, net of any amount previously collected by the Master Servicer and paid by the Master Servicer, for the benefit of the Holders of the Class P Certificates, in respect of such Prepayment Charge; and (b) if any of the covenants made by the Master Servicer in Section 2.05(xi) above is breached, the Master Servicer must pay the amount of such waived Prepayment Charge, for the benefit of the holders of the Class P Certificates, by depositing such amount into the Collection Account. The foregoing shall not, however, limit any remedies available to the Certificateholders, the Depositor, the Trust Administrator Depositor or the Trustee on behalf of the Certificateholders Certificateholders, pursuant to the Mortgage Loan Purchase Agreement signed by the Master Servicer in its capacity as Originator, respecting a breach of the representations, warranties and covenants of the Master Servicer in its capacity as Originator contained in this Section 2.05the Mortgage Loan Purchase Agreement.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Asset Backed Certificates Series 2001-2), Pooling and Servicing Agreement (Option One Mort Ln Trust Asset Back Certs Ser 2001-3)
Representations, Warranties and Covenants of the Master Servicer. The Master Servicer hereby represents, warrants makes the following representations and covenants warranties to the Trust Depositor, the Securities Administrator and the Trustee, for the benefit of each of the Trustee, the Trust Administrator, the Certificateholders and to the Depositor that as of the Closing Date or as of such date specifically provided hereinDate:
(i) The Master Servicer is a corporation national banking association duly organized, chartered and validly existing and in good standing under the laws of the State United States of New York America and has all licenses necessary to carry on its business as now being conducted and is duly authorized licensed, qualified and qualified to transact any and all business contemplated by this Agreement to be conducted by in good standing in each of the Master Servicer in any state in which states where a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with if the doing business laws of any such State, state require licensing or qualification in order to conduct business of the extent necessary to ensure its ability to enforce each Mortgage Loan and to service type conducted by the Mortgage Loans in accordance with the terms of this Agreement;
(ii) Master Servicer. The Master Servicer has the full corporate power and authority to service each Mortgage Loan, execute and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary corporate action on the part of the Master Servicer to perform in accordance herewith; the execution, delivery and performance of this Agreement (including all instruments of transfer to be delivered pursuant to this Agreement; ) by the Master Servicer and this the consummation of the transactions contemplated hereby have been duly and validly authorized. This Agreement, assuming the due authorization, execution and delivery thereof by the other parties hereto, constitutes a legalevidences the valid, valid binding and binding enforceable obligation of the Master Servicer, enforceable against subject to applicable law except as enforceability may be limited by (A) bankruptcy, insolvency, liquidation, receivership, moratorium, reorganization or other similar laws affecting the enforcement of the rights of creditors and (B) general principles of equity, whether enforcement is sought in a proceeding in equity or at law. All requisite corporate action has been taken by the Master Servicer to make this Agreement valid and binding upon the Master Servicer in accordance with its terms.
(ii) No consent, except approval, authorization or order is required for the transactions contemplated by this Agreement from any court, governmental agency or body, or federal or state regulatory authority having jurisdiction over the Master Servicer is required or, if required, such consent, approval, authorization or order has been or will, prior to the extent that (a) the enforceability thereof may Closing Date, be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ rights generally and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought;obtained.
(iii) The execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunder, the consummation of any other of the transactions herein contemplated, and the fulfillment of or compliance with the terms hereof contemplated by this Agreement are in the ordinary course of business of the Master Servicer and will not (A) result in a the breach of any term or provision of the charter or by-laws of the Master Servicer or (B) conflict with, result in a breach, violation the breach of any term or acceleration provision of, or conflict with or constitute a default under or result in a default the acceleration of any obligation under, the terms of any other material agreement, indenture or loan or credit agreement or other instrument to which the Master Servicer or its property is a party or by which it may be boundsubject, or result in the violation of any statutelaw, order rule, regulation, order, judgment or regulation applicable decree to which the Master Servicer of any courtor its property is subject.
(iv) There is no action, regulatory bodysuit, administrative agency proceeding or governmental body having jurisdiction over the Master Servicer; and the Master Servicer 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 body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects investigation pending or, to the Master Servicer’s knowledge, would in the future materially and adversely affect, (x) the ability best knowledge of the Master Servicer, threatened against the Master Servicer to perform its obligations under this Agreement which, either individually or (y) in the aggregate, would result in any material adverse change in the business, operations, financial condition, properties or assets of the Master Servicer taken as a whole;
(iv) The Master Servicer is an approved seller/servicer for Fxxxxx Mxx Servicer, or Fxxxxxx Mac in good standing and is a HUD approved mortgagee pursuant to Section 203 any material impairment of the National Housing Act;
(v) No litigation is pending against right or ability of the Master Servicer that to carry on its business substantially as now conducted or which would materially and adversely affect draw into question the execution, delivery or enforceability validity of this Agreement or the Mortgage Loans or of any action taken or to be taken in connection with the obligations of the Master Servicer contemplated herein, or which would materially impair the ability of the Master Servicer to service the Mortgage Loans or to perform any of its other obligations hereunder in accordance with the terms hereof;
(vi) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the consummation of the transactions contemplated by this Agreement, except for such consents, approvals, authorizations or orders, if any, that have been obtained prior to the Closing Date;
(vii) The Master Servicer covenants that its computer and other systems used in servicing the Mortgage Loans operate in a manner such that the Master Servicer can service the Mortgage Loans in accordance with under the terms of this Agreement; and
(viii) . The Master Servicer (or a Sub-Servicer servicing the Mortgage Loans on its behalf) is a member of MERS in good standing, representations and will comply in all material respects with the rules and procedures of MERS in connection with the servicing of the Mortgage Loans that are registered with MERS. It is understood and agreed that the representations, warranties and covenants set forth in made pursuant to this Section 2.05 2.03 shall survive delivery of the respective Mortgage Files to the Trustee or to a Custodian on its behalf and shall inure to for the benefit of the Trustee, the Trust Administrator, the Depositor and the Certificateholders. Upon discovery by any of the Depositor, the Master Servicer, the Trust Administrator or the Trustee of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any Mortgage Loan or the interests therein of the Certificateholders, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the Trustee. Subject to Section 7.01, the obligation of the Master Servicer set forth in Section 2.03(c) to cure breaches shall constitute the sole remedies against the Master Servicer available to the Certificateholders, the Depositor, the Trust Administrator or the Trustee on behalf of the Certificateholders respecting a breach of the representations, warranties and covenants contained in this Section 2.05.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Banc of America Funding Corp. 2004-5 Trust), Pooling and Servicing Agreement (Banc of America Funding Corp. Mortgage Pass-Through Certificates Series 2004-2)
Representations, Warranties and Covenants of the Master Servicer. The Master Servicer hereby represents, warrants and covenants with and to the Trust Administrator and Depositor, the TrusteeIssuer, for Mego, the benefit of each of the Indenture Trustee, the Trust Administrator, Securities Insurer and the Certificateholders and to the Depositor that Securityholders as of the Closing Date or as of such date specifically provided hereinDate:
(ia) The Master Servicer is a corporation national banking association duly organized, organized and validly existing and in good standing under the laws of the State United States of New York America, with full power and authority to own its properties and conduct its business as such properties are presently owned and such business is duly authorized and qualified to transact any and all business contemplated by this Agreement to be conducted by the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to service the Mortgage Loans in accordance with the terms of this Agreementpresently conducted;
(iib) The Master Servicer has the full corporate power and authority to service each Mortgage Loan, and to execute, deliver and perform, and to enter into and consummate the all transactions contemplated by this Agreement and each other Transaction Document to which it is a party, has duly authorized by all necessary corporate action on the part of the Master Servicer the execution, delivery and performance of this Agreement; Agreement and each other Transaction Document to which it is a party, has duly executed and delivered this Agreement and each other Transaction Document to which it is a party, and this AgreementAgreement and each other Transaction Document to which it is a party, assuming the due authorizationwhen duly authorized, execution executed and delivery thereof delivered by the other parties heretothereto, constitutes will constitute a legal, valid and binding obligation of the Master Servicer, enforceable against the Master Servicer it in accordance with its terms, except to the extent that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ rights generally and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought;
(iiic) The Neither the execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by or any other Transaction Document to which the Master Servicer hereunderis a party, the consummation of any other the transactions required of the transactions Master Servicer herein contemplatedor therein, and nor the fulfillment of or compliance with the terms hereof are in the ordinary course and conditions of business of this Agreement or any other Transaction Document to which the Master Servicer and is a party will not (A) conflict with or result in a breach of any term or provision of the charter terms, conditions or by-laws provisions of the Master Servicer Servicer's charter or (B) conflict with, result in a breach, violation bylaws or acceleration of, any legal restriction or result in a default under, the terms of any other material agreement or instrument to which the Master Servicer is now a party or by which it may be is bound, or which would adversely affect the administration of the Trust as contemplated hereby, or constitute a material default or result in an acceleration under any statuteof the foregoing, order or regulation applicable result in the violation of any law, rule, regulation, order, judgment or decree to which the Master Servicer or its property is subject;
(d) The Master Servicer is not in default, and the execution and delivery of this Agreement and each other Transaction Document to which it is a party and its performance of and compliance with the terms hereof and thereof will not constitute a violation of, any law, any order or decree of any court, regulatory bodyor any order, administrative agency regulation or governmental body having jurisdiction over the Master Servicer; and the Master Servicer is not a party to, bound by, or in breach or violation demand of any indenture federal, state or local governmental or regulatory authority;
(e) No action, suit or other agreement proceeding or instrument, or subject to or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects investigation is pending or, to the Master Servicer’s 's knowledge, threatened before any court or any federal, state or local governmental or regulatory authority (A) asserting the invalidity of this Agreement or any other Transaction Document to which the Master Servicer is a party, (B) seeking to prevent the consummation of any of the transactions contemplated by this Agreement or any other Transaction Document to which the Master Servicer is a party, or (C) seeking any determination or ruling that would in the future materially and adversely affect, (x) affect the ability of the Master Servicer to perform its obligations under this Agreement or (y) the business, operations, financial condition, properties or assets of any other Transaction Document to which the Master Servicer taken as a whole;
(iv) The Master Servicer is an approved seller/servicer for Fxxxxx Mxx or Fxxxxxx Mac in good standing and is a HUD approved mortgagee pursuant to Section 203 party (including any threatened or pending action, suit, proceeding or investigation which might result in the suspension, revocation or modification of the National Housing ActContract of Insurance);
(v) No litigation is pending against the Master Servicer that would materially and adversely affect the execution, delivery or enforceability of this Agreement or the ability of the Master Servicer to service the Mortgage Loans or to perform any of its other obligations hereunder in accordance with the terms hereof;
(vi) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the consummation of the transactions contemplated by this Agreement, except for such consents, approvals, authorizations or orders, if any, that have been obtained prior to the Closing Date;
(vii) The Master Servicer covenants that its computer and other systems used in servicing the Mortgage Loans operate in a manner such that the Master Servicer can service the Mortgage Loans in accordance with the terms of this Agreement; and
(viii) The Master Servicer (or a Sub-Servicer servicing the Mortgage Loans on its behalf) is a member of MERS in good standing, and will comply in all material respects with the rules and procedures of MERS in connection with the servicing of the Mortgage Loans that are registered with MERS. It is understood and agreed that the representations, warranties and covenants set forth in this Section 2.05 shall survive delivery of the Mortgage Files to the Trustee or to a Custodian on its behalf and shall inure to the benefit of the Trustee, the Trust Administrator, the Depositor and the Certificateholders. Upon discovery by any of the Depositor, the Master Servicer, the Trust Administrator or the Trustee of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any Mortgage Loan or the interests therein of the Certificateholders, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the Trustee. Subject to Section 7.01, the obligation of the Master Servicer set forth in Section 2.03(c) to cure breaches shall constitute the sole remedies against the Master Servicer available to the Certificateholders, the Depositor, the Trust Administrator or the Trustee on behalf of the Certificateholders respecting a breach of the representations, warranties and covenants contained in this Section 2.05.
Appears in 2 contracts
Samples: Sale and Servicing Agreement (Mego Financial Corp), Sale and Servicing Agreement (Mego Mortgage Corp)
Representations, Warranties and Covenants of the Master Servicer. The Master Servicer hereby represents, warrants and covenants to the Trust Administrator and the Trustee, for the benefit of each of the Trustee, the Trust Administrator, the Certificateholders and to the Depositor that as of the Closing Date or as of such date specifically provided herein:
(i) The Master Servicer is a corporation duly organized, validly existing and in good standing under the laws of the State of New York Delaware and is duly authorized and qualified to transact any and all business contemplated by this Agreement to be conducted by the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to service the Mortgage Loans in accordance with the terms of this Agreement;
(ii) The Master Servicer has the full corporate power and authority to service each Mortgage Loan, and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary corporate action on the part of the Master Servicer the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties heretoDepositor and the Trustee, constitutes a legal, valid and binding obligation of the Master Servicer, enforceable against the Master Servicer in accordance with its terms, except to the extent that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ ' rights generally and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought;
(iii) The execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunder, the consummation of any other of the transactions herein contemplated, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Master Servicer and will not (A) result in a breach of any term or provision of the charter or by-laws of the Master Servicer or (B) conflict with, result in a breach, violation or acceleration of, or result in a default under, the terms of any other material agreement or instrument to which the Master Servicer is a party or by which it may be bound, or any statute, order or regulation applicable to the Master Servicer of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Master Servicer; and the Master Servicer 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 body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects or, to the Master Servicer’s 's knowledge, would in the future materially and adversely affect, (x) the ability of the Master Servicer to perform its obligations under this Agreement or (y) the business, operations, financial condition, properties or assets of the Master Servicer taken as a whole;
(iv) The Master Servicer is an approved seller/servicer for Fxxxxx Fannie Mae or Freddie Mxx or Fxxxxxx Mac in good standing and xx gxxx staxxxxx xnd is a HUD approved mortgagee pursuant to Section 203 and Section 211 of the National Housing Act;
(v) No Except as disclosed in the Prospectus Supplement, no litigation is pending against the Master Servicer that would materially and adversely affect the execution, delivery or enforceability of this Agreement or the ability of the Master Servicer to service the Mortgage Loans or to perform any of its other obligations hereunder in accordance with the terms hereof;
(vi) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the consummation of the transactions contemplated by this Agreement, except for such consents, approvals, authorizations or orders, if any, that have been obtained prior to the Closing Date;
(vii) The Master Servicer covenants that its computer information set forth in the Prepayment Charge Schedule attached hereto as Schedule 2 (including the prepayment charge summary attached thereto) is complete, true and other systems used correct in servicing all material respects at the Mortgage Loans operate in a manner date or dates respecting which such that the Master Servicer can service the Mortgage Loans information is furnished and each Prepayment Charge is permissible and enforceable in accordance with its terms (except to the terms of this Agreement; andextent that (i) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally and (ii) the collectability thereof may be limited due to acceleration in connection with a foreclosure or other involuntary payment;
(viii) The Master Servicer will not waive any Prepayment Charge or part of a Prepayment Charge unless, (i) the enforceability thereof shall have been limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally or (ii) the collectability thereof shall have been limited due to acceleration in connection with a foreclosure or other involuntary payment or (iii) in the Master Servicer's reasonable judgment as described in Section 3.01 hereof, (x) such waiver relates to a default or a Sub-Servicer reasonably foreseeable default, (y) such waiver would maximize recovery of total proceeds taking into account the value of such Prepayment Charge and related Mortgage Loan and (z) doing so is standard and customary in servicing the similar Mortgage Loans on (including any waiver of a Prepayment Charge in connection with a refinancing of a Mortgage Loan that is related to a default or a reasonably foreseeable default). In no event will the Master Servicer waive a Prepayment Charge in connection with a refinancing of a Mortgage Loan that is not related to a default or a reasonably foreseeable default;
(ix) The information set forth in the "monthly tape" provided to the Trustee or any of its behalf) affiliates is a member of MERS in good standing, true and will comply correct in all material respects respects;
(x) With respect to each Mortgage Loan, the Assignment is in recordable form; (except that the name of the assignee and the recording information with respect to such Mortgage Loan is blank) and each Mortgage Loan was originated in the name of the Master Servicer or an affiliate thereof; and
(xi) The Master Servicer will fully furnish, in accordance with the rules Fair Credit Reporting Act and procedures of MERS in connection with the servicing of the Mortgage Loans that are registered with MERSits implementing regulations, accurate and complete information (e.g., favorable and unfavorable) on its borrower credit files to Equifax, Experian and Trans Union Credit Information Company or their successors on a monthly basis. It is understood and agreed that the representations, warranties and covenants set forth in this Section 2.05 shall survive delivery of the Mortgage Files to the Trustee or to a Custodian on its behalf Custodian, as the case may be, and shall inure to the benefit of the Trustee, the Trust Administrator, the Depositor and the Certificateholders. Upon discovery by any of the Depositor, the Master ServicerNIMS Insurer, the Trust Administrator Master Servicer or the Trustee of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any Mortgage Loan Loan, Prepayment Charge or the interests therein of the Certificateholders, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the NIMS Insurer and the Trustee. Subject to Section 7.01, the obligation of the Master Servicer set forth in Section 2.03(c2.03(b) to cure breaches (or in the case of the representations, warranties and covenants set forth in Section 2.05(vii) and Section 2.05(viii) above, to otherwise remedy such breaches pursuant to Section 2.03(b)) shall constitute the sole remedies against the Master Servicer available to the Certificateholders, the Depositor, the Trust Administrator Depositor or the Trustee on behalf of the Certificateholders respecting a breach of the representations, warranties and covenants contained in this Section 2.05. The preceding sentence shall not, however, limit any remedies available to the Certificateholders, the Depositor or the Trustee on behalf of the Certificateholders (other than in the case of the representations, warranties and covenants set forth in Section 2.05(vii) and Section 2.05(viii) above) pursuant to the Mortgage Loan Purchase Agreement signed by the Master Servicer in its capacity as Originator, respecting a breach of the representations, warranties and covenants of the Master Servicer in its capacity as Originator contained in such Mortgage Loan Purchase Agreement.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Ameriquest Mort Sec Inc Asset BCKD Ps THR Cert Ser 2002-Ar1), Pooling and Servicing Agreement (Ameriquest Mort Sec Inc Asset BCKD Ps THR Cert Ser 2002-Ar1)
Representations, Warranties and Covenants of the Master Servicer. The Master Servicer hereby represents, warrants and covenants to the Trust Administrator and the Trustee, for the benefit of each of the Trustee, the Trust Administrator, the Certificateholders and to the Depositor that as of the Closing Date or as of such date specifically provided herein:
(i) The Master Servicer is a corporation duly organized, validly existing and in good standing under the laws of the State of New York California and is duly authorized and qualified to transact any and all business contemplated by this Agreement to be conducted by the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to service the Mortgage Loans in accordance with the terms of this Agreement;
(ii) The Master Servicer has the full corporate power and authority to service each Mortgage Loan, conduct its business as presently conducted by it and to execute, deliver and perform, and to enter into and consummate the consummate, all transactions contemplated by this Agreement and Agreement. The Master Servicer has duly authorized by all necessary corporate action on the part of the Master Servicer the execution, delivery and performance of this Agreement; , has duly executed and delivered this Agreement, and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties heretoDepositor and the Trustee, constitutes a legal, valid and binding obligation of the Master Servicer, enforceable against the Master Servicer it in accordance with its terms, terms except to the extent that (a) as the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other reorganization or similar laws relating to affecting the enforcement of creditors’ ' rights generally and (b) the remedy by general principles of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be broughtequity;
(iii) The execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunder, the consummation by the Master Servicer of any other of the transactions herein contemplated, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Master Servicer and will not (A) result in a breach of any term or provision of the charter or by-laws of the Master Servicer or (B) conflict with, result in a breach, violation or acceleration of, or result in a default under, the terms of any other material agreement or instrument to which the Master Servicer is a party or by which it may be bound, or any statute, order or regulation applicable to the Master Servicer of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Master Servicer; and the Master Servicer 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 body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects or, to the Master Servicer’s 's knowledge, would in the future materially and adversely affect, (x) the ability of the Master Servicer to perform its obligations under this Agreement or (y) the business, operations, financial condition, properties or assets of the Master Servicer taken as a whole;
(iv) The Master Servicer is an approved seller/servicer for Fxxxxx Mxx or Fxxxxxx Mac in good standing and is a HUD approved mortgagee pursuant to Section 203 of the National Housing Act. No event has occurred, including but not limited to a change in insurance coverage, that would make the Master Servicer unable to comply with HUD eligibility requirements or that would require notification to HUD;
(v) No litigation is pending against The Master Servicer does not believe, nor does it have any reason or cause to believe, that it cannot perform each and every covenant made by it and contained in this Agreement, it being understood that certain of such covenants shall be performed by a Sub-Servicer pursuant to a Sub-Servicing Agreement between the Master Servicer and such Sub-Servicer in accordance with Section 3.02;
(vi) With respect to each Mortgage Loan, the Master Servicer, or Sub- Servicer, is in possession of a complete Mortgage File, except for such documents as have been delivered to the Trustee;
(vii) There are no actions or proceedings against, or investigations known to it of, the Master Servicer before any court, administrative or other tribunal (A) that would might prohibit its entering into this Agreement, (B) seeking to prevent the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the execution, delivery or enforceability of this Agreement or the ability of performance by the Master Servicer to service the Mortgage Loans or to perform any of its other obligations hereunder in accordance with the terms hereof;under, or validity or enforceability of, this Agreement; and
(viviii) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the consummation by it of the transactions contemplated by this Agreement, except for such consents, approvals, authorizations or orders, if any, that have been obtained prior to the Closing Date;
(vii) The Master Servicer covenants that its computer and other systems used in servicing the Mortgage Loans operate in a manner such that the Master Servicer can service the Mortgage Loans in accordance with the terms of this Agreement; and
(viii) The Master Servicer (or a Sub-Servicer servicing the Mortgage Loans on its behalf) is a member of MERS in good standing, and will comply in all material respects with the rules and procedures of MERS in connection with the servicing of the Mortgage Loans that are registered with MERS. It is understood and agreed that the representations, warranties and covenants set forth in this Section 2.05 shall survive delivery of the Mortgage Files to the Trustee or to a Custodian on its behalf and shall inure to the benefit of the Trustee, the Trust Administrator, the Depositor and the Certificateholders. Upon discovery by any of the Depositor, the Master Servicer, the Trust Administrator Servicer or the Trustee of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any Mortgage Loan or the interests therein of the Certificateholders, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the Trustee. Subject to Section 7.01, unless such breach shall not be susceptible of cure within 90 days, the obligation of the Master Servicer set forth in Section 2.03(c) to cure breaches shall constitute the sole remedies remedy against the Master Servicer available to the Certificateholders, the Depositor, the Trust Administrator Depositor or the Trustee on behalf of the Certificateholders respecting a breach of the representations, warranties and covenants contained in this Section 2.05. The preceding sentence shall not, however, limit any remedies available to the Certificateholders, the Depositor or the Trustee on behalf of the Certificateholders, pursuant to the Mortgage Loan Purchase Agreement signed by the Master Servicer in its capacity as Seller, respecting a breach of the representations, warranties and covenants of the Master Servicer in its capacity as Seller contained in the Mortgage Loan Purchase Agreement.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (New Century Asset Backed Fl Rt Cert Sers 1997-Nc5), Pooling and Servicing Agreement (New Century Asset Backed Floating Rate Cert Ser 1998-Nc1)
Representations, Warranties and Covenants of the Master Servicer. The Master Servicer hereby represents, warrants and covenants to the Trust Administrator and the Trustee, for the benefit of each of the Trustee, the Trust AdministratorCertificateholders, the Certificateholders Certificate Insurer and to the Depositor that as of the Closing Date or as of such date specifically provided herein:
(i) The Master Servicer is a corporation duly organized, validly existing and in good standing under the laws of the State of New York Delaware and is duly authorized and qualified to transact any and all business contemplated by this Agreement to be conducted by the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to service the Mortgage Loans in accordance with the terms of this Agreement;
(ii) The Master Servicer has the full corporate power and authority to service each Mortgage Loan, and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary corporate action on the part of the Master Servicer the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties heretoDepositor and the Trustee, constitutes a legal, valid and binding obligation of the Master Servicer, enforceable against the Master Servicer in accordance with its terms, except to the extent that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ ' rights generally and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought;
(iii) The execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunder, the consummation of any other of the transactions herein contemplated, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Master Servicer and will not (A) result in a breach of any term or provision of the charter or by-laws of the Master Servicer or (B) conflict with, result in a breach, violation or acceleration of, or result in a default under, the terms of any other material agreement or instrument to which the Master Servicer is a party or by which it may be bound, or any statute, order or regulation applicable to the Master Servicer of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Master Servicer; and the Master Servicer 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 body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects or, to the Master Servicer’s 's knowledge, would in the future materially and adversely affect, (x) the ability of the Master Servicer to perform its obligations under this Agreement or (y) the business, operations, financial condition, properties or assets of the Master Servicer taken as a whole;
(iv) The Master Servicer is an approved seller/servicer for Fxxxxx Mxx FNMA or Fxxxxxx Mac FHLMC in good standing and is a HUD approved mortgagee pursuant to Section 203 of the National Housing Act;
(v) No litigation is pending against the Master Servicer that would materially and adversely affect the execution, delivery or enforceability of this Agreement or the ability of the Master Servicer to service the Mortgage Loans or to perform any of its other obligations hereunder in accordance with the terms hereof;; and
(vi) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the consummation of the transactions contemplated by this Agreement, except for such consents, approvals, authorizations or orders, if any, that have been obtained prior to the Closing Date;
(vii) The Master Servicer covenants that its computer and other systems used in servicing the Mortgage Loans operate in a manner such that the Master Servicer can service the Mortgage Loans in accordance with the terms of this Agreement; and
(viii) The Master Servicer (or a Sub-Servicer servicing the Mortgage Loans on its behalf) is a member of MERS in good standing, and will comply in all material respects with the rules and procedures of MERS in connection with the servicing of the Mortgage Loans that are registered with MERS. It is understood and agreed that the representations, warranties and covenants set forth in this Section 2.05 shall survive delivery of the Mortgage Files to the Trustee or to a Custodian on its behalf Custodian, as the case may be, and shall inure to the benefit of the Trustee, the Trust AdministratorDepositor, the Depositor Certificateholders and the CertificateholdersCertificate Insurer. Upon discovery by any of the Depositor, the Master Servicer, the Trust Administrator Servicer or the Trustee of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any Mortgage Loan or the interests therein of the CertificateholdersCertificateholders or the Certificate Insurer, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the TrusteeTrustee and the Certificate Insurer. Subject to Section 7.01, the The obligation of the Master Servicer set forth in Section 2.03(c) to cure breaches shall constitute the sole remedies against the Master Servicer available to the Certificateholders, the Depositor, the Trust Administrator Depositor or the Trustee on behalf of the Certificateholders respecting a breach of the representations, warranties and covenants contained in this Section 2.05. The preceding sentence shall not, however, limit any remedies available to the Certificateholders, the Depositor or the Trustee on behalf of the Certificateholders, pursuant to the Mortgage Loan Purchase Agreement signed by the Master Servicer in its capacity as Originator, respecting a breach of the representations, warranties and covenants of the Master Servicer in its capacity as Originator contained in such Mortgage Loan Purchase Agreement.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Salomon Brothers Mort Sec Vii Asset Backed Cert 1996-Lb2), Pooling and Servicing Agreement (Salomon Broth Mor Sec Vii Asset Bac Float Rt Cer Se 1997 Lb1)
Representations, Warranties and Covenants of the Master Servicer. The Master Servicer hereby represents, warrants and covenants to the Trust Administrator and the Trustee, for the benefit of each of the Trustee, the Trust Administrator, the Certificateholders and to the Depositor that as of the Closing Date or as of such date specifically provided herein:
(i) The Master Servicer is a corporation duly organized, validly existing and in good standing under the laws of the State of New York Jersey and is duly authorized and qualified to transact any and all business contemplated by this Agreement to be conducted by the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to service the Mortgage Loans in accordance with the terms of this Agreement;
(ii) The Master Servicer has the full corporate power and authority to service each Mortgage Loan, and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary corporate action on the part of the Master Servicer the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties heretoDepositor and the Trustee, constitutes a legal, valid and binding obligation of the Master Servicer, enforceable against the Master Servicer in accordance with its terms, except to the extent that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ ' rights generally and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought;
(iii) The execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunder, the consummation of any other of the transactions herein contemplated, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Master Servicer and will shall not (A) result in a breach of any term or provision of the charter or by-laws organizational documents of the Master Servicer or (B) conflict with, result in a breach, violation or acceleration of, or result in a default under, the terms of any other material agreement or instrument to which the Master Servicer is a party or by which it may be bound, or any statute, order or regulation applicable to the Master Servicer of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Master Servicer; and the Master Servicer 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 body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects or, to the Master Servicer’s 's knowledge, would in the future materially and adversely affect, (x) the ability of the Master Servicer to perform its obligations under this Agreement or (y) the business, operations, financial condition, properties or assets of the Master Servicer taken as a whole;
(iv) The Master Servicer is an approved seller/servicer for Fxxxxx Mxx Fannie Mae or Fxxxxxx Freddie Mac in good standing and is ix xxxx xxxndinx xxx xs a HUD approved mortgagee pursuant to Section 203 and Section 211 of the National Housing Act;
(v) No litigation is pending against the Master Servicer that would materially and adversely affect the execution, delivery or enforceability of this Agreement or the ability of the Master Servicer to service the Mortgage Loans or to perform any of its other obligations hereunder in accordance with the terms hereof;
(vi) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the consummation of the transactions contemplated by this Agreement, except for such consents, approvals, authorizations or orders, if any, that have been obtained prior to the Closing Date;
(vii) The Master Servicer covenants that its computer and other systems used in servicing the Mortgage Loans operate in a manner such that the Master Servicer can service the Mortgage Loans in accordance with the terms of this Agreement; and
(viii) The Master Servicer (or a Sub-Servicer servicing the Mortgage Loans on its behalf) is a member of MERS in good standing, and will comply in all material respects with the rules and procedures of MERS in connection with the servicing of the Mortgage Loans that are registered with MERS. It is understood and agreed that the representations, warranties and covenants set forth in this Section 2.05 shall survive delivery of the Mortgage Files to the Trustee or to a Custodian on its behalf and shall inure to the benefit of the Trustee, the Trust Administrator, the Depositor and the Certificateholders. Upon discovery by any of the Depositor, the Master Servicer, the Trust Administrator or the Trustee of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any Mortgage Loan or the interests therein of the Certificateholders, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the Trustee. Subject to Section 7.01, the obligation of the Master Servicer set forth in Section 2.03(c) to cure breaches shall constitute the sole remedies against the Master Servicer available to the Certificateholders, the Depositor, the Trust Administrator or the Trustee on behalf of the Certificateholders respecting a breach of the representations, warranties and covenants contained in this Section 2.05.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Park Place Securities, Inc., Asset-Backed Pass-Through Certificates, Series 2004-Whq2), Pooling and Servicing Agreement (Park Place Securities, Inc., Asset-Backed Pass-Through Certificates, Series 2004-Whq2)
Representations, Warranties and Covenants of the Master Servicer. The Master Servicer hereby represents, warrants makes the following representations and covenants warranties to the Trust Administrator Depositor and the Trustee, for the benefit of each of the Trustee, the Trust Administrator, the Certificateholders and to the Depositor that as of the Closing Date or as of such date specifically provided hereinDate:
(i) The Master Servicer is a corporation duly organized, validly existing existing, and in good standing under the laws of the State state of New York Delaware and has all licenses necessary to carry on its business as now being conducted and is duly authorized licensed, qualified and qualified to transact any and all business contemplated by this Agreement to be conducted by in good standing in each of the Master Servicer in any state in which states where a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with if the doing business laws of any such State, state require licensing or qualification in order to conduct business of the extent necessary to ensure its ability to enforce each Mortgage Loan and to service type conducted by the Mortgage Loans in accordance with the terms of this Agreement;
(ii) Master Servicer. The Master Servicer has the full corporate power and authority to service each Mortgage Loan, execute and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary corporate action on the part of the Master Servicer to perform in accordance herewith; the execution, delivery and performance of this Agreement (including all instruments of transfer to be delivered pursuant to this Agreement; ) by the Master Servicer and this the consummation of the transactions contemplated hereby have been duly and validly authorized. This Agreement, assuming the due authorization, execution and delivery thereof by the other parties hereto, constitutes a legalevidences the valid, valid binding and binding enforceable obligation of the Master Servicer, enforceable against subject to applicable law except as enforceability may be limited by (A) bankruptcy, insolvency, liquidation, receivership, moratorium, reorganization or other similar laws affecting the enforcement of creditors' rights generally or creditors of national banks and (B) general principles of equity, whether enforcement is sought in a proceeding in equity or at law. All requisite corporate action has been taken by the Master Servicer to make this Agreement valid and binding upon the Master Servicer in accordance with its terms.
(ii) No consent, except approval, authorization or order is required for the transactions contemplated by this Agreement from any court, governmental agency or body, or federal or state regulatory authority having jurisdiction over the Master Servicer is required or, if required, such consent, approval, authorization or order has been or will, prior to the extent that (a) the enforceability thereof may Closing Date, be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ rights generally and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought;obtained.
(iii) The execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunder, the consummation of any other of the transactions herein contemplated, and the fulfillment of or compliance with the terms hereof contemplated by this Agreement are in the ordinary course of business of the Master Servicer and will not (A) result in a the breach of any term or provision of the charter certificate of incorporation or by-laws of the Master Servicer or (B) conflict with, result in a breach, violation the breach of any term or acceleration provision of, or conflict with or constitute a default under or result in a default the acceleration of any obligation under, the terms of any other material agreement, indenture or loan or credit agreement or other instrument to which the Master Servicer or its property is a party or by which it may be boundsubject, or result in the violation of any statutelaw, order rule, regulation, order, judgment or regulation applicable decree to which the Master Servicer of any courtor its property is subject.
(iv) There is no action, regulatory bodysuit, administrative agency proceeding or governmental body having jurisdiction over the Master Servicer; and the Master Servicer 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 body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects investigation pending or, to the Master Servicer’s knowledge, would in the future materially and adversely affect, (x) the ability best knowledge of the Master Servicer, threatened against the Master Servicer to perform its obligations under this Agreement which, either individually or (y) in the aggregate, would result in any material adverse change in the business, operations, financial condition, properties or assets of the Master Servicer taken as a whole;
(iv) The Master Servicer is an approved seller/servicer for Fxxxxx Mxx Servicer, or Fxxxxxx Mac in good standing and is a HUD approved mortgagee pursuant to Section 203 any material impairment of the National Housing Act;
(v) No litigation is pending against right or ability of the Master Servicer that to carry on its business substantially as now conducted or which would materially and adversely affect draw into question the execution, delivery or enforceability validity of this Agreement or the Mortgage Loans or of any action taken or to be taken in connection with the obligations of the Master Servicer contemplated herein, or which would materially impair the ability of the Master Servicer to service the Mortgage Loans or to perform any of its other obligations hereunder in accordance with the terms hereof;
(vi) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the consummation of the transactions contemplated by this Agreement, except for such consents, approvals, authorizations or orders, if any, that have been obtained prior to the Closing Date;
(vii) The Master Servicer covenants that its computer and other systems used in servicing the Mortgage Loans operate in a manner such that the Master Servicer can service the Mortgage Loans in accordance with under the terms of this Agreement; and
(viii) The Master Servicer (or a Sub-Servicer servicing the Mortgage Loans on its behalf) is a member of MERS in good standing, and will comply in all material respects with the rules and procedures of MERS in connection with the servicing of the Mortgage Loans that are registered with MERS. It is understood and agreed that the representations, warranties and covenants set forth in this Section 2.05 shall survive delivery of the Mortgage Files to the Trustee or to a Custodian on its behalf and shall inure to the benefit of the Trustee, the Trust Administrator, the Depositor and the Certificateholders. Upon discovery by any of the Depositor, the Master Servicer, the Trust Administrator or the Trustee of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any Mortgage Loan or the interests therein of the Certificateholders, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the Trustee. Subject to Section 7.01, the obligation of the Master Servicer set forth in Section 2.03(c) to cure breaches shall constitute the sole remedies against the Master Servicer available to the Certificateholders, the Depositor, the Trust Administrator or the Trustee on behalf of the Certificateholders respecting a breach of the representations, warranties and covenants contained in this Section 2.05.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Banc of America Funding MTG Pass Thru Certs Ser 2003-3), Pooling and Servicing Agreement (Banc of America Funding Corp. Mortgage Pass-Through Certificates Series 2004-3)
Representations, Warranties and Covenants of the Master Servicer. The Master Servicer hereby represents, warrants and covenants to the Trust Administrator and the Trustee, for the benefit of each of the Trustee, the Trust Administrator, the Certificateholders and to the Depositor that as of the Closing Date or as of such date specifically provided herein:
(i) The Master Servicer is a corporation duly organized, validly existing and in good standing under the laws of the State of New York Delaware and is duly authorized and qualified to transact any and all business contemplated by this Agreement to be conducted by the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to service the Mortgage Loans in accordance with the terms of this Agreement;
(ii) The Master Servicer has the full corporate power and authority to service each Mortgage Loan, and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary corporate action on the part of the Master Servicer the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties heretoDepositor and the Trustee, constitutes a legal, valid and binding obligation of the Master Servicer, enforceable against the Master Servicer in accordance with its terms, except to the extent that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ ' rights generally and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought;
(iii) The execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunder, the consummation of any other of the transactions herein contemplated, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Master Servicer and will shall not (A) result in a breach of any term or provision of the charter or by-laws of the Master Servicer or (B) conflict with, result in a breach, violation or acceleration of, or result in a default under, the terms of any other material agreement or instrument to which the Master Servicer is a party or by which it may be bound, or any statute, order or regulation applicable to the Master Servicer of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Master Servicer; and the Master Servicer 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 body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects or, to the Master Servicer’s 's knowledge, would in the future materially and adversely affect, (x) the ability of the Master Servicer to perform its obligations under this Agreement or (y) the business, operations, financial condition, properties or assets of the Master Servicer taken as a whole;
(iv) The Master Servicer is an approved seller/servicer for Fxxxxx Mxx Fannie Mae or Fxxxxxx Freddie Mac in good standing and is xxxx xtxxxing xxx xx a HUD approved mortgagee pursuant to Section 203 and Section 211 of the National Housing Act;
(v) No Except as disclosed in the Prospectus Supplement, no litigation is pending against the Master Servicer that would materially and adversely affect the execution, delivery or enforceability of this Agreement or the ability of the Master Servicer to service the Mortgage Loans or to perform any of its other obligations hereunder in accordance with the terms hereof;
(vi) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the consummation of the transactions contemplated by this Agreement, except for such consents, approvals, authorizations or orders, if any, that have been obtained prior to the Closing Date;
(vii) The Master Servicer covenants that its computer and other systems used in servicing the Mortgage Loans operate in a manner such that the Master Servicer can service the Mortgage Loans in accordance with the terms of this Agreement; and[Reserved];
(viii) The Master Servicer shall not waive any Prepayment Charge or part of a Prepayment Charge unless, (i) the enforceability thereof shall have been limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally or a Sub-Servicer servicing (ii) the Mortgage Loans on its behalf) is a member of MERS in good standing, and will comply in all material respects with the rules and procedures of MERS collectability thereof shall have been limited due to acceleration in connection with a foreclosure or other involuntary payment or (iii) in the Master Servicer's reasonable judgment as described in Section 3.01 hereof, (x) such waiver relates to a default or a reasonably foreseeable default, (y) such waiver would maximize recovery of total proceeds taking into account the value of such Prepayment Charge and related Mortgage Loan and (z) doing so is standard and customary in servicing of the similar Mortgage Loans (including any waiver of a Prepayment Charge in connection with a refinancing of a Mortgage Loan that are registered is related to a default or a reasonably foreseeable default). In no event shall the Master Servicer waive a Prepayment Charge in connection with MERS. It a refinancing of a Mortgage Loan that is understood and agreed that the representations, warranties and covenants not related to a default or a reasonably foreseeable default;
(ix) The information set forth in this Section 2.05 shall survive delivery of the Mortgage Files "monthly tape" provided to the Trustee or any of its affiliates is true and correct in all material respects;
(x) With respect to a Custodian on its behalf and shall inure to each Mortgage Loan, the benefit Assignment is in recordable form; (except that the name of the Trustee, the Trust Administrator, the Depositor assignee and the Certificateholders. Upon discovery by any of the Depositor, the Master Servicer, the Trust Administrator or the Trustee of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any recording information with respect to such Mortgage Loan or the interests therein of the Certificateholders, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the Trustee. Subject to Section 7.01, the obligation of the Master Servicer set forth in Section 2.03(c) to cure breaches shall constitute the sole remedies against the Master Servicer available to the Certificateholders, the Depositor, the Trust Administrator or the Trustee on behalf of the Certificateholders respecting a breach of the representations, warranties and covenants contained in this Section 2.05.is blank);
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Asset-Backed Pass-Through Certificates Series 2003-W7), Pooling and Servicing Agreement (Argent Securities Inc Asset Backed Pass THR Cert Ser 2003-W8)
Representations, Warranties and Covenants of the Master Servicer. The Master Servicer hereby represents, warrants and covenants to the Trust Administrator and the Trustee, for the benefit of each of the Trustee, the Trust Administrator, the Certificateholders and to the Depositor that as of the Closing Date or as of such date specifically provided herein:
(i) The Master Servicer is a corporation duly organized, validly existing and in good standing under the laws of the State of New York California and is duly authorized and qualified to transact any and all business contemplated by this Agreement to be conducted by the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to service the Mortgage Loans in accordance with the terms of this Agreement;
(ii) The Master Servicer has the full corporate power and authority to service each Mortgage Loan, conduct its business as presently conducted by it and to execute, deliver and perform, and to enter into and consummate the consummate, all transactions contemplated by this Agreement and Agreement. The Master Servicer has duly authorized by all necessary corporate action on the part of the Master Servicer the execution, delivery and performance of this Agreement; , has duly executed and delivered this Agreement, and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties heretoDepositor and the Trustee, constitutes a legal, valid and binding obligation of the Master Servicer, enforceable against the Master Servicer it in accordance with its terms, terms except to the extent that (a) as the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other reorganization or similar laws relating to affecting the enforcement of creditors’ ' rights generally and (b) the remedy by general principles of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be broughtequity;
(iii) The execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunder, the consummation by the Master Servicer of any other of the transactions herein contemplated, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Master Servicer and will not (A) result in a breach of any term or provision of the charter or by-laws of the Master Servicer or (B) conflict with, result in a breach, violation or acceleration of, or result in a default under, the terms of any other material agreement or instrument to which the Master Servicer is a party or by which it may be bound, or any statute, order or regulation applicable to the Master Servicer of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Master Servicer; and the Master Servicer 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 body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects or, to the Master Servicer’s 's knowledge, would in the future materially and adversely affect, (x) the ability of the Master Servicer to perform its obligations under this Agreement or (y) the business, operations, financial condition, properties or assets of the Master Servicer taken as a whole;
(iv) The Master Servicer is an approved seller/servicer for Fxxxxx Mxx or Fxxxxxx Mac in good standing and is a HUD approved mortgagee pursuant to Section 203 of the National Housing Act. No event has occurred, including but not limited to a change in insurance coverage, that would make the Master Servicer unable to comply with HUD eligibility requirements or that would require notification to HUD;
(v) The Master Servicer does not believe, nor does it have any reason or cause to believe, that it cannot perform each and every covenant made by it and contained in this Agreement;
(vi) With respect to each Mortgage Loan, the Master Servicer, or Sub- Servicer if any, is in possession of a complete Mortgage File, except for such documents as have been delivered to the Trustee;
(vii) No litigation is pending against the Master Servicer that would materially and adversely affect the execution, delivery deliver or enforceability of this Agreement or the ability of the Master Servicer to service the Mortgage Loans or to perform any of its other obligations hereunder in accordance with the terms hereof;
(viviii) There are no actions or proceedings against, or investigations known to it of, the Master Servicer before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by the Master Servicer of its obligations under, or validity or enforceability of, this Agreement;
(ix) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the consummation by it of the transactions contemplated by this Agreement, except for such consents, approvals, authorizations or orders, if any, that have been obtained prior to the Closing Date;
(viix) The information set forth in the Prepayment Charge Schedule (including the prepayment charge summary attached thereto) is complete, true and correct in all material respects on the date or dates when such information is furnished and each Prepayment Charge is permissible and enforceable in accordance with its terms (except to the extent that the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally or the collectability thereof may be limited due to acceleration in connection with a foreclosure) under applicable state law; and
(xi) The Master Servicer covenants that its computer and other systems used in servicing the Mortgage Loans operate in a manner such that the Master Servicer can service the Mortgage Loans will not waive any Prepayment Charge unless it is waived in accordance with the terms of this Agreement; and
(viii) The Master Servicer (or a Sub-Servicer servicing the Mortgage Loans on its behalf) is a member of MERS standard set forth in good standing, and will comply in all material respects with the rules and procedures of MERS in connection with the servicing of the Mortgage Loans that are registered with MERSSection 3.01. It is understood and agreed that the representations, warranties and covenants set forth in this Section 2.05 shall survive delivery of the Mortgage Files to the Trustee or to a Custodian on its behalf and shall inure to the benefit of the Trustee, the Trust Administrator, the Depositor and the Certificateholders. Upon discovery by any of the Depositor, the Master Servicer, the Trust Administrator Servicer or the Trustee of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any Mortgage Loan Loan, Prepayment Charge or the interests therein of the Certificateholders, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the Trustee. Subject to Section 7.01, unless such breach shall not be susceptible of cure within 90 days, the obligation of the Master Servicer set forth in Section 2.03(c) to cure breaches shall constitute the sole remedies remedy against the Master Servicer available to the Certificateholders, the Depositor, the Trust Administrator Depositor or the Trustee on behalf of the Certificateholders respecting a breach of the representations, warranties and covenants contained in this Section 2.05. Notwithstanding the foregoing, within 90 days of the earlier of discovery by the Master Servicer or receipt of notice by the Master Servicer of the breach of the representation or covenant of the Master Servicer set forth in Sections 2.05(x) or 2.05(xi) above which materially and adversely affects the interests of the Holders of the Class P Certificates in any Prepayment Charge, the Master Servicer shall remedy such breach as follows: (a) if the representation made by the Master Servicer in Section 2.05(x) above is breached and a Principal Prepayment has occurred in the applicable Prepayment Period, the Master Servicer must pay the amount of the scheduled Prepayment Charge, for the benefit of the holder of the Class P Certificate, by depositing such amount into the Collection Account, net of any amount previously collected by the Master Servicer or paid by the Master Servicer, for the benefit of the Holders of the Class P Certificates, in respect of such Prepayment Charge; and (b) if any of the covenants made by the Master Servicer in Section 2.05(xi) above is breached, the Master Servicer must pay the amount of such waived Prepayment Charge, for the benefit of the holders of the Class P Certificates, by depositing such amount into the Collection Account. The foregoing shall not, however, limit any remedies available to the Certificateholders, the Depositor or the Trustee on behalf of the Certificateholders, pursuant to the Mortgage Loan Purchase Agreement signed by the Master Servicer in its capacity as Seller, respecting a breach of the representations, warranties and covenants of the Master Servicer in its capacity as Seller contained in the Mortgage Loan Purchase Agreement.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Salomon Bros Mort Sec Vii Inc Ast Bk Fl Rte Cer Se 1998-Nc6), Pooling and Servicing Agreement (Salomon Bros Mort Sec Vii Inc Ast Bk Fl Rte Cer Se 1998 -Nc4)
Representations, Warranties and Covenants of the Master Servicer. The Master Servicer hereby represents, warrants and covenants to the Trust Administrator and the Trustee, for the benefit of each of the Trustee, the Trust AdministratorCertificateholders, the Certificateholders Certificate Insurer and to the Depositor that as of the Closing Date or as of such date specifically provided herein:
(i) The Master Servicer is a corporation duly organized, validly existing and in good standing under the laws of the State of New York Delaware and is duly authorized and qualified to transact any and all business contemplated by this Agreement to be conducted by the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to service the Mortgage Loans in accordance with the terms of this Agreement;
(ii) The Master Servicer has the full corporate power and authority to service each Mortgage Loan, and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary corporate action on the part of the Master Servicer the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties heretoDepositor and the Trustee, constitutes a legal, valid and binding obligation of the Master Servicer, enforceable against the Master Servicer in accordance with its terms, except to the extent that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ ' rights generally and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought;
(iii) The execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunder, the consummation of any other of the transactions herein contemplated, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Master Servicer and will not (A) result in a breach of any term or provision of the charter or by-laws of the Master Servicer or (B) conflict with, result in a breach, violation or acceleration of, or result in a default under, the terms of any other material agreement or instrument to which the Master Servicer is a party or by which it may be bound, or any statute, order or regulation applicable to the Master Servicer of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Master Servicer; and the Master Servicer 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 body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects or, to the Master Servicer’s 's knowledge, would in the future materially and adversely affect, (x) the ability of the Master Servicer to perform its obligations under this Agreement or (y) the business, operations, financial condition, properties or assets of the Master Servicer taken as a whole;
(iv) The Master Servicer is an approved seller/servicer for Fxxxxx Mxx FNMA or Fxxxxxx Mac FHLMC in good standing and is a HUD approved mortgagee pursuant to Section 203 of the National Housing Act;
(v) No litigation is pending against the Master Servicer that would materially and adversely affect the execution, delivery or enforceability of this Agreement or the ability of the Master Servicer to service the Mortgage Loans or to perform any of its other obligations hereunder in accordance with the terms hereof;; and
(vi) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the consummation of the transactions contemplated by this Agreement, except for such consents, approvals, authorizations or orders, if any, that have been obtained prior to the Closing Date;
(vii) The Master Servicer covenants that its computer and other systems used in servicing the Mortgage Loans operate in a manner such that the Master Servicer can service the Mortgage Loans in accordance with the terms of this Agreement; and
(viii) The Master Servicer (or a Sub-Servicer servicing the Mortgage Loans on its behalf) is a member of MERS in good standing, and will comply in all material respects with the rules and procedures of MERS in connection with the servicing of the Mortgage Loans that are registered with MERS. It is understood and agreed that the representations, warranties and covenants set forth in this Section 2.05 shall survive delivery of the Mortgage Files to the Trustee or to a Custodian on its behalf Custodian, as the case may be, and shall inure to the benefit of the Trustee, the Trust AdministratorDepositor, the Depositor Certificateholders and the CertificateholdersCertificate Insurer. Upon discovery by any of the Depositor, the Master Servicer, the Trust Administrator Servicer or the Trustee of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any Mortgage Loan or the interests therein of the CertificateholdersCertificateholders and the Certificate Insurer, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the TrusteeTrustee and the Certificate Insurer. Subject to Section 7.01, the The obligation of the Master Servicer set forth in Section 2.03(c) to cure breaches shall constitute the sole remedies against the Master Servicer available to the Certificateholders, the Depositor, the Trust Administrator Depositor or the Trustee on behalf of the Certificateholders respecting a breach of the representations, warranties and covenants contained in this Section 2.05. The preceding sentence shall not, however, limit any remedies available to the Certificateholders, the Depositor or the Trustee on behalf of the Certificateholders, pursuant to the Mortgage Loan Purchase Agreement signed by the Master Servicer in its capacity as Originator, respecting a breach of the representations, warranties and covenants of the Master Servicer in its capacity as Originator contained in such Mortgage Loan Purchase Agreement.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Salomon Bros Mort Sec Vii Inc Ast Bk Fl Rte Cer Se 1996-Lb1a), Pooling and Servicing Agreement (Salomon Bros Mort Sec Vii Inc Asset Bk Fl Rte Ce Se 1996 Lb3)
Representations, Warranties and Covenants of the Master Servicer. The Master Servicer hereby represents, warrants and covenants to the Trust Administrator and the Trustee, for the benefit of each of the Trustee, the Trust Administrator, the Certificateholders and to the Depositor that as of the Closing Date or as of such date specifically provided herein:
(i) The Master Servicer is a corporation duly organized, validly existing existing, and in good standing under the laws of the State jurisdiction of New York its formation and has all licenses necessary to carry on its business as now being conducted and is duly authorized licensed, qualified and qualified in good standing in the states where the Mortgaged Property is located if the laws of such state require licensing or qualification in order to transact any and all conduct business contemplated by this Agreement to be of the type conducted by the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent necessary to ensure its ability to enforce the enforceability or validity of each Mortgage Loan and to service Loan; the Mortgage Loans in accordance with the terms of this Agreement;
(ii) The Master Servicer has the full corporate power and authority to service each Mortgage Loan, execute and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary corporate action on the part of the Master Servicer to perform in accordance herewith; the execution, delivery and performance of this Agreement; and Agreement (including all instruments of transfer to be delivered pursuant to this Agreement, assuming the due authorization, execution and delivery thereof ) by the other parties heretoMaster Servicer and the consummation of the transactions contemplated hereby have been duly and validly authorized; this Agreement evidences the valid, constitutes a legal, valid binding and binding enforceable obligation of the Master Servicer, enforceable against subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally; and all requisite corporate action has been taken by the Master Servicer to make this Agreement valid and binding upon the Master Servicer in accordance with its terms, except to the extent that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ rights generally and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought;
(iiiii) The execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunder, the consummation of any other of the transactions herein contemplated, and the fulfillment of or compliance with the terms hereof contemplated by this Agreement are in the ordinary course of business of the Master Servicer and will not (A) result in a the breach of any term or provision of the charter or by-laws of the Master Servicer or (B) conflict with, result in a breach, violation the breach of any term or acceleration provision of, or conflict with or constitute a default under or result in a default the acceleration of any obligation under, the terms of any other material agreement, indenture or loan or credit agreement or other instrument to which the Master Servicer or its property is a party or by which it may be boundsubject, or result in the violation of any statutelaw, order rule, regulation, order, judgment or regulation applicable decree to which the Master Servicer or its property is subject;
(iii) The execution and delivery of this Agreement by the Master Servicer and the performance and compliance with its obligations and covenants hereunder do not require the consent or approval of any courtgovernmental authority or, regulatory bodyif such consent or approval is required, administrative agency or governmental body having jurisdiction over it has been obtained;
(iv) This Agreement, and all documents and instruments contemplated hereby which are executed and delivered by the Master Servicer; , constitute and will constitute valid, legal and binding obligations of the Master Servicer, enforceable in accordance with their respective terms, except as the enforcement thereof may be limited by applicable bankruptcy laws and general principles of equity;
(v) [Reserved];
(vi) The Master Servicer does not believe, nor does it have any reason or cause to believe, that it cannot perform each and every covenant contained in this Agreement;
(vii) There is no action, suit, proceeding or investigation pending or, to its knowledge, threatened against the Master Servicer is not a party tothat, bound by, either individually 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 body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects or, to the Master Servicer’s knowledge, would in the future materially and adversely affectaggregate, (xA) the ability of the Master Servicer to perform its obligations under this Agreement or (y) may result in any change in the business, operations, financial condition, properties or assets of the Master Servicer taken as a whole;
(iv) The Master Servicer is an approved seller/servicer for Fxxxxx Mxx that might prohibit or Fxxxxxx Mac in good standing and is a HUD approved mortgagee pursuant to Section 203 of the National Housing Act;
(v) No litigation is pending against the Master Servicer that would materially and adversely affect the executionperformance by such Master Servicer of its obligations under, delivery or validity or enforceability of, this Agreement, or (B) may result in any material impairment of the right or ability of the Master Servicer to carry on its business substantially as now conducted, or (C) may result in any material liability on the part of the Master Servicer, or (D) would draw into question the validity or enforceability of this Agreement or of any action taken or to be taken in connection with the obligations of the Master Servicer contemplated herein, or (E) would otherwise be likely to impair materially the ability of the Master Servicer to service the Mortgage Loans or to perform any of its other obligations hereunder in accordance with under the terms hereofof this Agreement;
(viviii) No consentNeither this Agreement nor any information, approvalcertificate of an officer, authorization statement furnished in writing or order of any court or governmental agency or body is required for report delivered to the execution, delivery and performance Trustee by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the consummation of in connection with the transactions contemplated by this Agreement, except for such consents, approvals, authorizations or orders, if any, that have been obtained prior to the Closing Datehereby contains any untrue statement of a material fact;
(viiix) The Master Servicer covenants that its computer and other systems used in servicing the Mortgage Loans operate in a manner such that the Master Servicer can service the Mortgage Loans in accordance with the terms of this Agreement;
(x) The information set forth in the Prepayment Charge Schedule (including the Prepayment Charge Summary attached thereto) is complete, true and correct in all material respects on the date or dates when such information is furnished and each Prepayment Charge is permissible and enforceable in accordance with its terms (except to the extent that the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws affecting creditor's rights generally or the collectibility thereof may be limited due to acceleration in connection with a foreclosure) under applicable state, federal and local law;
(xi) The Master Servicer will not waive any Prepayment Charge unless it is waived in accordance with the standard set forth in Section 3.01; and
(viiixii) The Master Servicer (or a Sub-Servicer servicing the Mortgage Loans on its behalf) is a member of MERS in good standinghas accurately and fully reported, and will comply in all material respects with the rules continue to accurately and procedures of MERS in connection with the servicing fully report, its borrower credit files to each of the Mortgage Loans that are registered with MERScredit repositories in a timely manner. It is understood and agreed that the representations, warranties and covenants set forth in this Section 2.05 shall survive delivery of the Mortgage Files to the Trustee or to a Custodian on its behalf and shall inure to the benefit of the Trustee, the Trust Administrator, the Depositor and the Certificateholders. Upon discovery by any of the Depositor, the Master Servicer, the Trust Administrator NIMS Insurer or the Trustee of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any Mortgage Loan or the interests therein of the Certificateholders, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the NIMS Insurer and the Trustee. Subject to Section 7.01, unless such breach shall not be susceptible of cure within 90 days, the obligation of the Master Servicer set forth in this Section 2.03(c) 2.05 to cure breaches shall constitute the sole remedies remedy against the Master Servicer available to the Certificateholders, the Depositor, the Trust Administrator or Depositor and the Trustee on behalf of the Certificateholders respecting a breach of the representations, warranties and covenants contained in this Section 2.05. Notwithstanding the foregoing, within 90 days of the earlier of discovery by the Master Servicer or receipt of notice by the Master Servicer of the breach of the representation or covenant of the Master Servicer (in its capacity as Originator) set forth in Sections 2.05(x) or 2.05(xi) above which materially and adversely affects the interests of the Holders of the Class P Certificates in any Prepayment Charge, the Master Servicer shall remedy such breach as follows: (a) if the representation made by the Master Servicer (in its capacity as Originator) in Section 2.05(x) above is breached and a Principal Prepayment has occurred in the applicable Prepayment Period or if a change of law subsequent to the Closing Date limits the enforceability of a Prepayment Charge (other than in the circumstances provided in Section 2.05(x) above), the Master Servicer (in its capacity as Originator) must pay the amount of the scheduled Prepayment Charge, for the benefit of the Holders of the Class P Certificates, by depositing such amount into the Collection Account, net of any amount previously collected by the Master Servicer and paid by the Master Servicer, for the benefit of the Holders of the Class P Certificates, in respect of such Prepayment Charge; and (b) if any of the covenants made by the Master Servicer in Section 2.05(xi) above is breached, the Master Servicer must pay the amount of such waived Prepayment Charge, for the benefit of the Holders of the Class P Certificates, by depositing such amount into the Collection Account.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Mastr Asset Backed Securities Trust 2004-Opt1), Pooling and Servicing Agreement (Mortgage Asset Securitization Transactions, Inc. Mortgage Pass-Through Certificates, Series 2004-0pt2)
Representations, Warranties and Covenants of the Master Servicer. The Master Servicer hereby represents, warrants makes the following representations and covenants warranties to the Trust Depositor, the Securities Administrator and the Trustee, for the benefit of each of the Trustee, the Trust Administrator, the Certificateholders and to the Depositor that as of the Closing Date or as of such date specifically provided hereinDate:
(i) The Master Servicer is a corporation national banking association duly organized, chartered and validly existing and in good standing under the laws of the State United States of New York America and has all licenses necessary to carry on its business as now being conducted and is duly authorized licensed, qualified and qualified in good standing in each of the states where a Mortgaged Property securing a Mortgage Loan is located if the laws of such state require licensing or qualification in order to transact any and all conduct business contemplated by this Agreement to be of the type conducted by the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to service the Mortgage Loans in accordance with the terms of this Agreement;
(ii) Servicer. The Master Servicer has the full corporate power and authority to service each Mortgage Loan, execute and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary corporate action on the part of the Master Servicer to perform in accordance herewith; the execution, delivery and performance of this Agreement (including all instruments of transfer to be delivered pursuant to this Agreement; ) by the Master Servicer and this the consummation of the transactions contemplated hereby have been duly and validly authorized. This Agreement, assuming the due authorization, execution and delivery thereof by the other parties hereto, constitutes a legalevidences the valid, valid binding and binding enforceable obligation of the Master Servicer, enforceable against subject to applicable law except as enforceability may be limited by (A) bankruptcy, insolvency, liquidation, receivership, moratorium, reorganization or other similar laws affecting the enforcement of the rights of creditors and (B) general principles of equity, whether enforcement is sought in a proceeding in equity or at law. All requisite corporate action has been taken by the Master Servicer to make this Agreement valid and binding upon the Master Servicer in accordance with its terms.
(ii) No consent, except approval, authorization or order is required for the transactions contemplated by this Agreement from any court, governmental agency or body, or federal or state regulatory authority having jurisdiction over the Master Servicer is required or, if required, such consent, approval, authorization or order has been or will, prior to the extent that (a) the enforceability thereof may Closing Date, be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ rights generally and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought;obtained.
(iii) The execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunder, the consummation of any other of the transactions herein contemplated, and the fulfillment of or compliance with the terms hereof contemplated by this Agreement are in the ordinary course of business of the Master Servicer and will not (A) result in a the breach of any term or provision of the charter or by-laws of the Master Servicer or (B) conflict with, result in a breach, violation the breach of any term or acceleration provision of, or conflict with or constitute a default under or result in a default the acceleration of any obligation under, the terms of any other material agreement, indenture or loan or credit agreement or other instrument to which the Master Servicer or its property is a party or by which it may be boundsubject, or result in the violation of any statutelaw, order rule, regulation, order, judgment or regulation applicable decree to which the Master Servicer of any courtor its property is subject.
(iv) There is no action, regulatory bodysuit, administrative agency proceeding or governmental body having jurisdiction over the Master Servicer; and the Master Servicer 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 body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects investigation pending or, to the Master Servicer’s knowledge, would in the future materially and adversely affect, (x) the ability best knowledge of the Master Servicer, threatened against the Master Servicer to perform its obligations under this Agreement which, either individually or (y) in the aggregate, would result in any material adverse change in the business, operations, financial condition, properties or assets of the Master Servicer taken as a whole;
(iv) The Master Servicer is an approved seller/servicer for Fxxxxx Mxx Servicer, or Fxxxxxx Mac in good standing and is a HUD approved mortgagee pursuant to Section 203 any material impairment of the National Housing Act;
(v) No litigation is pending against right or ability of the Master Servicer that to carry on its business substantially as now conducted or which would materially and adversely affect draw into question the execution, delivery or enforceability validity of this Agreement or the Mortgage Loans or of any action taken or to be taken in connection with the obligations of the Master Servicer contemplated herein, or which would materially impair the ability of the Master Servicer to service the Mortgage Loans or to perform any of its other obligations hereunder in accordance with the terms hereof;
(vi) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the consummation of the transactions contemplated by this Agreement, except for such consents, approvals, authorizations or orders, if any, that have been obtained prior to the Closing Date;
(vii) The Master Servicer covenants that its computer and other systems used in servicing the Mortgage Loans operate in a manner such that the Master Servicer can service the Mortgage Loans in accordance with under the terms of this Agreement; and
(viii) . The Master Servicer (or a Sub-Servicer servicing the Mortgage Loans on its behalf) is a member of MERS in good standing, representations and will comply in all material respects with the rules and procedures of MERS in connection with the servicing of the Mortgage Loans that are registered with MERS. It is understood and agreed that the representations, warranties and covenants set forth in made pursuant to this Section 2.05 2.03 shall survive delivery of the respective Mortgage Files to the Trustee or to a Custodian on its the Trustee's behalf and shall inure to the benefit of the Trustee, the Trust Administrator, the Depositor and the Certificateholders. Upon discovery by any of the Depositor, the Master Servicer, the Trust Administrator or the Trustee of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any Mortgage Loan or the interests therein of the Certificateholders, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the Trustee. Subject to Section 7.01, the obligation of the Master Servicer set forth in Section 2.03(c) to cure breaches shall constitute the sole remedies against the Master Servicer available to the Certificateholders, the Depositor, the Trust Administrator or the Trustee on behalf of the Certificateholders respecting a breach of the representations, warranties and covenants contained in this Section 2.05.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Banc of America Funding 2007-8 Trust), Pooling and Servicing Agreement (Banc of America Funding 2006-J Trust)
Representations, Warranties and Covenants of the Master Servicer. The Master Servicer hereby represents, warrants and covenants to the Trust Administrator and the Trustee, for the benefit of each of the Trustee, the Trust Administrator, the Certificateholders and to the Depositor that as of the Closing Date or as of such date specifically provided herein:
(i) The Master Servicer is a corporation duly organized, validly existing and in good standing under the laws of the State of New York Delaware and is duly authorized and qualified to transact any and all business contemplated by this Agreement to be conducted by the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to service the Mortgage Loans in accordance with the terms of this Agreement;
(ii) The Master Servicer has the full corporate power and authority to service each Mortgage Loan, and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary corporate action on the part of the Master Servicer the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties heretoDepositor and the Trustee, constitutes a legal, valid and binding obligation of the Master Servicer, enforceable against the Master Servicer in accordance with its terms, except to the extent that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ ' rights generally and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought;
(iii) The execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunder, the consummation of any other of the transactions herein contemplated, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Master Servicer and will not (A) result in a breach of any term or provision of the charter or by-laws of the Master Servicer or (B) conflict with, result in a breach, violation or acceleration of, or result in a default under, the terms of any other material agreement or instrument to which the Master Servicer is a party or by which it may be bound, or any statute, order or regulation applicable to the Master Servicer of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Master Servicer; and the Master Servicer 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 body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects or, to the Master Servicer’s 's knowledge, would in the future materially and adversely affect, (x) the ability of the Master Servicer to perform its obligations under this Agreement or (y) the business, operations, financial condition, properties or assets of the Master Servicer taken as a whole;
(iv) The Master Servicer is an approved seller/servicer for Fxxxxx Mxx Xxxxxx Xxx or Fxxxxxx Xxxxxxx Mac in good standing and is a HUD approved mortgagee pursuant to Section 203 and Section 211 of the National Housing Act;
(v) No Except as disclosed in the Prospectus Supplement, no litigation is pending against the Master Servicer that would materially and adversely affect the execution, delivery or enforceability of this Agreement or the ability of the Master Servicer to service the Mortgage Loans or to perform any of its other obligations hereunder in accordance with the terms hereof;
(vi) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the consummation of the transactions contemplated by this Agreement, except for such consents, approvals, authorizations or orders, if any, that have been obtained prior to the Closing Date;
(vii) The Master Servicer covenants that its computer information set forth in the Prepayment Charge Schedule attached hereto as Schedule 2 (including the prepayment charge summary attached thereto) is complete, true and other systems used correct in servicing all material respects at the Mortgage Loans operate in a manner date or dates respecting which such that the Master Servicer can service the Mortgage Loans information is furnished and each Prepayment Charge is permissible and enforceable in accordance with its terms (except to the terms of this Agreement; andextent that (i) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally and (ii) the collectability thereof may be limited due to acceleration in connection with a foreclosure or other involuntary payment;
(viii) The Master Servicer will not waive any Prepayment Charge or part of a Prepayment Charge unless, (i) the enforceability thereof shall have been limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally or a Sub-Servicer servicing (ii) the Mortgage Loans on its behalf) is a member of MERS in good standing, and will comply in all material respects with the rules and procedures of MERS collectability thereof shall have been limited due to acceleration in connection with a foreclosure or other involuntary payment or (iii) in the Master Servicer's reasonable judgment as described in Section 3.01 hereof, (x) such waiver relates to a default or a reasonably foreseeable default, (y) such waiver would maximize recovery of total proceeds taking into account the value of such Prepayment Charge and related Mortgage Loan and (z) doing so is standard and customary in servicing of the similar Mortgage Loans (including any waiver of a Prepayment Charge in connection with a refinancing of a Mortgage Loan that are registered is related to a default or a reasonably foreseeable default). In no event will the Master Servicer waive a Prepayment Charge in connection with MERS. It a refinancing of a Mortgage Loan that is understood and agreed that the representations, warranties and covenants not related to a default or a reasonably foreseeable default;
(ix) The information set forth in this Section 2.05 shall survive delivery of the Mortgage Files "monthly tape" provided to the Trustee or any of its affiliates is true and correct in all material respects;
(x) With respect to a Custodian on its behalf and shall inure to each Mortgage Loan, the benefit Assignment is in recordable form; (except that the name of the Trustee, the Trust Administrator, the Depositor assignee and the Certificateholders. Upon discovery by any of the Depositor, the Master Servicer, the Trust Administrator or the Trustee of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any recording information with respect to such Mortgage Loan or is blank) and each Mortgage Loan was originated in the interests therein of the Certificateholders, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the Trustee. Subject to Section 7.01, the obligation name of the Master Servicer set forth in Section 2.03(c) to cure breaches shall constitute the sole remedies against the Master Servicer available to the Certificateholders, the Depositor, the Trust Administrator or the Trustee on behalf of the Certificateholders respecting a breach of the representations, warranties and covenants contained in this Section 2.05.an affiliate thereof; and
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Ameriquest Mortgage Sec as-BCKD Pass-THR Cert Ser 2003-7), Pooling and Servicing Agreement (Ameriquest Mortgage Sec Inc Asset Back Pass THR Ser 2003-13)
Representations, Warranties and Covenants of the Master Servicer. The Master Servicer hereby represents, warrants makes the following representations and covenants warranties to the Trust Depositor, the Securities Administrator and the Trustee, for the benefit of each of the Trustee, the Trust Administrator, the Certificateholders and to the Depositor that as of the Closing Date or as of such date specifically provided hereinDate:
(i) The Master Servicer is a corporation national banking association duly organized, chartered and validly existing and in good standing under the laws of the State United States of New York America and is duly authorized and qualified to transact any and has all business contemplated by this Agreement to be conducted by the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent licenses necessary to ensure carry on its ability to enforce each Mortgage Loan and to service the Mortgage Loans in accordance with the terms of this Agreement;
(ii) business as now being conducted. The Master Servicer has the full corporate power and authority to service each Mortgage Loan, execute and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary corporate action on the part of the Master Servicer to perform in accordance herewith; the execution, delivery and performance of this Agreement (including all instruments of transfer to be delivered pursuant to this Agreement; ) by the Master Servicer and this the consummation of the transactions contemplated hereby have been duly and validly authorized. This Agreement, assuming the due authorization, execution and delivery thereof by the other parties hereto, constitutes a legalevidences the valid, valid binding and binding enforceable obligation of the Master Servicer, enforceable against subject to applicable law except as enforceability may be limited by (A) bankruptcy, insolvency, liquidation, receivership, moratorium, reorganization or other similar laws affecting the enforcement of the rights of creditors and (B) general principles of equity, whether enforcement is sought in a proceeding in equity or at law. All requisite corporate action has been taken by the Master Servicer to make this Agreement valid and binding upon the Master Servicer in accordance with its terms.
(ii) No consent, except approval, authorization or order is required for the transactions contemplated by this Agreement from any court, governmental agency or body, or federal or state regulatory authority having jurisdiction over the Master Servicer is required or, if required, such consent, approval, authorization or order has been or will, prior to the extent that (a) the enforceability thereof may Closing Date, be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ rights generally and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought;obtained.
(iii) The execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunder, the consummation of any other of the transactions herein contemplated, and the fulfillment of or compliance with the terms hereof contemplated by this Agreement are in the ordinary course of business of the Master Servicer and will not (A) result in a the breach of any term or provision of the charter or by-laws of the Master Servicer or (B) conflict with, result in a breach, violation the breach of any term or acceleration provision of, or conflict with or constitute a default under or result in a default the acceleration of any obligation under, the terms of any other material agreement, indenture or loan or credit agreement or other instrument to which the Master Servicer or its property is a party or by which it may be boundsubject, or result in the violation of any statutelaw, order rule, regulation, order, judgment or regulation applicable decree to which the Master Servicer of any courtor its property is subject.
(iv) There is no action, regulatory bodysuit, administrative agency proceeding or governmental body having jurisdiction over the Master Servicer; and the Master Servicer 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 body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects investigation pending or, to the Master Servicer’s knowledge, would in the future materially and adversely affect, (x) the ability best knowledge of the Master Servicer, threatened against the Master Servicer to perform its obligations under this Agreement which, either individually or (y) in the aggregate, would result in any material adverse change in the business, operations, financial condition, properties or assets of the Master Servicer taken as a whole;
(iv) The Master Servicer is an approved seller/servicer for Fxxxxx Mxx Servicer, or Fxxxxxx Mac in good standing and is a HUD approved mortgagee pursuant to Section 203 any material impairment of the National Housing Act;
(v) No litigation is pending against right or ability of the Master Servicer that to carry on its business substantially as now conducted or which would materially and adversely affect draw into question the execution, delivery or enforceability validity of this Agreement or the Mortgage Loans or of any action taken or to be taken in connection with the obligations of the Master Servicer contemplated herein, or which would materially impair the ability of the Master Servicer to service the Mortgage Loans or to perform any of its other obligations hereunder in accordance with the terms hereof;
(vi) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the consummation of the transactions contemplated by this Agreement, except for such consents, approvals, authorizations or orders, if any, that have been obtained prior to the Closing Date;
(vii) The Master Servicer covenants that its computer and other systems used in servicing the Mortgage Loans operate in a manner such that the Master Servicer can service the Mortgage Loans in accordance with under the terms of this Agreement; and
(viii) . The Master Servicer (or a Sub-Servicer servicing the Mortgage Loans on its behalf) is a member of MERS in good standing, representations and will comply in all material respects with the rules and procedures of MERS in connection with the servicing of the Mortgage Loans that are registered with MERS. It is understood and agreed that the representations, warranties and covenants set forth in made pursuant to this Section 2.05 2.03 shall survive delivery of the respective Mortgage Files to the Trustee or to a Custodian on its behalf and shall inure to for the benefit of the Trustee, the Trust Administrator, the Depositor and the Certificateholders. Upon discovery by any of the Depositor, the Master Servicer, the Trust Administrator or the Trustee of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any Mortgage Loan or the interests therein of the Certificateholders, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the Trustee. Subject to Section 7.01, the obligation of the Master Servicer set forth in Section 2.03(c) to cure breaches shall constitute the sole remedies against the Master Servicer available to the Certificateholders, the Depositor, the Trust Administrator or the Trustee on behalf of the Certificateholders respecting a breach of the representations, warranties and covenants contained in this Section 2.05.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Banc of America Funding Corp. 2005-D Trust), Pooling and Servicing Agreement (Banc of America Funding Corp. Mortgage Pass-Through Certificates Series 2004-C)
Representations, Warranties and Covenants of the Master Servicer. (a) The Master Servicer hereby represents, represents and warrants and covenants to the Trust Administrator and the Trustee, for its own benefit and the benefit of each of the Trustee, the Trust Administrator, the Certificateholders and the Companion Loan Holder, and to the Depositor that Depositor, the Special Servicer, the Operating Advisor and the Certificate Administrator, as of the Closing Date or as of such date specifically provided hereinDate, that:
(i) The Master Servicer is a corporation duly organized, validly existing and in good standing as a national banking association under the laws of the State United States of New York America, and is duly authorized and qualified to transact any and all business contemplated by this Agreement to be conducted by the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, the jurisdiction in which the Mortgaged Property is located to the extent necessary to ensure perform its ability to enforce each Mortgage Loan and to service the Mortgage Loans in accordance with the terms of obligations under this Agreement;
(ii) The execution and delivery of this Agreement by the Master Servicer, and the performance and compliance with the terms of this Agreement by the Master Servicer, do not violate the Master Servicer’s organizational documents or constitute a default (or an event that, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other material instrument to which it is a party or that is applicable to it or any of its assets, in each case, which does or is likely to materially and adversely affect either the ability of the Master Servicer to perform its obligations under this Agreement or the financial condition of the Master Servicer;
(iii) The Master Servicer has the full corporate power and authority to service each Mortgage Loan, and to execute, deliver and perform, and to enter into and consummate the all transactions to be performed by it as contemplated by this Agreement and Agreement, has duly authorized by all necessary corporate action on the part of the Master Servicer 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 legalvalid, valid legal and binding obligation of the Master Servicer, enforceable against the Master Servicer in accordance with its termsthe terms hereof, except subject to the extent that (aA) the enforceability thereof may be limited by applicable bankruptcy, receivership, insolvency, moratoriumliquidation, receivership fraudulent transfer, reorganization, moratorium and other similar laws relating to affecting the enforcement of creditors’ (including bank creditors’) rights generally generally, and (bB) the remedy general principles of specific performance and injunctive and other forms equity, regardless of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any whether such enforcement is considered in a proceeding therefor may be broughtin equity or at law;
(iiiv) The Master Servicer is not in violation of, and its execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunder, the consummation of any other of the transactions herein contemplated, and the fulfillment of or its performance and compliance with the terms hereof are in the ordinary course of business of the Master Servicer and will this Agreement do not (A) result in constitute a breach violation of, any law, any order or decree of any term court or provision of the charter or by-laws of the Master Servicer or (B) conflict with, result in a breach, violation or acceleration of, or result in a default under, the terms of any other material agreement or instrument to which the Master Servicer is a party or by which it may be boundarbiter, or any statuteorder, order regulation or regulation applicable to the Master Servicer demand of any courtfederal, state or local governmental or regulatory body, administrative agency or governmental body having jurisdiction over the Master Servicer; and the Master Servicer 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 body, administrative agency or governmental body having jurisdiction over itauthority, which materially and adversely affects orviolation, to in the Master Servicer’s knowledgegood faith and reasonable judgment, would in the future is likely to affect materially and adversely affect, (x) either the ability of the Master Servicer to perform its obligations under this Agreement or (y) the business, operations, financial condition, properties or assets condition of the Master Servicer taken as a wholeServicer;
(iv) The Master Servicer is an approved seller/servicer for Fxxxxx Mxx or Fxxxxxx Mac in good standing and is a HUD approved mortgagee pursuant to Section 203 of the National Housing Act;
(vvi) No litigation is pending or, to the best of the Master Servicer’s knowledge, threatened against the Master Servicer that would prohibit the Master Servicer from entering into this Agreement or, in the Master Servicer’s good faith and reasonable judgment, is likely to materially and adversely affect the execution, delivery or enforceability of this Agreement or either the ability of the Master Servicer to service perform its obligations under this Agreement or the Mortgage Loans or to perform any financial condition of its other obligations hereunder in accordance with the terms hereofMaster Servicer;
(vivii) Each officer or employee of the Master Servicer that has responsibilities concerning the servicing and administration of Mortgage Loans and the Companion Loan is covered by errors and omissions insurance in the amounts and with the coverage required by Section 3.08(c) of this Agreement; and
(viii) No consent, approval, authorization or order of of, or filing or registration with, any state or federal court or governmental agency or body is required for the execution, delivery and performance consummation by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the consummation of the transactions contemplated by this Agreement, except for such those consents, approvals, authorizations or orders, if any, and orders that previously have been obtained prior to the Closing Date;and those filings and registrations that previously have been completed.
(viib) The Master Servicer covenants that its computer representations and other systems used warranties set forth in servicing paragraph (a) above shall survive the Mortgage Loans operate in a manner such that the Master Servicer can service the Mortgage Loans in accordance with the terms execution and delivery of this Agreement; and
(viii) The Master Servicer (or a Sub-Servicer servicing the Mortgage Loans on its behalf) is a member of MERS in good standing, and will comply in all material respects with the rules and procedures of MERS in connection with the servicing of the Mortgage Loans that are registered with MERS. It is understood and agreed that the representations, warranties and covenants set forth in this Section 2.05 shall survive delivery of the Mortgage Files to the Trustee or to a Custodian on its behalf and shall inure to the benefit of the Trustee, the Trust Administrator, the Depositor and the Certificateholders. Upon discovery by any of the Depositor, the Master Servicer, the Trust Administrator Special Servicer or a Responsible Officer of the Trustee or the Trustee Certificate Administrator (or upon written notice thereof from any Certificateholder or the Companion Loan Holder) of a breach of any of the foregoing representations, representations and warranties and covenants set forth in this Section which materially and adversely affects the value interests of the Certificateholders or the Companion Loan Holder, the Master Servicer, the Special Servicer or the Trustee in any Mortgage Loan or the interests therein of the CertificateholdersWhole Loan, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the Trustee. Subject other parties hereto, each Certifying Certificateholder and the Companion Loan Holder and, prior to Section 7.01the occurrence and continuance of a Consultation Termination Event, the obligation of the Master Servicer set forth in Section 2.03(c) to cure breaches shall constitute the sole remedies against the Master Servicer available to the Certificateholders, the Depositor, the Trust Administrator or the Trustee on behalf of the Certificateholders respecting a breach of the representations, warranties and covenants contained in this Section 2.05Controlling Class Representative.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (GS Mortgage Securities Trust 2011-Gc5), Pooling and Servicing Agreement (GS Mortgage Securities Trust 2011-Gc5)
Representations, Warranties and Covenants of the Master Servicer. The Master Servicer hereby represents, warrants and covenants to the Trust Administrator and the Trustee, for the benefit of each of the Trustee, the Trust Administrator, Trustee and the Certificateholders and to the Depositor that as of the Closing Date or as of such date specifically provided herein:
(i) The Master Servicer is a corporation duly organized, validly existing existing, and in good standing under the laws of the State jurisdiction of New York its formation and has all licenses necessary to carry on its business as now being conducted and is duly authorized licensed, qualified and qualified in good standing in the states where the Mortgaged Property is located if the laws of such state require licensing or qualification in order to transact any and all conduct business contemplated by this Agreement to be of the type conducted by the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent necessary to ensure its ability to enforce the enforceability or validity of each Mortgage Loan and to service Loan; the Mortgage Loans in accordance with the terms of this Agreement;
(ii) The Master Servicer has the full corporate power and authority to service each Mortgage Loan, execute and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary corporate action on the part of the Master Servicer to perform in accordance herewith; the execution, delivery and performance of this Agreement; and Agreement (including all instruments of transfer to be delivered pursuant to this Agreement, assuming the due authorization, execution and delivery thereof ) by the other parties heretoMaster Servicer and the consummation of the transactions contemplated hereby have been duly and validly authorized; this Agreement evidences the valid, constitutes a legal, valid binding and binding enforceable obligation of the Master Servicer, enforceable against subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally; and all requisite corporate action has been taken by the Master Servicer to make this Agreement valid and binding upon the Master Servicer in accordance with its terms, except to the extent that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ rights generally and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought;
(iiiii) The execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunder, the consummation of any other of the transactions herein contemplated, and the fulfillment of or compliance with the terms hereof contemplated by this Agreement are in the ordinary course of business of the Master Servicer and will not (A) result in a the breach of any term or provision of the charter or by-laws of the Master Servicer or (B) conflict with, result in a breach, violation the breach of any term or acceleration provision of, or conflict with or constitute a default under or result in a default the acceleration of any obligation under, the terms of any other material agreement, indenture or loan or credit agreement or other instrument to which the Master Servicer or its property is a party or by which it may be boundsubject, or result in the violation of any statutelaw, order rule, regulation, order, judgment or regulation applicable decree to which the Master Servicer or its property is subject;
(iii) The execution and delivery of this Agreement by the Master Servicer and the performance and compliance with its obligations and covenants hereunder do not require the consent or approval of any courtgovernmental authority or, regulatory bodyif such consent or approval is required, administrative agency or governmental body having jurisdiction over it has been obtained;
(iv) This Agreement, and all documents and instruments contemplated hereby which are executed and delivered by the Master Servicer; , constitute and will constitute valid, legal and binding obligations of the Master Servicer, enforceable in accordance with their respective terms, except as the enforcement thereof may be limited by applicable bankruptcy laws and general principles of equity;
(v) [Reserved];
(vi) The Master Servicer does not believe, nor does it have any reason or cause to believe, that it cannot perform each and every covenant contained in this Agreement;
(vii) There is no action, suit, proceeding or investigation pending or, to its knowledge, threatened against the Master Servicer is not a party tothat, bound by, either individually 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 body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects or, to the Master Servicer’s knowledge, would in the future materially and adversely affectaggregate, (xA) the ability of the Master Servicer to perform its obligations under this Agreement or (y) may result in any change in the business, operations, financial condition, properties or assets of the Master Servicer taken as a whole;
(iv) The Master Servicer is an approved seller/servicer for Fxxxxx Mxx that might prohibit or Fxxxxxx Mac in good standing and is a HUD approved mortgagee pursuant to Section 203 of the National Housing Act;
(v) No litigation is pending against the Master Servicer that would materially and adversely affect the executionperformance by such Master Servicer of its obligations under, delivery or validity or enforceability of, this Agreement, or (B)may result in any material impairment of the right or ability of the Master Servicer to carry on its business substantially as now conducted, or (C) may result in any material liability on the part of the Master Servicer, or (D) would draw into question the validity or enforceability of this Agreement or of any action taken or to be taken in connection with the obligations of the Master Servicer contemplated herein, or (E) would otherwise be likely to impair materially the ability of the Master Servicer to service the Mortgage Loans or to perform any of its other obligations hereunder in accordance with under the terms hereofof this Agreement;
(viviii) No consentNeither this Agreement nor any information, approvalcertificate of an officer, authorization statement furnished in writing or order of any court or governmental agency or body is required for report delivered to the execution, delivery and performance Trustee by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the consummation of in connection with the transactions contemplated by this Agreement, except for such consents, approvals, authorizations or orders, if any, that have been obtained prior to the Closing Datehereby contains any untrue statement of a material fact;
(viiix) The Master Servicer covenants that its computer and other systems used in servicing the Mortgage Loans operate in a manner such that the Master Servicer can service the Mortgage Loans in accordance with the terms of this Agreement;
(x) The information set forth in the Prepayment Charge Schedule (including the Prepayment Charge Summary attached thereto) is complete, true and correct in all material respects on the date or dates when such information is furnished and each Prepayment Charge is permissible and enforceable in accordance with its terms (except to the extent that the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws affecting creditor's rights generally or the collectibility thereof may be limited due to acceleration in connection with a foreclosure) under applicable state law; and
(viiixi) The Master Servicer (or a Sub-Servicer servicing the Mortgage Loans on its behalf) will not waive any Prepayment Charge unless it is a member of MERS waived in good standing, and will comply in all material respects accordance with the rules and procedures of MERS standard set forth in connection with the servicing of the Mortgage Loans that are registered with MERSSection 3.01. It is understood and agreed that the representations, warranties and covenants set forth in this Section 2.05 shall survive delivery of the Mortgage Files to the Trustee or to a Custodian on its behalf and shall inure to the benefit of the Trustee, the Trust Administrator, the Depositor and the Certificateholders. Upon discovery by any of the Depositor, the NIMS Insurer, the Master Servicer, the Trust Administrator Originator or the Trustee of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any Mortgage Loan Loan, Prepayment Charge or the interests therein of the Certificateholders, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the Master Servicer, the Originator, the NIMS Insurer and the Trustee. Subject to Section 7.01Notwithstanding the foregoing, within 90 days of the obligation earlier of discovery by the Master Servicer or receipt of notice by the Master Servicer of the breach of the representation or covenant of the Master Servicer (in its capacity as Originator) set forth in Section 2.03(cSections 2.05(x) to cure breaches shall constitute or 2.05(xi) above which materially and adversely affects the sole remedies against interests of the Holders of the Class P Certificates in any Prepayment Charge, the Master Servicer shall remedy such breach as follows: (a) if the representation made by the Master Servicer (in its capacity as Originator) in Section 2.05(x) above is breached and a Principal Prepayment has occurred in the applicable Prepayment Period or if a change of law subsequent to the Closing Date limits the enforceability of a Prepayment Charge (other than in the circumstances provided in Section 2.05(x) above), the Master Servicer (in its capacity as Originator) must pay the amount of the scheduled Prepayment Charge, for the benefit of the Holders of the Class P Certificates, by depositing such amount into the Collection Account, net of any amount previously collected by the Master Servicer and paid by the Master Servicer, for the benefit of the Holders of the Class P Certificates, in respect of such Prepayment Charge; and (b) if any of the covenants made by the Master Servicer in Section 2.05(xi) above is breached, the Master Servicer must pay the amount of such waived Prepayment Charge, for the benefit of the Holders of the Class P Certificates, by depositing such amount into the Collection Account. The foregoing shall not, however, limit any remedies available to the Certificateholders, the Depositor, the Trust Administrator Depositor or the Trustee on behalf of the Certificateholders Certificateholders, pursuant to the Mortgage Loan Purchase Agreement signed by the Master Servicer in its capacity as Originator, respecting a breach of the representations, warranties and covenants of the Master Servicer in its capacity as Originator contained in this Section 2.05the Mortgage Loan Purchase Agreement.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Option One Mortgage Accept Corp Asset Backed Cer Ser 2002-4), Pooling and Servicing Agreement (Option One Mortgage Loan Tr 2002-1 as-BCKD Cert Ser 2002-1)
Representations, Warranties and Covenants of the Master Servicer. The Master Servicer hereby represents, warrants and covenants to the Trust Administrator and the Trustee, for the benefit of each of the Trustee, the Trust Administrator, the Certificateholders and to the Depositor that as of the Closing Date or as of such date specifically provided herein:
(i) The Master Servicer is a corporation duly organized, validly existing and in good standing under the laws of the State of New York Delaware and is duly authorized and qualified to transact any and all business contemplated by this Agreement to be conducted by the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to service the Mortgage Loans in accordance with the terms of this Agreement;
(ii) The Master Servicer has the full corporate power and authority to service each Mortgage Loan, and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary corporate action on the part of the Master Servicer the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties heretoDepositor and the Trustee, constitutes a legal, valid and binding obligation of the Master Servicer, enforceable against the Master Servicer in accordance with its terms, except to the extent that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ ' rights generally and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought;
(iii) The execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunder, the consummation of any other of the transactions herein contemplated, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Master Servicer and will not (A) result in a breach of any term or provision of the charter or by-laws of the Master Servicer or (B) conflict with, result in a breach, violation or acceleration of, or result in a default under, the terms of any other material agreement or instrument to which the Master Servicer is a party or by which it may be bound, or any statute, order or regulation applicable to the Master Servicer of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Master Servicer; and the Master Servicer 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 body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects or, to the Master Servicer’s 's knowledge, would in the future materially and adversely affect, (x) the ability of the Master Servicer to perform its obligations under this Agreement or (y) the business, operations, financial condition, properties or assets of the Master Servicer taken as a whole;
(iv) The Master Servicer is an approved seller/servicer for Fxxxxx Mxx Fannie Mae or Fxxxxxx Mac in good standing and Freddie Max xx xoxx stanxxxx xxd is a HUD approved mortgagee pursuant to Section 203 and Section 211 of the National Housing Act;
(v) No Except as disclosed in the Prospectus Supplement, no litigation is pending against the Master Servicer that would materially and adversely affect the execution, delivery or enforceability of this Agreement or the ability of the Master Servicer to service the Mortgage Loans or to perform any of its other obligations hereunder in accordance with the terms hereof;
(vi) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the consummation of the transactions contemplated by this Agreement, except for such consents, approvals, authorizations or orders, if any, that have been obtained prior to the Closing Date;
(vii) The Master Servicer covenants that its computer information set forth in the Prepayment Charge Schedule attached hereto as Schedule 2 (including the prepayment charge summary attached thereto) is complete, true and other systems used correct in servicing all material respects at the Mortgage Loans operate in a manner date or dates respecting which such that the Master Servicer can service the Mortgage Loans information is furnished and each Prepayment Charge is permissible and enforceable in accordance with its terms (except to the terms of this Agreement; andextent that (i) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally and (ii) the collectability thereof may be limited due to acceleration in connection with a foreclosure or other involuntary payment;
(viii) The Master Servicer shall not waive any Prepayment Charge or part of a Prepayment Charge unless, (i) the enforceability thereof shall have been limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally or a Sub-Servicer servicing (ii) the Mortgage Loans on its behalf) is a member of MERS in good standing, and will comply in all material respects with the rules and procedures of MERS collectability thereof shall have been limited due to acceleration in connection with a foreclosure or other involuntary payment or (iii) in the Master Servicer's reasonable judgment as described in Section 3.01 hereof, (x) such waiver relates to a default or a reasonably foreseeable default, (y) such waiver would maximize recovery of total proceeds taking into account the value of such Prepayment Charge and related Mortgage Loan and (z) doing so is standard and customary in servicing of the similar Mortgage Loans (including any waiver of a Prepayment Charge in connection with a refinancing of a Mortgage Loan that are registered is related to a default or a reasonably foreseeable default). In no event shall the Master Servicer waive a Prepayment Charge in connection with MERS. It a refinancing of a Mortgage Loan that is understood and agreed that the representations, warranties and covenants not related to a default or a reasonably foreseeable default;
(ix) The information set forth in this Section 2.05 shall survive delivery of the Mortgage Files "monthly tape" provided to the Trustee or any of its affiliates is true and correct in all material respects;
(x) With respect to a Custodian on its behalf and shall inure to each Mortgage Loan, the benefit Assignment is in recordable form; (except that the name of the Trustee, the Trust Administrator, the Depositor assignee and the Certificateholders. Upon discovery by any of the Depositor, the Master Servicer, the Trust Administrator or the Trustee of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any recording information with respect to such Mortgage Loan or is blank) and each Mortgage Loan was originated in the interests therein of the Certificateholders, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the Trustee. Subject to Section 7.01, the obligation name of the Master Servicer set forth in Section 2.03(c) to cure breaches shall constitute the sole remedies against the Master Servicer available to the Certificateholders, the Depositor, the Trust Administrator or the Trustee on behalf of the Certificateholders respecting a breach of the representations, warranties and covenants contained in this Section 2.05.an affiliate thereof;
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Ameriquest Mortgage Securities Inc. Series 2005-R3), Pooling and Servicing Agreement (Asset-Backed Pass-Through Certificates Series 2005-R2)
Representations, Warranties and Covenants of the Master Servicer. The Master Servicer hereby represents, warrants and covenants to the Trust Administrator and the Trustee, for the benefit of each of the Trustee, the Trust Administrator, Trustee and the Certificateholders and to the Depositor and the NIMS Insurer that as of the Closing Date or as of such date specifically provided herein:
(i) The Master Servicer is a corporation duly organized, validly existing and in good standing under the laws of the State of New York California and has all licenses necessary to carry on its business as now being conducted, except for such licenses, certificates and permits the absence of which, individually or in the aggregate, would not have a material adverse effect on the ability of the Master Servicer to conduct its business as it is presently conducted, and is duly authorized licensed, qualified and qualified in good standing in the states where the Mortgaged Property is located if the laws of such state require licensing or qualification in order to transact any and all conduct business contemplated by this Agreement to be of the type conducted by the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent necessary to ensure its ability to enforce the enforceability or validity of each Mortgage Loan and to service Loan; the Mortgage Loans in accordance with the terms of this Agreement;
(ii) The Master Servicer has the full corporate power and authority to service each Mortgage Loan, execute and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary corporate action on the part of the Master Servicer to perform in accordance herewith; the execution, delivery and performance of this Agreement (including all instruments of transfer to be delivered pursuant to this Agreement) by the Master Servicer and the consummation of the transactions contemplated hereby have been duly and validly authorized; and this Agreement, assuming the due authorization, execution and delivery thereof all requisite corporate action has been taken by the other parties hereto, constitutes a legal, Master Servicer to make this Agreement valid and binding obligation of the Master Servicer, enforceable against upon the Master Servicer in accordance with its terms, except to the extent that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ rights generally and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought;
(iiiii) The execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunder, the consummation of any other of the transactions herein contemplated, and the fulfillment of or compliance with the terms hereof contemplated by this Agreement are in the ordinary course of business of the Master Servicer and will not (A) result in a the breach of any term or provision of the charter articles of incorporation or by-laws of the Master Servicer or (B) conflict with, result in a breach, violation the breach of any term or acceleration provision of, or conflict with or constitute a default under or result in a default the acceleration of any obligation under, the terms of any other material agreement, indenture or loan or credit agreement or other instrument to which the Master Servicer or its property is a party or by which it may be boundsubject, or result in the violation of any statutelaw, order rule, regulation, order, judgment or regulation applicable decree to which the Master Servicer or its property is subject;
(iii) The Master Servicer is an approved seller/servicer of any courtconventional residential mortgage loans for Fannie Mae or Freddie Mac, regulatory bodywith the facilities, administrative agency procedures, and exxxxxxnxxx perxxxxxx necessary for the sound servicing of mortgage loans of the same type as the Mortgage Loans. The Master Servicer is a HUD approved mortgagee pursuant to Section 203 of the National Housing Act and is in good standing to sell mortgage loans to and service mortgage loans for Fannie Mae or governmental body having jurisdiction over Freddie Mac, and no event has occurred, including bxx xxx limited xx x xhange in insurance coverage, which would make the Master Servicer unable to comply with Fannie Mae or Freddie Mac eligibility requirements or which would requixx notifxxxxxxx to either Fannie Mae or Freddie Mac;
(iv) This Agreement, and all doxxxxxxs and inxxxxxxxts contemplated hereby which are executed and delivered by the Master Servicer; , constitute and will constitute valid, legal and binding obligations of the Master Servicer, enforceable in accordance with their respective terms, except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally (whether considered in a proceeding at law or in equity);
(v) The Master Servicer does not believe, nor does it have any reason or cause to believe, that it cannot perform each and every covenant contained in this Agreement;
(vi) There is no action, suit, proceeding or investigation pending or, to its knowledge, threatened against the Master Servicer is not a party tothat, bound by, either individually or in breach or violation of the aggregate, may result in any indenture or other agreement or instrument, or subject to or material adverse change in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects or, to the Master Servicer’s knowledge, would in the future materially and adversely affect, (x) the ability of the Master Servicer to perform its obligations under this Agreement or (y) the business, operations, financial condition, properties or assets of the Master Servicer taken as a whole;
(iv) The Master Servicer is an approved seller/servicer for Fxxxxx Mxx Servicer, or Fxxxxxx Mac in good standing and is a HUD approved mortgagee pursuant to Section 203 any material impairment of the National Housing Act;
(v) No litigation is pending against right or ability of the Master Servicer to carry on its business substantially as now conducted, or in any material liability on the part of the Master Servicer, or that would materially and adversely affect draw into question the execution, delivery validity or enforceability of this Agreement or of any action taken or to be taken in connection with the obligations of the Master Servicer contemplated herein, or that would be likely to impair materially the ability of the Master Servicer to service the Mortgage Loans or to perform any of its other obligations hereunder in accordance with under the terms hereofof this Agreement;
(vivii) No consent, approval, authorization approval or order of any court or governmental agency or body is required for the execution, delivery and performance by the Master Servicer of, of or compliance by the Master Servicer with, with this Agreement or the consummation of the transactions contemplated by this Agreement, except for such consents, approvals, authorizations or and orders, if any, that have been obtained prior to the Closing Date;
(vii) The Master Servicer covenants that its computer and other systems used in servicing the Mortgage Loans operate in a manner such that the Master Servicer can service the Mortgage Loans in accordance with the terms of this Agreementobtained; and
(viii) The No information in this Agreement provided by the Master Servicer (nor any information, certificate of an officer, statement furnished in writing or a Sub-report delivered to the Trustee by the Master Servicer servicing the Mortgage Loans on its behalf) is a member of MERS in good standing, and will comply in all material respects with the rules and procedures of MERS in connection with the servicing transactions contemplated hereby contains or will contain any untrue statement of a material fact or omits or will omit to state a material fact necessary in order to make the statements contained therein, in light of the Mortgage Loans that are registered with MERS. It is understood and agreed that the representationscircumstances under which they were made, warranties and covenants set forth in this Section 2.05 shall survive delivery of the Mortgage Files to the Trustee or to a Custodian on its behalf and shall inure to the benefit of the Trustee, the Trust Administrator, the Depositor and the Certificateholders. Upon discovery by any of the Depositor, the Master Servicer, the Trust Administrator or the Trustee of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any Mortgage Loan or the interests therein of the Certificateholders, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the Trustee. Subject to Section 7.01, the obligation of the Master Servicer set forth in Section 2.03(c) to cure breaches shall constitute the sole remedies against the Master Servicer available to the Certificateholders, the Depositor, the Trust Administrator or the Trustee on behalf of the Certificateholders respecting a breach of the representations, warranties and covenants contained in this Section 2.05not misleading.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Abfc Asset-Backed Certificates Series 2004-Opt2), Pooling and Servicing Agreement (Asset-Backed Funding Corp. ABFC Asset Backed Certificates, Series 2004-Opt5)
Representations, Warranties and Covenants of the Master Servicer. The Master Servicer hereby represents, warrants and covenants to the Trust Administrator and the Trustee, for the benefit of each of the Trustee, the Trust Administrator, the Certificateholders and to the Depositor that as of the Closing Date or as of such date specifically provided herein:
(i) The Master Servicer is a corporation duly organized, validly existing and in good standing under the laws of the State of New York Florida and is duly authorized and qualified (or a Sub-Servicer on behalf of the Master Servicer is duly authorized and qualified) to transact any and all business contemplated by this Agreement to be conducted by the Master Servicer in any state in which a Mortgaged Property is located or is (or such Sub-Servicer is) otherwise not required under applicable law to effect such qualification and, in any event, is (or such Sub-Servicer is) in compliance with with, or exempt from, the doing business laws of any such State, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to service the Mortgage Loans in accordance with the terms of this Agreement;
(ii) The Master Servicer has the full corporate power and authority to service each Mortgage Loan, and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary corporate action on the part of the Master Servicer the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties hereto, constitutes a legal, valid and binding obligation of the Master Servicer, enforceable against the Master Servicer in accordance with its terms, except to the extent that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ ' rights generally and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought;
(iii) The execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunder, the consummation of any other of the transactions herein contemplated, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Master Servicer and will not (A) result in a breach of any term or provision of the charter or by-laws of the Master Servicer or (B) conflict with, result in a breach, violation or acceleration of, or result in a default under, the terms of any other material agreement or instrument to which the Master Servicer is a party or by which it may be bound, or any statute, order or regulation applicable to the Master Servicer of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Master Servicer; and the Master Servicer 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 body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects or, to the Master Servicer’s 's knowledge, would in the future materially and adversely affect, (x) the ability of the Master Servicer to perform its obligations under this Agreement or (y) the business, operations, financial condition, properties or assets of the Master Servicer taken as a whole;
(iv) The Master Servicer is an approved seller/servicer for Fxxxxx Mxx or Fxxxxxx Mac in good standing and is a HUD approved mortgagee pursuant to Section 203 of the National Housing Act;
(v) No litigation is pending against the Master Servicer that would materially and adversely affect the execution, delivery or enforceability of this Agreement or the ability of the Master Servicer to service the Mortgage Loans or to perform any of its other obligations hereunder in accordance with the terms hereof;; and
(viv) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the consummation of the transactions contemplated by this Agreement, except for such consents, approvals, authorizations or orders, if any, that have been obtained prior to the Closing Date;
(vii) The Master Servicer covenants that its computer and other systems used in servicing the Mortgage Loans operate in a manner such that the Master Servicer can service the Mortgage Loans in accordance with the terms of this Agreement; and
(viii) The Master Servicer (or a Sub-Servicer servicing the Mortgage Loans on its behalf) is a member of MERS in good standing, and will comply in all material respects with the rules and procedures of MERS in connection with the servicing of the Mortgage Loans that are registered with MERS. It is understood and agreed that the representations, warranties and covenants set forth in this Section 2.05 shall survive delivery of the Mortgage Files to the Trustee or to a Custodian on its behalf and shall inure to the benefit of the Trustee, the Trust Administrator, the Depositor and the Certificateholders. Upon discovery by any of the Depositor, the Master Servicer, the Trust Administrator or the Trustee of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any Mortgage Loan or the interests therein of the Certificateholders, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the TrusteeTrustee and the Trust Administrator. Subject to Section 7.01, the obligation of the Master Servicer set forth in Section 2.03(c) to cure breaches shall constitute the sole remedies against the Master Servicer available to the Certificateholders, the Depositor, the Trust Administrator or the Trustee on behalf of the Certificateholders respecting a breach of the representations, warranties and covenants contained in this Section 2.05.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Citigroup Mortgage Loan Trust Series 2003 Ust-1), Pooling and Servicing Agreement (Citigroup Mortgage Loan Trust Inc Series 2004-Ust1)
Representations, Warranties and Covenants of the Master Servicer. The Master Servicer hereby represents, represents and warrants and covenants to the Trust Administrator and the Trustee, for the benefit of each of the Trustee, the Trust AdministratorCompany, the Certificate Insurer and the Certificateholders and to the Depositor that as of the Closing Date or as of such date specifically provided hereinDate:
(ia) The Master Servicer is a California corporation duly organized, validly existing and in good standing under the laws of the State state of New York its incorporation and is duly authorized and qualified to transact any and all business contemplated by this Agreement to be conducted by the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of each state in which any such State, Mortgaged Property is located to the extent necessary to ensure enable it to perform its ability to enforce each Mortgage Loan and to service the Mortgage Loans in accordance with obligations under the terms of this Agreement;
(ii) The ; the Master Servicer has the full corporate power and authority to service each Mortgage Loan, execute and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary corporate action on the part of the Master Servicer to perform in accordance herewith; the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof Agreement by the other parties heretoMaster Servicer and the consummation of the transactions contemplated hereby have been duly and validly authorized; this Agreement evidences the valid, constitutes a legal, valid binding and binding enforceable obligation of the Master Servicer, enforceable against ; and all requisite corporate action has been taken by the Master Servicer to make this Agreement valid and binding upon the Master Servicer in accordance with its terms, except to the extent that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ rights generally and ;
(b) Neither the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought;
(iii) The execution and delivery of this Agreement by the Master ServicerAgreement, the servicing of the Mortgage Loans by the Master Servicer hereunder, the consummation of any other of the transactions herein contemplated, and nor the fulfillment of or compliance with the terms hereof are in the ordinary course and conditions of business of the Master Servicer and this Agreement, will not (A) conflict with or result in a breach of any term or provision of the terms, conditions or provisions of the Master Servicer's charter or by-laws of the Master Servicer or (B) conflict with, result in a breach, violation any legal restriction or acceleration of, or result in a default under, the terms of any other material agreement or instrument to which the Master Servicer is now a party or by which it may be is bound, or constitute a default or result in an acceleration under any statuteof the foregoing, order or regulation applicable result in the violation of any law, rule, regulation, order, judgment or decree to which the Master Servicer or its property is subject, or impair the ability of any court, regulatory body, administrative agency the Trustee (or governmental body having jurisdiction over the Master Servicer; and the Master Servicer is not a party to, bound byas the agent of the Trustee) to realize on the Mortgage Loans, or in breach impair the value of the Mortgage Loans;
(c) The Master Servicer is or violation has applied to be an approved seller/servicer of any indenture conventional residential mortgage loans for FNMA and FHLMC;
(d) There is no action, suit, proceeding or other agreement or instrument, or subject to or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects investigation pending or, to the Master Servicer’s knowledge, would in the future materially and adversely affect, (x) the ability knowledge of the Master Servicer, threatened against the Master Servicer to perform its obligations under this Agreement which, either in any one instance or (y) in the aggregate, may result in any material adverse change in the business, operations, financial condition, properties or assets of the Master Servicer taken as a whole;
(iv) The Master Servicer is an approved seller/servicer for Fxxxxx Mxx Servicer, or Fxxxxxx Mac in good standing and is a HUD approved mortgagee pursuant to Section 203 any material impairment of the National Housing Act;
(v) No litigation is pending against right or ability of the Master Servicer that to carry on its business substantially as now conducted, or of any action taken or to be taken in connection with the obligations of the Master Servicer contemplated herein, or which would materially and adversely affect the execution, delivery or enforceability of this Agreement or impair the ability of the Master Servicer to service the Mortgage Loans or to perform any of its other obligations hereunder in accordance with under the terms hereofof this Agreement;
(vie) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Master Servicer of, of or compliance by the Master Servicer with, with this Agreement or the Mortgage Loans or the consummation of the transactions contemplated by this Agreement, except for or if required, such consents, approvals, authorizations or orders, if any, that have approval has been obtained prior to the Closing Date;
(viif) Neither this Agreement nor any statement, report or other document furnished by the Master Servicer pursuant to this Agreement or in connection with the transactions contemplated hereby contains any untrue statement of material fact regarding the Master Servicer or omits to state a material fact necessary to make the statements regarding the Master Servicer contained herein or therein not misleading; and
(g) The Master Servicer covenants that its the computer and other systems used in servicing the Mortgage Loans operate in a manner such that by the Master Servicer can service the Mortgage Loans in accordance with the terms of this Agreement; and
(viii) The Master Servicer (or a Sub-Servicer servicing the Mortgage Loans on its behalf) is a member of MERS in good standing, and will comply in all material respects with the rules and procedures of MERS each Subservicer in connection with the servicing of the Mortgage Loans that are registered with MERSeither is or will be modified to operate in a manner to allow the complete and uninterrupted performance by the Master Servicer and each Subservicer of all of its obligations hereunder or under any Subservicing Agreement, as the case may be. It is understood and agreed that the representations, representations and warranties and covenants set forth in this Section 2.05 3.01 shall survive the delivery of the respective Mortgage Files to the Trustee or to a Custodian on its behalf custodian, as the case may be, and shall inure to the benefit of the Trustee, the Trust Administrator, the Depositor Certificateholders and the Certificateholders. Upon discovery by any of the Depositor, the Master Servicer, the Trust Administrator or the Trustee of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any Mortgage Loan or the interests therein of the Certificateholders, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the Trustee. Subject to Section 7.01, the obligation of the Master Servicer set forth in Section 2.03(c) to cure breaches shall constitute the sole remedies against the Master Servicer available to the Certificateholders, the Depositor, the Trust Administrator or the Trustee on behalf of the Certificateholders respecting a breach of the representations, warranties and covenants contained in this Section 2.05Certificate Insurer.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Southern Pacific Secured Assets Corp), Pooling and Servicing Agreement (Southern Pacific Secured Assets Corp)
Representations, Warranties and Covenants of the Master Servicer. The Master Servicer hereby represents, warrants makes the following representations and covenants warranties to the Trust Depositor, the Securities Administrator and the Trustee, for the benefit of each of the Trustee, the Trust Administrator, the Certificateholders and to the Depositor that as of the Closing Date or as of such date specifically provided hereinDate:
(i) The Master Servicer is a corporation national banking association duly organized, chartered and validly existing and in good standing under the laws of the State United States of New York America and has all licenses necessary to carry on its business as now being conducted and is duly authorized licensed, qualified and qualified in good standing in each of the states where a Mortgaged Property securing a Mortgage Loan is located if the laws of such state require licensing or qualification in order to transact any and all conduct business contemplated by this Agreement to be of the type conducted by the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to service the Mortgage Loans in accordance with the terms of this Agreement;
(ii) Servicer. The Master Servicer has the full corporate power and authority to service each Mortgage Loan, execute and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary corporate action on the part of the Master Servicer to perform in accordance herewith; the execution, delivery and performance of this Agreement (including all instruments of transfer to be delivered pursuant to this Agreement; ) by the Master Servicer and this the consummation of the transactions contemplated hereby have been duly and validly authorized. This Agreement, assuming the due authorization, execution and delivery thereof by the other parties hereto, constitutes a legalevidences the valid, valid binding and binding enforceable obligation of the Master Servicer, enforceable against subject to applicable law except as enforceability may be limited by (A) bankruptcy, insolvency, liquidation, receivership, moratorium, reorganization or other similar laws affecting the enforcement of the rights of creditors and (B) general principles of equity, whether enforcement is sought in a proceeding in equity or at law. All requisite corporate action has been taken by the Master Servicer to make this Agreement valid and binding upon the Master Servicer in accordance with its terms.
(ii) No consent, except approval, authorization or order is required for the transactions contemplated by this Agreement from any court, governmental agency or body, or federal or state regulatory authority having jurisdiction over the Master Servicer is required or, if required, such consent, approval, authorization or order has been or will, prior to the extent that (a) the enforceability thereof may Closing Date, be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ rights generally and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought;obtained.
(iii) The execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunder, the consummation of any other of the transactions herein contemplated, and the fulfillment of or compliance with the terms hereof contemplated by this Agreement are in the ordinary course of business of the Master Servicer and will not (A) result in a the breach of any term or provision of the charter or by-laws of the Master Servicer or (B) conflict with, result in a breach, violation the breach of any term or acceleration provision of, or conflict with or constitute a default under or result in a default the acceleration of any obligation under, the terms of any other material agreement, indenture or loan or credit agreement or other instrument to which the Master Servicer or its property is a party or by which it may be boundsubject, or result in the violation of any statutelaw, order rule, regulation, order, judgment or regulation applicable decree to which the Master Servicer of any courtor its property is subject.
(iv) There is no action, regulatory bodysuit, administrative agency proceeding or governmental body having jurisdiction over the Master Servicer; and the Master Servicer 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 body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects investigation pending or, to the Master Servicer’s knowledge, would in the future materially and adversely affect, (x) the ability best knowledge of the Master Servicer, threatened against the Master Servicer to perform its obligations under this Agreement which, either individually or (y) in the aggregate, would result in any material adverse change in the business, operations, financial condition, properties or assets of the Master Servicer taken as a whole;
(iv) The Master Servicer is an approved seller/servicer for Fxxxxx Mxx Servicer, or Fxxxxxx Mac in good standing and is a HUD approved mortgagee pursuant to Section 203 any material impairment of the National Housing Act;
(v) No litigation is pending against right or ability of the Master Servicer that to carry on its business substantially as now conducted or which would materially and adversely affect draw into question the execution, delivery or enforceability validity of this Agreement or the Mortgage Loans or of any action taken or to be taken in connection with the obligations of the Master Servicer contemplated herein, or which would materially impair the ability of the Master Servicer to service the Mortgage Loans or to perform any of its other obligations hereunder in accordance with the terms hereof;
(vi) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the consummation of the transactions contemplated by this Agreement, except for such consents, approvals, authorizations or orders, if any, that have been obtained prior to the Closing Date;
(vii) The Master Servicer covenants that its computer and other systems used in servicing the Mortgage Loans operate in a manner such that the Master Servicer can service the Mortgage Loans in accordance with under the terms of this Agreement; and
(viii) . The Master Servicer (or a Sub-Servicer servicing the Mortgage Loans on its behalf) is a member of MERS in good standing, representations and will comply in all material respects with the rules and procedures of MERS in connection with the servicing of the Mortgage Loans that are registered with MERS. It is understood and agreed that the representations, warranties and covenants set forth in made pursuant to this Section 2.05 2.03 shall survive delivery of the respective Mortgage Files to the Trustee or to a Custodian on its behalf and shall inure to for the benefit of the Trustee, the Trust Administrator, the Depositor and the Certificateholders. Upon discovery by any of the Depositor, the Master Servicer, the Trust Administrator or the Trustee of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any Mortgage Loan or the interests therein of the Certificateholders, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the Trustee. Subject to Section 7.01, the obligation of the Master Servicer set forth in Section 2.03(c) to cure breaches shall constitute the sole remedies against the Master Servicer available to the Certificateholders, the Depositor, the Trust Administrator or the Trustee on behalf of the Certificateholders respecting a breach of the representations, warranties and covenants contained in this Section 2.05.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Banc of America Funding 2006-3 Trust), Pooling and Servicing Agreement (Banc of America Funding 2006-2 Trust)
Representations, Warranties and Covenants of the Master Servicer. The Master Servicer hereby represents, warrants and covenants to the Trust Administrator and the Trustee, for the benefit of each of the Trustee, the Trust Administrator, Trustee and the Certificateholders and to the Depositor that as of the Closing Date or as of such date specifically provided herein:
(i) The Master Servicer is a corporation duly organized, validly existing existing, and in good standing under the laws of the State jurisdiction of New York its formation and has all licenses necessary to carry on its business as now being conducted and is duly authorized licensed, qualified and qualified in good standing in the states where the Mortgaged Property is located if the laws of such state require licensing or qualification in order to transact any and all conduct business contemplated by this Agreement to be of the type conducted by the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent necessary to ensure its ability to enforce the enforceability or validity of each Mortgage Loan and to service Loan; the Mortgage Loans in accordance with the terms of this Agreement;
(ii) The Master Servicer has the full corporate power and authority to service each Mortgage Loan, execute and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary corporate action on the part of the Master Servicer to perform in accordance herewith; the execution, delivery and performance of this Agreement; and Agreement (including all instruments of transfer to be delivered pursuant to this Agreement, assuming the due authorization, execution and delivery thereof ) by the other parties heretoMaster Servicer and the consummation of the transactions contemplated hereby have been duly and validly authorized; this Agreement evidences the valid, constitutes a legal, valid binding and binding enforceable obligation of the Master Servicer, enforceable against subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally; and all requisite corporate action has been taken by the Master Servicer to make this Agreement valid and binding upon the Master Servicer in accordance with its terms, except to the extent that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ rights generally and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought;
(iiiii) The execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunder, the consummation of any other of the transactions herein contemplated, and the fulfillment of or compliance with the terms hereof contemplated by this Agreement are in the ordinary course of business of the Master Servicer and will not (A) result in a the breach of any term or provision of the charter or by-laws of the Master Servicer or (B) conflict with, result in a breach, violation the breach of any term or acceleration provision of, or conflict with or constitute a default under or result in a default the acceleration of any obligation under, the terms of any other material agreement, indenture or loan or credit agreement or other instrument to which the Master Servicer or its property is a party or by which it may be boundsubject, or result in the violation of any statutelaw, order rule, regulation, order, judgment or regulation applicable decree to which the Master Servicer or its property is subject;
(iii) The execution and delivery of this Agreement by the Master Servicer and the performance and compliance with its obligations and covenants hereunder do not require the consent or approval of any courtgovernmental authority or, regulatory bodyif such consent or approval is required, administrative agency or governmental body having jurisdiction over it has been obtained;
(iv) This Agreement, and all documents and instruments contemplated hereby which are executed and delivered by the Master Servicer; , constitute and will constitute valid, legal and binding obligations of the Master Servicer, enforceable in accordance with their respective terms, except as the enforcement thereof may be limited by applicable bankruptcy laws and general principles of equity;
(v) [Reserved];
(vi) The Master Servicer does not believe, nor does it have any reason or cause to believe, that it cannot perform each and every covenant contained in this Agreement;
(vii) There is no action, suit, proceeding or investigation pending or, to its knowledge, threatened against the Master Servicer is not a party tothat, bound by, either individually 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 body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects or, to the Master Servicer’s knowledge, would in the future materially and adversely affectaggregate, (xA) the ability of the Master Servicer to perform its obligations under this Agreement or (y) may result in any change in the business, operations, financial condition, properties or assets of the Master Servicer taken as a whole;
(iv) The Master Servicer is an approved seller/servicer for Fxxxxx Mxx that might prohibit or Fxxxxxx Mac in good standing and is a HUD approved mortgagee pursuant to Section 203 of the National Housing Act;
(v) No litigation is pending against the Master Servicer that would materially and adversely affect the executionperformance by such Master Servicer of its obligations under, delivery or validity or enforceability of, this Agreement, or (B) may result in any material impairment of the right or ability of the Master Servicer to carry on its business substantially as now conducted, or (C) may result in any material liability on the part of the Master Servicer, or (D) would draw into question the validity or enforceability of this Agreement or of any action taken or to be taken in connection with the obligations of the Master Servicer contemplated herein, or (E) would otherwise be likely to impair materially the ability of the Master Servicer to service the Mortgage Loans or to perform any of its other obligations hereunder in accordance with under the terms hereofof this Agreement;
(viviii) No consentNeither this Agreement nor any information, approvalcertificate of an officer, authorization statement furnished in writing or order of any court or governmental agency or body is required for report delivered to the execution, delivery and performance Trustee by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the consummation of in connection with the transactions contemplated by this Agreement, except for such consents, approvals, authorizations or orders, if any, that have been obtained prior to the Closing Datehereby contains any untrue statement of a material fact;
(viiix) The Master Servicer covenants that its computer and other systems used in servicing the Mortgage Loans operate in a manner such that the Master Servicer can service the Mortgage Loans in accordance with the terms of this Agreement; and
(viiix) The Master Servicer (or a Sub-Servicer servicing the Mortgage Loans on its behalf) will not waive any Prepayment Charge unless it is a member of MERS waived in good standing, and will comply in all material respects accordance with the rules and procedures of MERS standard set forth in connection with the servicing of the Mortgage Loans that are registered with MERSSection 3.01. It is understood and agreed that the representations, warranties and covenants set forth in this Section 2.05 shall survive delivery of the Mortgage Files to the Trustee or to a Custodian on its behalf and shall inure to the benefit of the Trustee, the Trust Administrator, the Depositor and the Certificateholders. Upon discovery by any of the Depositor, the Master Servicer, the Trust Administrator Servicer or the Trustee of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any Mortgage Loan Loan, Prepayment Charge or the interests therein of the Certificateholders, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the Master Servicer and the Trustee. Subject to Section 7.01Notwithstanding the foregoing, within 90 days of the obligation earlier of discovery by the Master Servicer or receipt of notice by the Master Servicer of the breach of the representation or covenant of the Master Servicer set forth in Section 2.03(c2.05(x) to cure breaches shall constitute above which materially and adversely affects the sole remedies against interests of the Holders of the Class P Certificates in any Prepayment Charge, the Master Servicer must pay the amount of such waived Prepayment Charge, for the benefit of the holders of the Class P Certificates, by depositing such amount into the Collection Account. The foregoing shall not, however, limit any remedies available to the Certificateholders, the Depositor, the Trust Administrator Depositor or the Trustee on behalf of the Certificateholders Certificateholders, pursuant to the Mortgage Loan Purchase Agreement respecting a breach of the representations, warranties and covenants contained of Option One made in this Section 2.05its capacity as a party to the Mortgage Loan Purchase Agreement.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Financial Assets Sec Corp First Frank Mort Ln Tr 2002-Ff1), Pooling and Servicing Agreement (Asset Backed Certificates Series 2001-Ff2)
Representations, Warranties and Covenants of the Master Servicer. The Master Servicer hereby represents, warrants and covenants to the Trust Administrator and the Trustee, for the benefit of each of the Trustee, the Trust Administrator, the Certificateholders and to the Depositor that as of the Closing Date or as of such date specifically provided herein:
(i) The Master Servicer is a corporation duly organized, validly existing and in good standing under the laws of the State of New York Jersey and is duly authorized and qualified to transact any and all business contemplated by this Agreement to be conducted by the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to service the Mortgage Loans in accordance with the terms of this Agreement;
(ii) The Master Servicer has the full corporate power and authority to service each Mortgage Loan, and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary corporate action on the part of the Master Servicer the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties heretoDepositor and the Trustee, constitutes a legal, valid and binding obligation of the Master Servicer, enforceable against the Master Servicer in accordance with its terms, except to the extent that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ rights generally and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought;
(iii) The execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunder, the consummation of any other of the transactions herein contemplated, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Master Servicer and will shall not (A) result in a breach of any term or provision of the charter or by-laws organizational documents of the Master Servicer or (B) conflict with, result in a breach, violation or acceleration of, or result in a default under, the terms of any other material agreement or instrument to which the Master Servicer is a party or by which it may be bound, or any statute, order or regulation applicable to the Master Servicer of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Master Servicer; and the Master Servicer 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 body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects or, to the Master Servicer’s knowledge, would in the future materially and adversely affect, (x) the ability of the Master Servicer to perform its obligations under this Agreement or (y) the business, operations, financial condition, properties or assets of the Master Servicer taken as a whole;
(iv) The Master Servicer is an approved seller/servicer for Fxxxxx Mxx or Fxxxxxx Mac in good standing and is a HUD approved mortgagee pursuant to Section 203 and Section 211 of the National Housing Act;
(v) No litigation is pending against the Master Servicer that would materially and adversely affect the execution, delivery or enforceability of this Agreement or the ability of the Master Servicer to service the Mortgage Loans or to perform any of its other obligations hereunder in accordance with the terms hereof;
(vi) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the consummation of the transactions contemplated by this Agreement, except for such consents, approvals, authorizations or orders, if any, that have been obtained prior to the Closing Date;
(vii) The Master Servicer covenants that its computer and other systems used in servicing the Mortgage Loans operate in a manner such that the Master Servicer can service the Mortgage Loans shall furnish, in accordance with the terms of this Agreement; andFair Credit Reporting Act and its implementing regulations, accurate and complete information (e.g., favorable and unfavorable) on its borrower credit files to Equifax, Experian and Trans Union Credit Information company or their successors on a monthly basis;
(viii) The Master Servicer shall not waive any Prepayment Charge or part of a Prepayment Charge unless, (i) the enforceability thereof shall have been limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ rights generally or (ii) the collectability thereof shall have been limited due to acceleration in connection with a foreclosure or other involuntary payment or otherwise limited or prohibited by applicable law, (iii) in the Master Servicer’s reasonable judgment as described in Section 3.01 hereof, (x) such waiver relates to a default or a Sub-Servicer reasonably foreseeable default, (y) such waiver would maximize recovery of total proceeds taking into account the value of such Prepayment Charge and related Mortgage Loan and (z) doing so is standard and customary in servicing the similar Mortgage Loans on (including any waiver of a Prepayment Charge in connection with a refinancing of a Mortgage Loan that is related to a default or a reasonably foreseeable default) or (iv) the collection of such Prepayment Charge would be considered “predatory” pursuant to written guidance published or issued by any applicable federal, state or local regulatory authority acting in its behalfofficial capacity and having jurisdiction over such matters. In no event shall the Master Servicer waive a Prepayment Charge in connection with a refinancing of a Mortgage Loan that is not related to a default or a reasonably foreseeable default;
(ix) is a member The information set forth in the monthly tape provided to the Trustee or any of MERS in good standing, its Affiliates shall be true and will comply correct in all material respects with respects; and
(x) The Master Servicer shall transmit full-file credit reporting data for each Mortgage Loan pursuant to Fxxxxx Mae Guide Announcement 95-19 and that for each Mortgage Loan, the rules and procedures of MERS in connection with the servicing Master Servicer agrees it shall report one of the Mortgage Loans that are registered with MERSfollowing statuses each month as follows: new origination, current, delinquent (30-, 60-, 90-days, etc.), foreclosed, or charged-off. It is understood and agreed that the representations, warranties and covenants set forth in this Section 2.05 shall survive delivery of the Mortgage Files to the Trustee or to a Custodian on its behalf Custodian, as the case may be, and shall inure to the benefit of the Trustee, the Trust Administrator, the Depositor and the Certificateholders. Upon discovery by any of the Depositor, the Master ServicerNIMS Insurer, the Trust Administrator Master Servicer or the Trustee of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any Mortgage Loan Loan, Prepayment Charge or the interests therein of the Certificateholders, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the Trustee. Subject to Section 7.01, the obligation of the Master Servicer set forth in Section 2.03(c) to cure breaches shall constitute the sole remedies against the Master Servicer available to the Certificateholders, the Depositor, the Trust Administrator or the Trustee on behalf of the Certificateholders respecting a breach of the representations, warranties and covenants contained in this Section 2.05.such
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Park Place Securities Inc. Asset Backed Pass Through Certificates Series 2005-Whq3), Pooling and Servicing Agreement (Park Place Securities, Inc., Asset-Backed Pass-Through Certificates, Series 2005-Whq4)
Representations, Warranties and Covenants of the Master Servicer. The Master Servicer hereby represents, warrants and covenants to the Trust Administrator and the Trustee, for the benefit of each of the Trustee, the Trust Administrator, Trustee and the Certificateholders and to the Depositor that as of the Closing Date or as of such date specifically provided herein:
(i) The Master Servicer is a corporation duly organized, validly existing and in good standing under the laws of the State of New York California and has all licenses necessary to carry on its business as now being conducted, except for such licenses, certificates and permits the absence of which, individually or in the aggregate, would not have a material adverse effect on the ability of the Master Servicer to conduct its business as it is presently conducted, and is duly authorized licensed, qualified and qualified in good standing in the states where the Mortgaged Property is located if the laws of such state require licensing or qualification in order to transact any and all conduct business contemplated by this Agreement to be of the type conducted by the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent necessary to ensure its ability to enforce the enforceability or validity of each Mortgage Loan and to service Loan; the Mortgage Loans in accordance with the terms of this Agreement;
(ii) The Master Servicer has the full corporate power and authority to service each Mortgage Loan, execute and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary corporate action on the part of the Master Servicer to perform in accordance herewith; the execution, delivery and performance of this Agreement (including all instruments of transfer to be delivered pursuant to this Agreement) by the Master Servicer and the consummation of the transactions contemplated hereby have been duly and validly authorized; and this Agreement, assuming the due authorization, execution and delivery thereof all requisite corporate action has been taken by the other parties hereto, constitutes a legal, Master Servicer to make this Agreement valid and binding obligation of the Master Servicer, enforceable against upon the Master Servicer in accordance with its terms, except to the extent that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ rights generally and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought;
(iiiii) The execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunder, the consummation of any other of the transactions herein contemplated, and the fulfillment of or compliance with the terms hereof contemplated by this Agreement are in the ordinary course of business of the Master Servicer and will not (A) result in a the breach of any term or provision of the charter articles of incorporation or by-laws of the Master Servicer or (B) conflict with, result in a breach, violation the breach of any term or acceleration provision of, or conflict with or constitute a default under or result in a default the acceleration of any obligation under, the terms of any other material agreement, indenture or loan or credit agreement or other instrument to which the Master Servicer or its property is a party or by which it may be boundsubject, or result in the violation of any statutelaw, order rule, regulation, order, judgment or regulation applicable decree to which the Master Servicer or its property is subject;
(iii) The Master Servicer is an approved seller/servicer of any courtconventional residential mortgage loans for Fannie Mae or Freddie Mac, regulatory bodywith the facilities, administrative agency procedures, and exxxxxxnxxx perxxxxxx necessary for the sound servicing of mortgage loans of the same type as the Mortgage Loans. The Master Servicer is a HUD approved mortgagee pursuant to Section 203 of the National Housing Act and is in good standing to sell mortgage loans to and service mortgage loans for Fannie Mae or governmental body having jurisdiction over Freddie Mac, and no event has occurred, including bxx xxx limited xx x xhange in insurance coverage, which would make the Master Servicer unable to comply with Fannie Mae or Freddie Mac eligibility requirements or which would requixx notifxxxxxxx to either Fannie Mae or Freddie Mac;
(iv) This Agreement, and all doxxxxxxs and inxxxxxxxts contemplated hereby which are executed and delivered by the Master Servicer; , constitute and will constitute valid, legal and binding obligations of the Master Servicer, enforceable in accordance with their respective terms, except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally (whether considered in a proceeding at law or in equity);
(v) The Master Servicer does not believe, nor does it have any reason or cause to believe, that it cannot perform each and every covenant contained in this Agreement;
(vi) There is no action, suit, proceeding or investigation pending or, to its knowledge, threatened against the Master Servicer is not a party tothat, bound by, either individually or in breach or violation of the aggregate, may result in any indenture or other agreement or instrument, or subject to or material adverse change in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects or, to the Master Servicer’s knowledge, would in the future materially and adversely affect, (x) the ability of the Master Servicer to perform its obligations under this Agreement or (y) the business, operations, financial condition, properties or assets of the Master Servicer taken as a whole;
(iv) The Master Servicer is an approved seller/servicer for Fxxxxx Mxx Servicer, or Fxxxxxx Mac in good standing and is a HUD approved mortgagee pursuant to Section 203 any material impairment of the National Housing Act;
(v) No litigation is pending against right or ability of the Master Servicer to carry on its business substantially as now conducted, or in any material liability on the part of the Master Servicer, or that would materially and adversely affect draw into question the execution, delivery validity or enforceability of this Agreement or of any action taken or to be taken in connection with the obligations of the Master Servicer contemplated herein, or that would be likely to impair materially the ability of the Master Servicer to service the Mortgage Loans or to perform any of its other obligations hereunder in accordance with under the terms hereofof this Agreement;
(vivii) No consent, approval, authorization approval or order of any court or governmental agency or body is required for the execution, delivery and performance by the Master Servicer of, of or compliance by the Master Servicer with, with this Agreement or the consummation of the transactions contemplated by this Agreement, except for such consents, approvals, authorizations or and orders, if any, that have been obtained prior to the Closing Date;
(vii) The Master Servicer covenants that its computer and other systems used in servicing the Mortgage Loans operate in a manner such that the Master Servicer can service the Mortgage Loans in accordance with the terms of this Agreementobtained; and
(viii) The No information in this Agreement provided by the Master Servicer (nor any information, certificate of an officer, statement furnished in writing or a Sub-report delivered to the Trustee by the Master Servicer servicing the Mortgage Loans on its behalf) is a member of MERS in good standing, and will comply in all material respects with the rules and procedures of MERS in connection with the servicing transactions contemplated hereby contains or will contain any untrue statement of a material fact or omits or will omit to state a material fact necessary in order to make the statements contained therein, in light of the Mortgage Loans that are registered with MERScircumstances under which they were made, not misleading. It is understood and agreed that the representations, warranties and covenants set forth in this Section 2.05 shall survive delivery of the Mortgage Files to the Trustee or to a Custodian on its behalf and shall inure to the benefit of the Trustee, the Trust Administrator, the Depositor and the Certificateholders. Upon discovery by any of the Depositor, the Master Servicer, the Trust Administrator Servicer or the Trustee of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any Mortgage Loan Loan, Prepayment Charge or the interests therein of the Certificateholders, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the Trustee. Subject to Section 7.01, the obligation of the Master Servicer set forth in Section 2.03(c) to cure breaches shall constitute the sole remedies against the Master Servicer available to the Certificateholders, the Depositor, the Trust Administrator or the Trustee on behalf of the Certificateholders respecting a breach of the representations, warranties and covenants contained in this Section 2.05other parties hereto.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Asset Backed Funding Corp Abfc Asst BCKD Cert Ser 2002-Opt1), Pooling and Servicing Agreement (Asset Backed Funding Corp Abfc Asset Back Cert Ser 2003 Opt1)
Representations, Warranties and Covenants of the Master Servicer. The Master Servicer hereby represents, warrants and covenants to the Trust Administrator and the Trustee, for the benefit of each of the Trustee, the Trust Administrator, the Certificateholders and to the Depositor that as of the Closing Date or as of such date specifically provided herein:
(i) The Master Servicer is a corporation duly organized, validly existing and in good standing under the laws of the State of New York California and is duly authorized and qualified to transact any and all business contemplated by this Agreement to be conducted by the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to service the Mortgage Loans in accordance with the terms of this Agreement;
(ii) The Master Servicer has the full corporate power and authority to service each Mortgage Loan, conduct its business as presently conducted by it and to execute, deliver and perform, and to enter into and consummate the consummate, all transactions contemplated by this Agreement and Agreement. The Master Servicer has duly authorized by all necessary corporate action on the part of the Master Servicer the execution, delivery and performance of this Agreement; , has duly executed and delivered this Agreement, and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties heretoDepositor and the Trustee, constitutes a legal, valid and binding obligation of the Master Servicer, enforceable against the Master Servicer it in accordance with its terms, terms except to the extent that (a) as the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other reorganization or similar laws relating to affecting the enforcement of creditors’ ' rights generally and (b) the remedy by general principles of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be broughtequity;
(iii) The execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunder, the consummation by the Master Servicer of any other of the transactions herein contemplated, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Master Servicer and will not (A) result in a breach of any term or provision of the charter or by-laws of the Master Servicer or (B) conflict with, result in a breach, violation or acceleration of, or result in a default under, the terms of any other material agreement or instrument to which the Master Servicer is a party or by which it may be bound, or any statute, order or regulation applicable to the Master Servicer of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Master Servicer; and the Master Servicer 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 body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects or, to the Master Servicer’s 's knowledge, would in the future materially and adversely affect, (x) the ability of the Master Servicer to perform its obligations under this Agreement or (y) the business, operations, financial condition, properties or assets of the Master Servicer taken as a whole;
(iv) The Master Servicer is an approved seller/servicer for Fxxxxx Mxx or Fxxxxxx Mac in good standing and is a HUD approved mortgagee pursuant to Section 203 of the National Housing Act. No event has occurred, including but not limited to a change in insurance coverage, that would make the Master Servicer unable to comply with HUD eligibility requirements or that would require notification to HUD;
(v) The Master Servicer does not believe, nor does it have any reason or cause to believe, that it cannot perform each and every covenant made by it and contained in this Agreement;
(vi) With respect to each Mortgage Loan, the Master Servicer, or Sub- Servicer if any, is in possession of a complete Mortgage File, except for such documents as have been delivered to the Trustee;
(vii) No litigation is pending against the Master Servicer that would materially and adversely affect the execution, delivery deliver or enforceability of this Agreement or the ability of the Master Servicer to service the Mortgage Loans or to perform any of its other obligations hereunder in accordance with the terms hereof;
(viviii) There are no actions or proceedings against, or investigations known to it of, the Master Servicer before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by the Master Servicer of its obligations under, or validity or enforceability of, this Agreement;
(ix) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the consummation by it of the transactions contemplated by this Agreement, except for such consents, approvals, authorizations or orders, if any, that have been obtained prior to the Closing Date;
(viix) The information set forth in the Prepayment Charge Schedule (including the prepayment charge summary attached thereto) is complete, true and correct in all material respects, and each Prepayment Charge is permissible, enforceable and collectible under applicable state law subject to bankruptcy and equitable enforcement limitations;
(xi) The Master Servicer covenants that its computer and other systems used in servicing the Mortgage Loans operate in a manner such that the Master Servicer can service the Mortgage Loans will not waive any Prepayment Charge unless it is waived in accordance with the terms of this Agreement; and
(viii) The Master Servicer (or a Sub-Servicer servicing the Mortgage Loans on its behalf) is a member of MERS standard set forth in good standing, and will comply in all material respects with the rules and procedures of MERS in connection with the servicing of the Mortgage Loans that are registered with MERSSection 3.01. It is understood and agreed that the representations, warranties and covenants set forth in this Section 2.05 shall survive delivery of the Mortgage Files to the Trustee or to a Custodian on its behalf and shall inure to the benefit of the Trustee, the Trust Administrator, the Depositor and the Certificateholders. Upon discovery by any of the Depositor, the Master Servicer, the Trust Administrator Servicer or the Trustee of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any Mortgage Loan or the interests therein of the Certificateholders, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the Trustee. Subject to Section 7.01, unless such breach shall not be susceptible of cure within 90 days, the obligation of the Master Servicer set forth in Section 2.03(c) to cure breaches shall constitute the sole remedies remedy against the Master Servicer available to the Certificateholders, the Depositor, the Trust Administrator Depositor or the Trustee on behalf of the Certificateholders respecting a breach of the representations, warranties and covenants contained in this Section 2.05. Notwithstanding the foregoing, within 90 days of the earlier of discovery by the Master Servicer or receipt of notice by the Master Servicer of the breach of the representation or covenant of the Master Servicer set forth in Sections 2.05(x) or 2.05(xi) above which materially and adversely affects the interests of the Holders of the Class P Certificates in any Prepayment Charge, the Master Servicer shall remedy such breach as follows: (a) if the representation made by the Master Servicer in Section 2.05(x) above is breached, the Master Servicer must pay the amount of the scheduled Prepayment Charge, for the benefit of the holder of the Class P Certificate, by depositing such amount into the Collection Account, net of any amount previously collected by the Master Servicer or paid by the Master Servicer, for the benefit of the Holders of the Class P Certificates, in respect of such Prepayment Charge; and (b) if any of the covenants made by the Master Servicer in Section 2.05(xi) above is breached, the Master Servicer must pay the amount of such waived Prepayment Charge, for the benefit of the holders of the Class P Certificates, by depositing such amount into the Collection Account. The foregoing shall not, however, limit any remedies available to the Certificateholders, the Depositor or the Trustee on behalf of the Certificateholders, pursuant to the Mortgage Loan Purchase Agreement signed by the Master Servicer in its capacity as Originator, respecting a breach of the representations, warranties and covenants of the Master Servicer in its capacity as Originator contained in the Mortgage Loan Purchase Agreement.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Asset Backed Floating Rate Certificates Series 1998-Opt2), Pooling and Servicing Agreement (Salomon Bros Mort Sec Vii Inc Ast Bk Cert Series 1998-Opt1)
Representations, Warranties and Covenants of the Master Servicer. (a) The Master Servicer hereby represents, represents and warrants and covenants to the Trust Depositor, the Securities Administrator (to the extent that the Master Servicer and the Securities Administrator are not the same Person), the Asset Representations Reviewer and the Trustee, for the benefit of each of the TrusteeCertificateholders, the Trust Administrator, the Certificateholders and to the Depositor that as of the Closing Date or as of such date specifically provided hereinthat:
(i) The Master Servicer it is a corporation duly organized, validly existing and in good standing under the laws of the State of New York as a [ ], and is duly authorized as Master Servicer has full power and qualified authority to transact any and all business contemplated by this Agreement to be conducted by the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to service the Mortgage Loans in accordance with the terms of this Agreement;
(ii) The Master Servicer has the full corporate power and authority to service each Mortgage Loan, and to execute, deliver and performcomply with its obligations under the terms of this Agreement, the execution, delivery and to enter into and consummate the transactions contemplated by this Agreement and has performance of which have been duly authorized by all necessary corporate action on the part of the Master Servicer Servicer;
(ii) the execution, execution and delivery and performance of this Agreement; Agreement by the Master Servicer and its performance and compliance with the terms of this Agreement will not (A) violate the Master Servicer’s charter or bylaws, (B) violate any law or regulation or any administrative decree or order to which it is subject or (C) constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material contract, agreement or other instrument to which the Master Servicer is a party or by which it is bound or to which any of its assets are subject, which violation, default or breach would materially and adversely affect the Master Servicer’s ability to perform its obligations under this Agreement;
(iii) this Agreement constitutes, assuming the due authorization, execution and delivery thereof hereof by the other respective parties hereto, constitutes a legal, valid and binding obligation of the Master Servicer, enforceable against the Master Servicer it in accordance with its termsthe terms hereof, except to the extent that (a) the enforceability thereof as such enforcement may be limited by bankruptcy, insolvency, moratoriumreorganization, receivership moratorium and other similar laws relating to affecting the enforcement of creditors’ rights generally in general, and by general equity principles (b) the remedy regardless of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any whether such enforcement is considered in a proceeding therefor may be broughtin equity or at law);
(iiiiv) The execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunder, the consummation of any other of the transactions herein contemplated, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Master Servicer and will not (A) result in a breach of any term or provision of the charter or by-laws of the Master Servicer or (B) conflict with, result in a breach, violation or acceleration of, or result in a default under, the terms of any other material agreement or instrument to which the Master Servicer is a party not in default with respect to any order or by which it may be bound, decree of any court or any statute, order or regulation applicable of any federal, state, municipal or governmental agency to the Master Servicer of extent that any court, regulatory body, administrative agency or governmental body having jurisdiction over the Master Servicer; such default would materially and adversely affect its performance hereunder;
(v) the Master Servicer is not a party to, to or bound by, or in breach or violation of by any indenture or other agreement or instrument, instrument or subject to any charter provision, bylaw or in violation of any statuteother corporate restriction or any judgment, order order, writ, injunction, decree, law or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it, which that may materially and adversely affects or, to the Master Servicer’s knowledge, would in the future materially and adversely affect, (x) the affect its ability of the as Master Servicer to perform its obligations under this Agreement or (y) that requires the business, operations, financial condition, properties or assets consent of any third person to the Master Servicer taken as a whole;
(iv) The Master Servicer is an approved seller/servicer for Fxxxxx Mxx or Fxxxxxx Mac in good standing and is a HUD approved mortgagee pursuant to Section 203 of the National Housing Act;
(v) No litigation is pending against the Master Servicer that would materially and adversely affect the execution, delivery or enforceability execution of this Agreement or the ability of performance by the Master Servicer to service the Mortgage Loans or to perform any of its other obligations hereunder in accordance with the terms hereofunder this Agreement;
(vi) No no litigation is pending or, to the best knowledge of a Responsible Officer of the Master Servicer, threatened against the Master Servicer which would prohibit its entering into this Agreement or performing its obligations under this Agreement;
(vii) the Master Servicer, or an affiliate thereof the primary business of which is the servicing of conventional residential mortgage loans, is a Fxxxxx Mae- or Fxxxxxx Mac-approved seller/servicer;
(viii) no consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Master Servicer of, of or compliance by the Master Servicer with, with this Agreement or the consummation of the transactions contemplated by this Agreement, except for such consents, approvals, authorizations or orders, and orders (if any, that ) as have been obtained prior to the Closing Dateobtained;
(viiix) The the consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Master Servicer; and
(x) neither the Master Servicer covenants nor any of its affiliates will have any financial interest in the Certificates as of the Closing Date except as otherwise disclosed in the Prospectus.
(b) It is understood and agreed that its computer the representations and other systems used warranties set forth in servicing this Section shall survive the Mortgage Loans operate in a manner such execution and delivery of this Agreement. In addition to any indemnity required pursuant to Section 6.25 hereof, the Master Servicer shall indemnify the Depositor, the Securities Administrator (to the extent that the Master Servicer can service and the Mortgage Loans Securities Administrator are not the same Person) and the Trustee and hold them harmless against any loss, damages, penalties, fines, forfeitures, legal fees and related costs, judgments, and other costs and expenses resulting from any claim, demand, defense or assertion based on or grounded upon, or resulting from, a material breach of the Master Servicer’s representations and warranties contained in accordance with Section 9.03(a) or any failure by the terms of Master Servicer to deliver any information, report, certification, accountants’ letter or other material when and as required under this Agreement; and
(viii) The Master Servicer (or a Sub-Servicer servicing the Mortgage Loans on its behalf) is a member of MERS in good standing, and will comply in all material respects with the rules and procedures of MERS in connection with the servicing of the Mortgage Loans that are registered with MERS. It is understood and agreed that the representations, warranties and covenants set forth in this Section 2.05 shall survive delivery enforcement of the Mortgage Files to the Trustee or to a Custodian on its behalf and shall inure to the benefit of the Trustee, the Trust Administrator, the Depositor and the Certificateholders. Upon discovery by any of the Depositor, the Master Servicer, the Trust Administrator or the Trustee of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any Mortgage Loan or the interests therein of the Certificateholders, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the Trustee. Subject to Section 7.01, the obligation of the Master Servicer set forth in this Section 2.03(c) to cure breaches shall constitute the sole remedies against the Master Servicer available to the Certificateholders, indemnify the Depositor, the Trust Securities Administrator or and the Trustee on behalf as provided in this Section 9.03(b) constitutes the sole remedy (other than as set forth in Section 6.14) of the Certificateholders Depositor, the Securities Administrator and the Trustee, respecting a breach of the representationsforegoing representations and warranties. Such indemnification shall survive any termination of the Master Servicer as Master Servicer hereunder, and any termination of this Agreement. Any cause of action against the Master Servicer relating to or arising out of the breach of any representations and warranties and covenants contained made in this Section 2.059.03(b) shall accrue upon discovery of such breach by either the Depositor, the Master Servicer or the Trustee or written notice thereof by any one of such parties to the other parties. The Master Servicer shall not be responsible for the validity, priority, perfection or sufficiency of the security of the Certificates issued or intended to be issued hereunder.
(c) The Master Servicer covenants and agrees that it shall not hold or purchase any Certificate if its holding or purchase of such Certificate (or interest therein) would cause the Master Servicer to be required to consolidate any assets of the Trust Fund on its financial statements under U.S. generally accepted accounting principles (“Consolidate” or “Consolidation”). The Master Servicer shall be deemed to have represented by virtue of its purchase or holding of such Certificate (or interest therein) that its holding or purchase of such Certificate (or interest therein) will not cause the Master Servicer to be required to Consolidate any assets of the Trust on its financial statements. If the Master Servicer's holding or purchase of a Certificate (or interest therein) does in fact cause such Consolidation, then the last preceding transferee that is not required to Consolidate shall be restored, to the extent permitted by law, to all rights and obligations as owner of such Certificate retroactive to the date of such transfer of such Certificate. If the Master Servicer holds or purchases a Certificate (or interest therein) in violation of the restrictions in this Section 9.03(c) and to the extent that the retroactive restoration of the rights of the owner of such Certificate as described in the immediately preceding sentence shall be invalid, illegal or unenforceable, then the Securities Administrator shall have the right, without notice to the owner or any prior owner of such Certificate, to sell such Certificate to a purchaser selected by the Securities Administrator on such terms as the Securities Administrator may choose. The Master Servicer shall promptly endorse and deliver such Certificate in accordance with the instructions of the Securities Administrator. The proceeds of such sale, net of the commissions (which may include commissions payable to the Securities Administrator or its affiliates), expenses and taxes due, if any, shall be remitted by the Securities Administrator to the Master Servicer. The terms and conditions of any sale under this Section 9.03(c) shall be determined in the sole discretion of the Securities Administrator, and the Securities Administrator shall not be liable to any owner of a Certificate as a result of its exercise of such discretion. The Master Servicer shall indemnify and hold harmless the Depositor and the Trust Fund from and against any and all losses, liabilities, claims, costs or expenses incurred by such parties as a result of such holding or purchase by the Master Servicer resulting in a Consolidation.
(d) The Master Servicer covenants and agrees that it shall not transfer its master servicing rights and duties under this Agreement to an insured depository institution, as such term is defined in the Federal Deposit Insurance Act (an “insured depository institution”, and any such insured depository institution in such capacity, a “master servicer transferee”) unless the Master Servicer shall have received a representation from the master servicer transferee that the acquisition of such master servicing rights and duties will not cause the master servicer transferee to be required to Consolidate any assets of the Trust Fund on its financial statements. Any master servicer transferee shall be deemed to have represented by virtue of its acquisition of such master servicing rights and duties that such acquisition will not cause Consolidation. Any master servicer transferee whose acquisition of such master servicing rights and duties was effected in violation of the restrictions in this Section 9.03(d) shall indemnify and hold harmless the Master Servicer, the Depositor and the Trust Fund from and against any and all losses, liabilities, claims, costs or expenses incurred by such parties as a result of such acquisition.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Sequoia Residential Funding Inc), Pooling and Servicing Agreement (Sequoia Residential Funding Inc)
Representations, Warranties and Covenants of the Master Servicer. The Master Servicer hereby represents, warrants and covenants to the Trust Administrator and the Trustee, for the benefit of each of the Trustee, the Trust Administrator, the Certificateholders and to the Depositor Trustee that as of the Closing Date or as of such date specifically provided herein:
(ia) The Master Servicer has been duly organized and is a corporation duly organized, validly existing as a [national banking association] and in good standing under the laws of the State United States of New York and is duly authorized and qualified to transact any and all business contemplated by this Agreement to be conducted by the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance America with the doing business laws of any such State, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to service the Mortgage Loans in accordance with the terms of this Agreement;
(ii) The Master Servicer has the full corporate power and authority (corporate and other) to service each Mortgage Loan, own its properties and to execute, deliver and perform, conduct its business as now conducted by it and to enter into and consummate perform its obligations under the transactions contemplated by this Agreement Pooling and Master Servicing Agreement, and has duly authorized by all necessary corporate action qualified to do business and is in good standing under the laws of each jurisdiction wherein it owns or leases any material properties or conducts any material business or in which the performance of its duties under the Pooling and Master Servicing Agreement would require such qualification, except where the failure so to qualify would not have a material adverse effect on the part of the Master Servicer the execution, delivery and performance of this its obligations under the Pooling and Master Servicing Agreement; ;
(b) The Pooling and this Master Servicing Agreement, assuming the due authorization, execution and delivery thereof by the other parties heretoCompany and the Trustee, constitutes a legal, valid and binding obligation agreement of the Master Servicer, enforceable against the Master Servicer it in accordance with its terms, except subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally, (ii) general principles of equity regardless of whether enforcement is sought in a proceeding in equity or at law and (iii) any notice, order, directive, or similar action by a federal banking agency that would be enforceable pursuant to Section 8 of the Federal Deposit Insurance Act to the extent that (a) the enforceability thereof may be limited by bankruptcysuch notice, insolvencyorder, moratoriumdirective, receivership and other similar laws relating to creditors’ rights generally and (b) the remedy of specific or action prohibits or enjoins performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought;
(iii) The execution and delivery of this Agreement by the Master Servicer, ;
(c) Neither the servicing of the Mortgage Loans execution and delivery by the Master Servicer hereunderof the Pooling and Master Servicing Agreement, nor the consummation of any other by the Master Servicer of the transactions herein therein contemplated, and the fulfillment of or nor compliance with the terms hereof are in the ordinary course of business of by the Master Servicer and with the provisions thereof, will not (Ai) conflict with or result in a breach of of, or constitute a default under, any term or provision of the charter provisions of the articles of association or by-laws of the Master Servicer or (B) conflict withany law, result in a breach, violation governmental rule or acceleration ofregulation, or result in a default underany judgment, decree or order binding on the terms Master Servicer or its properties, or any of the provisions of any indenture, mortgage, deed of trust, contract or other material agreement or instrument to which the Master Servicer is a party or by which it may be boundis bound or (ii) result in the creation or imposition of any lien, charge or encumbrance upon any statute, order or regulation applicable of its properties pursuant to the Master Servicer terms of any courtsuch indenture, regulatory bodymortgage, administrative agency or governmental body having jurisdiction over the Master Servicer; and the Master Servicer is not a party todeed of trust, bound by, or in breach or violation of any indenture contract or other agreement or instrument, or subject to or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects or, to the Master Servicer’s knowledge, would in the future materially and adversely affect, (x) the ability of the Master Servicer to perform its obligations under this Agreement or (y) the business, operations, financial condition, properties or assets of the Master Servicer taken as a whole;.
(iv) The Master Servicer is an approved seller/servicer for Fxxxxx Mxx or Fxxxxxx Mac in good standing and is a HUD approved mortgagee pursuant to Section 203 of the National Housing Act;
(vd) No litigation is pending or, to the best of the Master Servicer's knowledge, threatened against the Master Servicer that which would materially prohibit its entering into the Pooling and adversely affect the execution, delivery or enforceability of this Master Servicing Agreement or performing its obligations under the ability of the Pooling and Master Servicer to service the Mortgage Loans or to perform any of its other obligations hereunder in accordance with the terms hereof;
(vi) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the consummation of the transactions contemplated by this Agreement, except for such consents, approvals, authorizations or orders, if any, that have been obtained prior to the Closing Date;
(vii) The Master Servicer covenants that its computer and other systems used in servicing the Mortgage Loans operate in a manner such that the Master Servicer can service the Mortgage Loans in accordance with the terms of this Servicing Agreement; and
(viiie) The Master Servicer (or maintains a Sub-Master Servicer servicing Errors and Omissions Policy and Fidelity Bond which covers the Mortgage Loans on its behalf) is a member of MERS Master Servicer's performance under the Pooling and Master Servicing Agreement and such policy and bond are in good standing, full force and will comply in all material respects with the rules and procedures of MERS in connection with the servicing of the Mortgage Loans that are registered with MERS. It is understood and agreed that the representations, warranties and covenants set forth in this Section 2.05 shall survive delivery of the Mortgage Files to the Trustee or to a Custodian on its behalf and shall inure to the benefit of the Trustee, the Trust Administrator, the Depositor and the Certificateholderseffect. Upon discovery by any of the DepositorCompany, the Master Servicer, the Trust Administrator Servicer or the Trustee of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value interest of the Securityholders in any Mortgage Loan or the interests therein of the CertificateholdersAsset, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the Trustee. Subject to Section 7.01, the obligation of the Master Servicer set forth in Section 2.03(c) to cure breaches shall constitute the sole remedies against the Master Servicer available to the Certificateholders, the Depositor, the Trust Administrator or the Trustee on behalf of the Certificateholders respecting a breach of the representations, warranties and covenants contained in this Section 2.05other parties.
Appears in 2 contracts
Samples: Pooling and Master Servicing Agreement (Southpoint Residential Mortgage Securities Corp), Pooling and Master Servicing Agreement (Fremont Mortgage Securities Corp)
Representations, Warranties and Covenants of the Master Servicer. The Master Servicer hereby represents, warrants and covenants to the Trust Administrator and the Trustee, for the benefit of each of the Trustee, the Trust Administrator, the Certificateholders and to the Depositor that as of the Closing Date or as of such date specifically provided herein:
(i) The Master Servicer is a corporation duly organized, validly existing existing, and in good standing under the laws of the State jurisdiction of New York its formation and has all licenses necessary to carry on its business as now being conducted and is duly authorized licensed, qualified and qualified in good standing in the states where the Mortgaged Property is located if the laws of such state require licensing or qualification in order to transact any and all conduct business contemplated by this Agreement to be of the type conducted by the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent necessary to ensure its ability to enforce the enforceability or validity of each Mortgage Loan and to service Loan; the Mortgage Loans in accordance with the terms of this Agreement;
(ii) The Master Servicer has the full corporate power and authority to service each Mortgage Loan, execute and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary corporate action on the part of the Master Servicer to perform in accordance herewith; the execution, delivery and performance of this Agreement; and Agreement (including all instruments of transfer to be delivered pursuant to this Agreement, assuming the due authorization, execution and delivery thereof ) by the other parties heretoMaster Servicer and the consummation of the transactions contemplated hereby have been duly and validly authorized; this Agreement evidences the valid, constitutes a legal, valid binding and binding enforceable obligation of the Master Servicer, enforceable against subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally; and all requisite corporate action has been taken by the Master Servicer to make this Agreement valid and binding upon the Master Servicer in accordance with its terms, except to the extent that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ rights generally and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought;
(iiiii) The execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunder, the consummation of any other of the transactions herein contemplated, and the fulfillment of or compliance with the terms hereof contemplated by this Agreement are in the ordinary course of business of the Master Servicer and will not (A) result in a the breach of any term or provision of the charter or by-laws of the Master Servicer or (B) conflict with, result in a breach, violation the breach of any term or acceleration provision of, or conflict with or constitute a default under or result in a default the acceleration of any obligation under, the terms of any other material agreement, indenture or loan or credit agreement or other instrument to which the Master Servicer or its property is a party or by which it may be boundsubject, or result in the violation of any statutelaw, order rule, regulation, order, judgment or regulation applicable decree to which the Master Servicer or its property is subject;
(iii) The execution and delivery of this Agreement by the Master Servicer and the performance and compliance with its obligations and covenants hereunder do not require the consent or approval of any courtgovernmental authority or, regulatory bodyif such consent or approval is required, administrative agency or governmental body having jurisdiction over it has been obtained;
(iv) This Agreement, and all documents and instruments contemplated hereby which are executed and delivered by the Master Servicer; , constitute and will constitute valid, legal and binding obligations of the Master Servicer, enforceable in accordance with their respective terms, except as the enforcement thereof may be limited by applicable bankruptcy laws and general principles of equity;
(v) [Reserved]
(vi) The Master Servicer does not believe, nor does it have any reason or cause to believe, that it cannot perform each and every covenant contained in this Agreement;
(vii) There is no action, suit, proceeding or investigation pending or, to its knowledge, threatened against the Master Servicer is not a party tothat, bound by, either individually 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 body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects or, to the Master Servicer’s knowledge, would in the future materially and adversely affectaggregate, (xA) the ability of the Master Servicer to perform its obligations under this Agreement or (y) may result in any change in the business, operations, financial condition, properties or assets of the Master Servicer taken as a whole;
(iv) The Master Servicer is an approved seller/servicer for Fxxxxx Mxx that might prohibit or Fxxxxxx Mac in good standing and is a HUD approved mortgagee pursuant to Section 203 of the National Housing Act;
(v) No litigation is pending against the Master Servicer that would materially and adversely affect the executionperformance by such Master Servicer of its obligations under, delivery or validity or enforceability of, this Agreement, or (B)may result in any material impairment of the right or ability of the Master Servicer to carry on its business substantially as now conducted, or (C) may result in any material liability on the part of the Master Servicer, or (D) would draw into question the validity or enforceability of this Agreement or of any action taken or to be taken in connection with the obligations of the Master Servicer contemplated herein, or (E) would otherwise be likely to impair materially the ability of the Master Servicer to service the Mortgage Loans or to perform any of its other obligations hereunder in accordance with under the terms hereofof this Agreement;
(viviii) No consentNeither this Agreement nor any information, approvalcertificate of an officer, authorization statement furnished in writing or order of any court or governmental agency or body is required for report delivered to the execution, delivery and performance Trustee by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the consummation of in connection with the transactions contemplated by this Agreement, except for such consents, approvals, authorizations or orders, if any, that have been obtained prior to the Closing Datehereby contains any untrue statement of a material fact;
(viiix) The Master Servicer covenants that its computer and other systems used in servicing the Mortgage Loans operate in a manner such that the Master Servicer can service the Mortgage Loans in accordance with the terms of this Agreement;
(x) The information set forth in the Prepayment Charge Schedule (including the Prepayment Charge Summary attached thereto) is complete, true and correct in all material respects on the date or dates when such information is furnished and each Prepayment Charge is permissible and enforceable in accordance with its terms (except to the extent that the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws affecting creditor's rights generally or the collectibility thereof may be limited due to acceleration in connection with a foreclosure) under applicable state law;
(xi) The Master Servicer will not waive any Prepayment Charge unless it is waived in accordance with the standard set forth in Section 3.01; and
(viiixii) The Master Servicer (or a Sub-Servicer servicing the Mortgage Loans on its behalf) is a member of MERS in good standinghas accurately and fully reported, and will comply in all material respects with the rules continue to accurately and procedures of MERS in connection with the servicing fully report, its borrower credit files to each of the Mortgage Loans that are registered with MERScredit repositories in a timely manner. It is understood and agreed that the representations, warranties and covenants set forth in this Section 2.05 shall survive delivery of the Mortgage Files to the Trustee or to a Custodian on its behalf and shall inure to the benefit of the Trustee, the Trust Administrator, the Depositor and the Certificateholders. Upon discovery by any of the Depositor, the Master Servicer, the Trust Administrator NIMS Insurer or the Trustee of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any Mortgage Loan or the interests therein of the Certificateholders, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the NIMS Insurer and the Trustee. Subject to Section 7.01, unless such breach shall not be susceptible of cure within 90 days, the obligation of the Master Servicer set forth in this Section 2.03(c) 2.05 to cure breaches shall constitute the sole remedies remedy against the Master Servicer available to the Certificateholders, the Depositor, the Trust Administrator or Depositor and the Trustee on behalf of the Certificateholders respecting a breach of the representations, warranties and covenants contained in this Section 2.05. Notwithstanding the foregoing, within 90 days of the earlier of discovery by the Master Servicer or receipt of notice by the Master Servicer of the breach of the representation or covenant of the Master Servicer (in its capacity as Originator) set forth in Sections 2.05(x) or 2.05(xi) above which materially and adversely affects the interests of the Holders of the Class P Certificates in any Prepayment Charge, the Master Servicer shall remedy such breach as follows: (a) if the representation made by the Master Servicer (in its capacity as Originator) in Section 2.05(x) above is breached and a Principal Prepayment has occurred in the applicable Prepayment Period or if a change of law subsequent to the Closing Date limits the enforceability of a Prepayment Charge (other than in the circumstances provided in Section 2.05(x) above), the Master Servicer (in its capacity as Originator) must pay the amount of the scheduled Prepayment Charge, for the benefit of the Holders of the Class P Certificates, by depositing such amount into the Collection Account, net of any amount previously collected by the Master Servicer and paid by the Master Servicer, for the benefit of the Holders of the Class P Certificates, in respect of such Prepayment Charge; and (b) if any of the covenants made by the Master Servicer in Section 2.05(xi) above is breached, the Master Servicer must pay the amount of such waived Prepayment Charge, for the benefit of the Holders of the Class P Certificates, by depositing such amount into the Collection Account.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Mortgage Asset Sec Trans Mastr Pass Thru Ser 2003-Opt2), Pooling and Servicing Agreement (Mortgage Asset Securitization Transactions Inc Ser 2003-Opt1)
Representations, Warranties and Covenants of the Master Servicer. The Master Servicer hereby represents, warrants and covenants to the Trust Administrator and the Trustee, for the benefit of each of the Trustee, the Trust Administrator, the Certificateholders and to the Depositor that as of the Closing Date or as of such date specifically provided herein:
(i) The Master Servicer is a corporation duly organized, validly existing and in good standing under the laws of the State of New York Delaware and is duly authorized and qualified to transact any and all business contemplated by this Agreement to be conducted by the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to service the Mortgage Loans in accordance with the terms of this Agreement;
(ii) The Master Servicer has the full corporate power and authority to service each Mortgage Loan, and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary corporate action on the part of the Master Servicer the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties heretoDepositor and the Trustee, constitutes a legal, valid and binding obligation of the Master Servicer, enforceable against the Master Servicer in accordance with its terms, except to the extent that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ ' 66 rights generally and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought;
(iii) The execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunder, the consummation of any other of the transactions herein contemplated, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Master Servicer and will not (A) result in a breach of any term or provision of the charter or by-laws of the Master Servicer or (B) conflict with, result in a breach, violation or acceleration of, or result in a default under, the terms of any other material agreement or instrument to which the Master Servicer is a party or by which it may be bound, or any statute, order or regulation applicable to the Master Servicer of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Master Servicer; and the Master Servicer 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 body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects or, to the Master Servicer’s 's knowledge, would in the future materially and adversely affect, (x) the ability of the Master Servicer to perform its obligations under this Agreement or (y) the business, operations, financial condition, properties or assets of the Master Servicer taken as a whole;
(iv) The Master Servicer is an approved seller/servicer for Fxxxxx Mxx Fannie Mae or Fxxxxxx Mac in good standing and Freddie Max xx xoxx stanxxxx xxd is a HUD approved mortgagee pursuant to Section 203 and Section 211 of the National Housing Act;
(v) No Except as disclosed in the Prospectus Supplement, no litigation is pending against the Master Servicer that would materially and adversely affect the execution, delivery or enforceability of this Agreement or the ability of the Master Servicer to service the Mortgage Loans or to perform any of its other obligations hereunder in accordance with the terms hereof;
(vi) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the consummation of the transactions contemplated by this Agreement, except for such consents, approvals, authorizations or orders, if any, that have been obtained prior to the Closing Date;
(vii) The Master Servicer covenants that its computer information set forth in the Prepayment Charge Schedule attached hereto as Schedule 2 (including the prepayment charge summary attached thereto) is complete, true and other systems used correct in servicing all material respects at the Mortgage Loans operate in a manner date or dates respecting which such that the Master Servicer can service the Mortgage Loans information is furnished and each Prepayment Charge is permissible and enforceable in accordance with its terms (except to the terms of this Agreement; andextent that (i) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally and (ii) the collectability thereof may be limited due to acceleration in connection with a foreclosure or other involuntary payment;
(viii) The Master Servicer will not waive any Prepayment Charge or part of a Prepayment Charge unless, (i) the enforceability thereof shall have been limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally or a Sub-Servicer servicing (ii) the Mortgage Loans on its behalf) is a member of MERS in good standing, and will comply in all material respects with the rules and procedures of MERS collectability thereof shall have been limited due to acceleration in connection with a foreclosure or other involuntary payment or (iii) in the Master Servicer's reasonable judgment as described in Section 3.01 hereof, (x) such waiver relates to a default or a reasonably foreseeable default, (y) such waiver would maximize recovery of total proceeds taking into account the value of such Prepayment Charge and related Mortgage Loan and (z) doing so is standard and customary in servicing of the similar Mortgage Loans (including any waiver of a Prepayment Charge in connection with a refinancing of a Mortgage Loan that are registered is related to a default or a reasonably foreseeable default). In no event will the Master Servicer waive a Prepayment Charge in connection with MERS. It a refinancing of a Mortgage Loan that is understood and agreed that the representations, warranties and covenants not related to a default or a reasonably foreseeable default;
(ix) The information set forth in this Section 2.05 shall survive delivery of the Mortgage Files "monthly tape" provided to the Trustee or any of its affiliates is true and correct in all material respects;
(x) With respect to a Custodian on its behalf and shall inure to each Mortgage Loan, the benefit Assignment is in recordable form; (except that the name of the Trustee, the Trust Administrator, the Depositor assignee and the Certificateholders. Upon discovery by any of the Depositor, the Master Servicer, the Trust Administrator or the Trustee of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any recording information with respect to such Mortgage Loan or is blank) and each Mortgage Loan was originated in the interests therein of the Certificateholders, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the Trustee. Subject to Section 7.01, the obligation name of the Master Servicer set forth in Section 2.03(c) to cure breaches shall constitute the sole remedies against the Master Servicer available to the Certificateholders, the Depositor, the Trust Administrator or the Trustee on behalf of the Certificateholders respecting a breach of the representations, warranties and covenants contained in this Section 2.05.an affiliate thereof;
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Ameriquest Mortgage Securities Inc Asset-Backed Pass-Through Certificates Series 2004-R7), Pooling and Servicing Agreement (Ameriquest Mortgage Securities Inc Asset-Backed Pass-Through Certificates Series 2004-R7)
Representations, Warranties and Covenants of the Master Servicer. (a) The Master Servicer hereby represents, warrants and covenants to the Trust Administrator and the Trustee, for the benefit of each of the Trustee, the Trust Administrator, the Certificateholders Trustee and the Certificateholders, and to the Depositor Guarantor and Depositor, that as of the Closing Date or as of such date specifically provided herein:
(i) The Master Servicer is a corporation duly organized, validly existing and in good standing under the laws of the State state of New York and its incorporation, is duly authorized and qualified to transact any and all business contemplated by this Agreement and has all licenses necessary to be carry on its business as now being conducted and is licensed, qualified and in good standing in the states where the Mortgaged Properties are located if the laws of such state require licensing or qualification in order to conduct business of the type conducted by the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification ensure the enforceability or validity of each Mortgage Loan and, in any event, is in compliance with the doing business laws of any such State, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to service the Mortgage Loans in accordance with the terms of this Agreement;
(ii) The Master Servicer has the full corporate power and authority to service each Mortgage Loan, and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary corporate action on the part of the Master Servicer the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties heretoDepositor, the Guarantor, the Trust Administrator and the Trustee, constitutes a legal, valid and binding obligation of the Master Servicer, enforceable against the Master Servicer in accordance with its terms, except to the extent that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ ' rights generally and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought;.
(iii) The execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunder, the consummation by the Master Servicer of any other of the transactions herein contemplated, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Master Servicer and will not (A) result in a breach of any term or provision of the charter or by-laws of the Master Servicer or (B) conflict with, result in a breach, violation or acceleration of, or result in a default under, the terms of any other material agreement or instrument to which the Master Servicer is a party or by which it may be bound, or any statute, order or regulation applicable to the Master Servicer of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Master Servicer; and the Master Servicer 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 body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects or, to the Master Servicer’s 's knowledge, would in the future materially and adversely affect, (x) the ability of the Master Servicer to perform its obligations under this Agreement or (y) the business, operations, financial condition, properties or assets of the Master Servicer taken as a whole;
(iv) The Master Servicer is an approved seller/servicer for Fxxxxx Mxx Xxxxxx Xxx or Fxxxxxx Xxxxxxx Mac in good standing and is a HUD approved mortgagee pursuant to Section 203 and Section 211 of the National Housing Act;
(v) No litigation is pending against the Master Servicer that would materially and adversely affect the execution, delivery or enforceability of this Agreement or the ability of the Master Servicer to service the Mortgage Loans or to perform any of its other obligations hereunder in accordance with the terms hereof;
(vi) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the consummation by the Master Servicer of the transactions contemplated by this Agreement, except for such consents, approvals, authorizations or orders, if any, that have been obtained prior to the Closing Date;
(vii) The Master Servicer covenants that information set forth in the Prepayment Charge Schedule is complete, true and correct in all material respects at the date or dates respecting which such information is furnished and each Prepayment Charge is permissible and enforceable in accordance with its computer terms under applicable law upon the Mortgagor's full and voluntary principal prepayment (except to the extent that: (1) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other systems used similar laws relating to creditors' rights generally; or (2) the collectability thereof may be limited due to acceleration in servicing connection with a foreclosure or other involuntary prepayment); provided that the Mortgage Loans operate representation, warranty and covenant contained in a manner such that this clause (vii) is made by the Master Servicer can service the Mortgage Loans only in accordance with the terms of this Agreementits capacity as Seller; and
(viii) The Master Servicer (will not waive any Prepayment Charge or part of a Prepayment Charge unless such waiver is related to a default or a Sub-Servicer reasonably foreseeable default and would maximize recovery of total proceeds taking into account the value of such Prepayment Charge and related Mortgage Loan and doing so is standard and customary in servicing mortgage loans similar to the Mortgage Loans on its behalf) is (including any waiver of a member of MERS in good standing, and will comply in all material respects with the rules and procedures of MERS Prepayment Charge in connection with a refinancing of a Mortgage Loan that is related to a default or a reasonably foreseeable default).
(ix) For each Mortgage Loan, the servicing Master Servicer will accurately, fully and in a timely manner report its borrower credit files to each of Equifax, Transunion, and Experian (the Mortgage Loans that are registered with MERS. "Credit Repositories").
(b) It is understood and agreed that the representations, warranties and covenants set forth in this Section 2.05 2.04 shall survive delivery of the Mortgage Files to the Trustee or to a Custodian on its behalf Trust Administrator and shall inure to the benefit of the TrusteeTrust Administrator, the Trust AdministratorTrustee, the Depositor and the Certificateholders. Upon discovery by any of the Depositor, the Master Servicer, the Trust Administrator or the Trustee of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any Mortgage Loan Loan, Prepayment Charge or the interests therein of the Certificateholders, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the Trusteeother of such parties. Subject to Section 7.01, the The obligation of the Master Servicer set forth in Section 2.03(c) to cure breaches (or, in the case of (a)(vii) or (a)(viii) above, to pay a Master Servicer Prepayment Charge Payment Amount) shall constitute the sole remedies remedy against the Master Servicer available to the Certificateholders, the Depositor, the Guarantor, the Trust Administrator or the Trustee on behalf of the Certificateholders respecting a breach of the representations, warranties and covenants contained in this Section 2.052.04. The preceding sentence shall not, however, limit any remedies available to the Certificateholders, the Depositor, the Guarantor, the Trust Administrator or the Trustee on behalf of the Certificateholders, (i) pursuant to the Mortgage Loan Purchase Agreement signed by the Master Servicer in its capacity as Seller, respecting a breach of the representations, warranties and covenants of the Master Servicer in its capacity as Seller contained in the Mortgage Loan Purchase Agreement or (ii) pursuant to Section 7.01 hereof.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Long Beach Mort Loan Trust 2002-1as Back Cert Ser 2002-1), Pooling and Servicing Agreement (Long Beach Mort Loan Tr 2001-4 as Bk Cert Ser 2001-4)
Representations, Warranties and Covenants of the Master Servicer. The Master Servicer hereby represents, warrants and covenants to the Trust Administrator and the Trustee, for the benefit of each of the Trustee, the Trust Administrator, Trustee and the Certificateholders and to the Depositor that as of the Closing Date or as of such date specifically provided herein:
(i) The Master Servicer is a corporation duly organized, validly existing existing, and in good standing under the laws of the State jurisdiction of New York its formation and has all licenses necessary to carry on its business as now being conducted and is duly authorized licensed, qualified and qualified in good standing in the states where the Mortgaged Property is located if the laws of such state require licensing or qualification in order to transact any and all conduct business contemplated by this Agreement to be of the type conducted by the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent necessary to ensure its ability to enforce the enforceability or validity of each Mortgage Loan and to service Loan; the Mortgage Loans in accordance with the terms of this Agreement;
(ii) The Master Servicer has the full corporate power and authority to service each Mortgage Loan, execute and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary corporate action on the part of the Master Servicer to perform in accordance herewith; the execution, delivery and performance of this Agreement; and Agreement (including all instruments of transfer to be delivered pursuant to this Agreement, assuming the due authorization, execution and delivery thereof ) by the other parties heretoMaster Servicer and the consummation of the transactions contemplated hereby have been duly and validly authorized; this Agreement evidences the valid, constitutes a legal, valid binding and binding enforceable obligation of the Master Servicer, enforceable against subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally; and all requisite corporate action has been taken by the Master Servicer to make this Agreement valid and binding upon the Master Servicer in accordance with its terms, except to the extent that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ rights generally and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought;
(iiiii) The execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunder, the consummation of any other of the transactions herein contemplated, and the fulfillment of or compliance with the terms hereof contemplated by this Agreement are in the ordinary course of business of the Master Servicer and will not (A) result in a the breach of any term or provision of the charter or by-laws of the Master Servicer or (B) conflict with, result in a breach, violation the breach of any term or acceleration provision of, or conflict with or constitute a default under or result in a default the acceleration of any obligation under, the terms of any other material agreement, indenture or loan or credit agreement or other instrument to which the Master Servicer or its property is a party or by which it may be boundsubject, or result in the violation of any statutelaw, order rule, regulation, order, judgment or regulation applicable decree to which the Master Servicer or its property is subject;
(iii) The execution and delivery of this Agreement by the Master Servicer and the performance and compliance with its obligations and covenants hereunder do not require the consent or approval of any courtgovernmental authority or, regulatory bodyif such consent or approval is required, administrative agency or governmental body having jurisdiction over it has been obtained;
(iv) This Agreement, and all documents and instruments contemplated hereby which are executed and delivered by the Master Servicer; , constitute and will constitute valid, legal and binding obligations of the Master Servicer, enforceable in accordance with their respective terms, except as the enforcement thereof may be limited by applicable bankruptcy laws and general principles of equity;
(v) [Reserved]
(vi) The Master Servicer does not believe, nor does it have any reason or cause to believe, that it cannot perform each and every covenant contained in this Agreement;
(vii) There is no action, suit, proceeding or investigation pending or, to its knowledge, threatened against the Master Servicer is not a party tothat, bound by, either individually 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 body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects or, to the Master Servicer’s knowledge, would in the future materially and adversely affectaggregate, (xA) the ability of the Master Servicer to perform its obligations under this Agreement or (y) may result in any change in the business, operations, financial condition, properties or assets of the Master Servicer taken as a whole;
(iv) The Master Servicer is an approved seller/servicer for Fxxxxx Mxx that might prohibit or Fxxxxxx Mac in good standing and is a HUD approved mortgagee pursuant to Section 203 of the National Housing Act;
(v) No litigation is pending against the Master Servicer that would materially and adversely affect the executionperformance by such Master Servicer of its obligations under, delivery or validity or enforceability of, this Agreement, or (B)may result in any material impairment of the right or ability of the Master Servicer to carry on its business substantially as now conducted, or (C) may result in any material liability on the part of the Master Servicer, or (D) would draw into question the validity or enforceability of this Agreement or of any action taken or to be taken in connection with the obligations of the Master Servicer contemplated herein, or (E) would otherwise be likely to impair materially the ability of the Master Servicer to service the Mortgage Loans or to perform any of its other obligations hereunder in accordance with under the terms hereofof this Agreement;
(viviii) No consentNeither this Agreement nor any information, approvalcertificate of an officer, authorization statement furnished in writing or order of any court or governmental agency or body is required for report delivered to the execution, delivery and performance Trustee by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the consummation of in connection with the transactions contemplated by this Agreement, except for such consents, approvals, authorizations or orders, if any, that have been obtained prior to the Closing Datehereby contains any untrue statement of a material fact;
(viiix) The Master Servicer covenants that its computer and other systems used in servicing the Mortgage Loans operate in a manner such that the Master Servicer can service the Mortgage Loans in accordance with the terms of this Agreement;
(x) The information set forth in the Prepayment Charge Schedule (including the Prepayment Charge Summary attached thereto) is complete, true and correct in all material respects on the date or dates when such information is furnished and each Prepayment Charge is permissible and enforceable in accordance with its terms (except to the extent that the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws affecting creditor's rights generally or the collectibility thereof may be limited due to acceleration in connection with a foreclosure) under applicable state law;
(xi) The Master Servicer will not waive any Prepayment Charge unless it is waived in accordance with the standard set forth in Section 3.01; and
(viiixii) The Master Servicer (or a Sub-Servicer servicing the Mortgage Loans on will accurately and fully report its behalf) is a member of MERS in good standing, and will comply in all material respects with the rules and procedures of MERS in connection with the servicing borrower credit files to each of the Mortgage Loans that are registered with MERSCredit Repositories in a timely manner. It is understood and agreed that the representations, warranties and covenants set forth in this Section 2.05 shall survive delivery of the Mortgage Files to the Trustee or to a Custodian on its behalf and shall inure to the benefit of the Trustee, the Trust Administrator, the Depositor and the Certificateholders. Upon discovery by any of the Depositor, the NIMS Insurer, the Master Servicer, the Trust Administrator Originator or the Trustee of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any Mortgage Loan Loan, Prepayment Charge or the interests therein of the Certificateholders, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the Master Servicer, the Originator, the NIMS Insurer and the Trustee. Subject to Section 7.01Notwithstanding the foregoing, within 90 days of the obligation earlier of discovery by the Master Servicer or receipt of notice by the Master Servicer of the breach of the representation or covenant of the Master Servicer (in its capacity as Originator) set forth in Section 2.03(cSections 2.05(x) to cure breaches shall constitute or 2.05(xi) above which materially and adversely affects the sole remedies against interests of the Holders of the Class P Certificates in any Prepayment Charge, the Master Servicer shall remedy such breach as follows: (a) if the representation made by the Master Servicer (in its capacity as Originator) in Section 2.05(x) above is breached and a Principal Prepayment has occurred in the applicable Prepayment Period or if a change of law subsequent to the Closing Date limits the enforceability of a Prepayment Charge (other than in the circumstances provided in Section 2.05(x) above), the Master Servicer (in its capacity as Originator) must pay the amount of the scheduled Prepayment Charge, for the benefit of the Holders of the Class P Certificates, by depositing such amount into the Collection Account, net of any amount previously collected by the Master Servicer and paid by the Master Servicer, for the benefit of the Holders of the Class P Certificates, in respect of such Prepayment Charge; and (b) if any of the covenants made by the Master Servicer in Section 2.05(xi) above is breached, the Master Servicer must pay the amount of such waived Prepayment Charge, for the benefit of the Holders of the Class P Certificates, by depositing such amount into the Collection Account. The foregoing shall not, however, limit any remedies available to the Certificateholders, the Depositor, the Trust Administrator Depositor or the Trustee on behalf of the Certificateholders Certificateholders, pursuant to the Mortgage Loan Purchase Agreement signed by the Master Servicer in its capacity as Originator, respecting a breach of the representations, warranties and covenants of the Master Servicer in its capacity as Originator contained in this Section 2.05the Mortgage Loan Purchase Agreement.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Option One Mort Accept Corp Asset Backed Cert Ser 2002-3), Pooling and Servicing Agreement (Option One Mortgage Accept Corp Asset-Backed Cert Se 2002-6)
Representations, Warranties and Covenants of the Master Servicer. The Master Servicer hereby represents, warrants and covenants to the Trust Administrator and the Trustee, for the benefit of each of the Trustee, the Trust Administrator, the Certificateholders and to the Depositor that as of the Closing Date or as of such date specifically provided herein:
(i) The Master Servicer is a corporation duly organized, validly existing and in good standing under the laws of the State of New York Delaware and is duly authorized and qualified to transact any and all business contemplated by this Agreement to be conducted by the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to service the Mortgage Loans in accordance with the terms of this Agreement;
(ii) The Master Servicer has the full corporate power and authority to service each Mortgage Loan, and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary corporate action on the part of the Master Servicer the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties heretoDepositor and the Trustee, constitutes a legal, valid and binding obligation of the Master Servicer, enforceable against the Master Servicer in accordance with its terms, except to the extent that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ ' rights generally and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought;
(iii) The execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunder, the consummation of any other of the transactions herein contemplated, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Master Servicer and will not (A) result in a breach of any term or provision of the charter or by-laws of the Master Servicer or (B) conflict with, result in a breach, violation or acceleration of, or result in a default under, the terms of any other material agreement or instrument to which the Master Servicer is a party or by which it may be bound, or any statute, order or regulation applicable to the Master Servicer of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Master Servicer; and the Master Servicer 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 body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects or, to the Master Servicer’s 's knowledge, would in the future materially and adversely affect, (x) the ability of the Master Servicer to perform its obligations under this Agreement or (y) the business, operations, financial condition, properties or assets of the Master Servicer taken as a whole;
(iv) The Master Servicer is an approved seller/servicer for Fxxxxx Mxx Xxxxxx Xxx or Fxxxxxx Xxxxxxx Mac in good standing and is a HUD approved mortgagee pursuant to Section 203 and Section 211 of the National Housing Act;
(v) No litigation is pending against the Master Servicer that would materially and adversely affect the execution, delivery or enforceability of this Agreement or the ability of the Master Servicer to service the Mortgage Loans or to perform any of its other obligations hereunder in accordance with the terms hereof;
(vi) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the consummation of the transactions contemplated by this Agreement, except for such consents, approvals, authorizations or orders, if any, that have been obtained prior to the Closing Date;
(vii) The information set forth in the Prepayment Charge Schedule (including the prepayment charge summary attached thereto) is complete, true and correct in all material respects at the date or dates respecting which such information is furnished and each Prepayment Charge is permissible and enforceable in accordance with its terms (except to the extent that (i) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally, (ii) the collectability thereof may be limited due to acceleration in connection with a foreclosure or other involuntary payment and (iii) subsequent changes in applicable law may limit or prohibit the enforceability thereof) under applicable state law;
(viii) The Master Servicer covenants will not waive any Prepayment Charge or part of a Prepayment Charge unless, in the Master Servicer's reasonable judgment as described in Section 3.01 hereof, such waiver would maximize recovery of total proceeds taking into account the value of such Prepayment Charge and related Mortgage Loan and doing so is standard and customary in servicing similar Mortgage Loans (including any waiver of a Prepayment Charge in connection with a refinancing of a Mortgage Loan that its is related to a default or a reasonably foreseeable default) and in no event will it waive a Prepayment Charge in connection with a refinancing of a Mortgage Loan that is not related to a default or a reasonably foreseeable default;
(ix) The Master Servicer's computer and other systems used in servicing the Mortgage Loans mortgage loans will be modified and maintained to operate in a manner such that at all times, including on and after January 1, 2000, (i) the Master Servicer can service the Mortgage Loans in accordance with the terms of this AgreementAgreement if necessary and (ii) the Master Servicer can operate its business in the same manner as it is operating on the date hereof; provided that the Master Servicer's ability to meet the requirements of this representation may be limited in circumstances where it relies (after reasonable due diligence in inquiring into and obtaining reasonable compliance representations) on third party systems which are incompatible with those of the Master Servicer on or after January 1, 2000; and
(viiix) The Master Servicer (information set forth in the "monthly tape" provided to the Trustee or a Sub-Servicer servicing the Mortgage Loans on any of its behalf) affiliates is a member of MERS in good standing, true and will comply correct in all material respects with the rules and procedures of MERS in connection with the servicing of the Mortgage Loans that are registered with MERSrespects. It is understood and agreed that the representations, warranties and covenants set forth in this Section 2.05 shall survive delivery of the Mortgage Files to the Trustee or to a Custodian on its behalf Custodian, as the case may be, and shall inure to the benefit of the Trustee, the Trust Administrator, the Depositor and the Certificateholders. Upon discovery by any of the Depositor, the Master Servicer, the Trust Administrator Servicer or the Trustee of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any Mortgage Loan Loan, Prepayment Charge or the interests therein of the Certificateholders, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the Trustee. Subject to Section 7.01, the obligation of the Master Servicer set forth in Section 2.03(c) to cure breaches shall constitute the sole remedies against the Master Servicer available to the Certificateholders, the Depositor, the Trust Administrator Depositor or the Trustee on behalf of the Certificateholders respecting a breach of the representations, warranties and covenants contained in this Section 2.05. The preceding sentence shall not, however, limit any remedies available to the Certificateholders, the Depositor or the Trustee on behalf of the Certificateholders, pursuant to the Mortgage Loan Purchase Agreement signed by the Master Servicer in its capacity as Seller, respecting a breach of the representations, warranties and covenants of the Master Servicer in its capacity as Seller contained in such Mortgage Loan Purchase Agreement.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Salomon Brothers Mort Sec Vii Inc Fl Rte Cert Se 1999-Aq2), Pooling and Servicing Agreement (Salomon Bros Mort Sec Vii Inc Fl Rt MRT Ps THR Cert 1999 Aq1)
Representations, Warranties and Covenants of the Master Servicer. The Master Servicer hereby represents, warrants and covenants to the Trust Administrator and the Trustee, for the benefit of each of the Trustee, the Trust Administrator, the Certificateholders and to the Depositor that as of the Closing Date or as of such date specifically provided herein:
(i) The Master Servicer is a corporation duly organized, validly existing and in good standing under the laws of the State of New York Delaware and is duly authorized and qualified to transact any and all business contemplated by this Agreement to be conducted by the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to service the Mortgage Loans in accordance with the terms of this Agreement;
(ii) The Master Servicer has the full corporate power and authority to service each Mortgage Loan, and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary corporate action on the part of the Master Servicer the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties heretoDepositor and the Trustee, constitutes a legal, valid and binding obligation of the Master Servicer, enforceable against the Master Servicer in accordance with its terms, except to the extent that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ ' rights generally and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought;
(iii) The execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunder, the consummation of any other of the transactions herein contemplated, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Master Servicer and will shall not (A) result in a breach of any term or provision of the charter or by-laws of the Master Servicer or (B) conflict with, result in a breach, violation or acceleration of, or result in a default under, the terms of any other material agreement or instrument to which the Master Servicer is a party or by which it may be bound, or any statute, order or regulation applicable to the Master Servicer of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Master Servicer; and the Master Servicer 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 body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects or, to the Master Servicer’s 's knowledge, would in the future materially and adversely affect, (x) the ability of the Master Servicer to perform its obligations under this Agreement or (y) the business, operations, financial condition, properties or assets of the Master Servicer taken as a whole;
(iv) The Master Servicer is an approved seller/servicer for Fxxxxx Fannie Mae or Freddie Mxx or Fxxxxxx Mac in good standing and xx gxxx staxxxxx xnd is a HUD approved mortgagee pursuant to Section 203 and Section 211 of the National Housing Act;
(v) No Except as disclosed in the Prospectus Supplement, no litigation is pending against the Master Servicer that would materially and adversely affect the execution, delivery or enforceability of this Agreement or the ability of the Master Servicer to service the Mortgage Loans or to perform any of its other obligations hereunder in accordance with the terms hereof;
(vi) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the consummation of the transactions contemplated by this Agreement, except for such consents, approvals, authorizations or orders, if any, that have been obtained prior to the Closing Date;
(vii) The Master Servicer covenants that its computer information set forth in the Prepayment Charge Schedule attached hereto as Schedule 2 (including the prepayment charge summary attached thereto) is complete, true and other systems used correct in servicing all material respects at the Mortgage Loans operate in a manner date or dates respecting which such that the Master Servicer can service the Mortgage Loans information is furnished and each Prepayment Charge is permissible and enforceable in accordance with its terms (except to the terms of this Agreement; andextent that (i) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally and (ii) the collectability thereof may be limited due to acceleration in connection with a foreclosure or other involuntary payment;
(viii) The Master Servicer shall not waive any Prepayment Charge or part of a Prepayment Charge unless, (i) the enforceability thereof shall have been limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally or a Sub-Servicer servicing (ii) the Mortgage Loans on its behalf) is a member of MERS in good standing, and will comply in all material respects with the rules and procedures of MERS collectability thereof shall have been limited due to acceleration in connection with a foreclosure or other involuntary payment or (iii) in the Master Servicer's reasonable judgment as described in Section 3.01 hereof, (x) such waiver relates to a default or a reasonably foreseeable default, (y) such waiver would maximize recovery of total proceeds taking into account the value of such Prepayment Charge and related Mortgage Loan and (z) doing so is standard and customary in servicing of the similar Mortgage Loans (including any waiver of a Prepayment Charge in connection with a refinancing of a Mortgage Loan that are registered is related to a default or a reasonably foreseeable default). In no event shall the Master Servicer waive a Prepayment Charge in connection with MERS. It a refinancing of a Mortgage Loan that is understood and agreed that the representations, warranties and covenants not related to a default or a reasonably foreseeable default;
(ix) The information set forth in this Section 2.05 shall survive delivery of the Mortgage Files "monthly tape" provided to the Trustee or any of its affiliates is true and correct in all material respects;
(x) With respect to a Custodian on its behalf and shall inure to each Mortgage Loan, the benefit Assignment is in recordable form; (except that the name of the Trustee, the Trust Administrator, the Depositor assignee and the Certificateholders. Upon discovery by any of the Depositor, the Master Servicer, the Trust Administrator or the Trustee of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any recording information with respect to such Mortgage Loan or is blank) and each Mortgage Loan was originated in the interests therein of the Certificateholders, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the Trustee. Subject to Section 7.01, the obligation name of the Master Servicer set forth in Section 2.03(c) to cure breaches shall constitute the sole remedies against the Master Servicer available to the Certificateholders, the Depositor, the Trust Administrator or the Trustee on behalf of the Certificateholders respecting a breach of the representations, warranties and covenants contained in this Section 2.05.an affiliate thereof;
Appears in 1 contract
Representations, Warranties and Covenants of the Master Servicer. The Master Servicer hereby represents, warrants and covenants to the Trust Administrator Issuer and the Indenture Trustee, for the benefit of each of the Indenture Trustee, the Trust Administrator, the Certificateholders Noteholders and to the Depositor that as of the Closing Date or as of such date specifically provided herein:
(i) The Master Servicer is a corporation duly organized, validly existing and in good standing under the laws of the State of New York Delaware and is duly authorized and qualified to transact any and all business contemplated by this Agreement to be conducted by the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to service the Mortgage Loans in accordance with the terms of this Agreement;
(ii) The Master Servicer has the full corporate power and authority to service each Mortgage Loan, and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary corporate action on the part of the Master Servicer the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties hereto, constitutes a legal, valid and binding obligation of the Master Servicer, enforceable against the Master Servicer in accordance with its terms, except to the extent that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ ' rights generally and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought;
(iii) The execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunder, the consummation of any other of the transactions herein contemplated, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Master Servicer and will not (A) result in a breach of any term or provision of the charter or by-laws of the Master Servicer or (B) conflict with, result in a breach, violation or acceleration of, or result in a default under, the terms of any other material agreement or instrument to which the Master Servicer is a party or by which it may be bound, or any statute, order or regulation applicable to the Master Servicer of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Master Servicer; and the Master Servicer 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 body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects or, to the Master Servicer’s 's knowledge, would in the future materially and adversely affect, (x) the ability of the Master Servicer to perform its obligations under this Agreement or (y) the business, operations, financial condition, properties or assets of the Master Servicer taken as a whole;
(iv) The Master Servicer is an approved seller/servicer for Fxxxxx Mxx Xxxxxx Xxx or Fxxxxxx Xxxxxxx Mac in good standing and is a HUD approved mortgagee pursuant to Section 203 and Section 211 of the National Housing Act;
(v) No Except as disclosed in the Prospectus Supplement, no litigation is pending against the Master Servicer that would materially and adversely affect the execution, delivery or enforceability of this Agreement or the ability of the Master Servicer to service the Mortgage Loans or to perform any of its other obligations hereunder in accordance with the terms hereof;
(vi) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the consummation of the transactions contemplated by this Agreement, except for such consents, approvals, authorizations or orders, if any, that have been obtained prior to the Closing Date;
(vii) The Master Servicer covenants that information set forth in the "monthly tape" provided to the Indenture Trustee or any of its computer affiliates is true and other systems used correct in servicing the Mortgage Loans operate in a manner such that the Master Servicer can service the Mortgage Loans in accordance with the terms of this Agreement; andall material respects;
(viii) The Master Servicer With respect to each Mortgage Loan, the Assignment is in recordable form; (or a Sub-Servicer servicing except that the Mortgage Loans on its behalf) is a member of MERS in good standing, and will comply in all material respects with the rules and procedures of MERS in connection with the servicing name of the Mortgage Loans that are registered with MERS. It is understood and agreed that the representations, warranties and covenants set forth in this Section 2.05 shall survive delivery of the Mortgage Files to the Trustee or to a Custodian on its behalf and shall inure to the benefit of the Trustee, the Trust Administrator, the Depositor assignee and the Certificateholders. Upon discovery by any of the Depositor, the Master Servicer, the Trust Administrator or the Trustee of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any recording information with respect to such Mortgage Loan or is blank) and each Mortgage Loan was originated in the interests therein of the Certificateholders, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the Trustee. Subject to Section 7.01, the obligation name of the Master Servicer set forth in Section 2.03(c) to cure breaches shall constitute the sole remedies against the Master Servicer available to the Certificateholders, the Depositor, the Trust Administrator or the Trustee on behalf of the Certificateholders respecting a breach of the representations, warranties and covenants contained in this Section 2.05.an affiliate thereof;
Appears in 1 contract
Samples: Sale and Servicing Agreement (Argent Securities Inc)
Representations, Warranties and Covenants of the Master Servicer. The Master Servicer hereby represents, warrants and covenants to the Trust Administrator and the Trustee, for the benefit of each of the Trustee, the Trust Administrator, the Certificateholders and to the Depositor that as of the Closing Date or as of such date specifically provided herein:
(i) The Master Servicer is a corporation duly organized, validly existing existing, and in good standing under the laws of the State jurisdiction of New York its formation and has all licenses necessary to carry on its business as now being conducted and is duly authorized licensed, qualified and qualified in good standing in the states where the Mortgaged Property is located if the laws of such state require licensing or qualification in order to transact any and all conduct business contemplated by this Agreement to be of the type conducted by the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent necessary to ensure its ability to enforce the enforceability or validity of each Mortgage Loan and to service Loan; the Mortgage Loans in accordance with the terms of this Agreement;
(ii) The Master Servicer has the full corporate power and authority to service each Mortgage Loan, execute and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary corporate action on the part of the Master Servicer to perform in accordance herewith; the execution, delivery and performance of this Agreement; and Agreement (including all instruments of transfer to be delivered pursuant to this Agreement, assuming the due authorization, execution and delivery thereof ) by the other parties heretoMaster Servicer and the consummation of the transactions contemplated hereby have been duly and validly authorized; this Agreement evidences the valid, constitutes a legal, valid binding and binding enforceable obligation of the Master Servicer, enforceable against subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally; and all requisite corporate action has been taken by the Master Servicer to make this Agreement valid and binding upon the Master Servicer in accordance with its terms, except to the extent that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ rights generally and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought;
(iiiii) The execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunder, the consummation of any other of the transactions herein contemplated, and the fulfillment of or compliance with the terms hereof contemplated by this Agreement are in the ordinary course of business of the Master Servicer and will not (A) result in a the breach of any term or provision of the charter or by-laws of the Master Servicer or (B) conflict with, result in a breach, violation the breach of any term or acceleration provision of, or conflict with or constitute a default under or result in a default the acceleration of any obligation under, the terms of any other material agreement, indenture or loan or credit agreement or other instrument to which the Master Servicer or its property is a party or by which it may be boundsubject, or result in the violation of any statutelaw, order rule, regulation, order, judgment or regulation applicable decree to which the Master Servicer or its property is subject;
(iii) The execution and delivery of this Agreement by the Master Servicer and the performance and compliance with its obligations and covenants hereunder do not require the consent or approval of any courtgovernmental authority or, regulatory bodyif such consent or approval is required, administrative agency or governmental body having jurisdiction over it has been obtained;
(iv) This Agreement, and all documents and instruments contemplated hereby which are executed and delivered by the Master Servicer; , constitute and will constitute valid, legal and binding obligations of the Master Servicer, enforceable in accordance with their respective terms, except as the enforcement thereof may be limited by applicable bankruptcy laws and general principles of equity;
(v) [Reserved];
(vi) The Master Servicer does not believe, nor does it have any reason or cause to believe, that it cannot perform each and every covenant contained in this Agreement;
(vii) There is no action, suit, proceeding or investigation pending or, to its knowledge, threatened against the Master Servicer is not a party tothat, bound by, either individually 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 body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects or, to the Master Servicer’s knowledge, would in the future materially and adversely affectaggregate, (xA) the ability of the Master Servicer to perform its obligations under this Agreement or (y) may result in any change in the business, operations, financial condition, properties or assets of the Master Servicer taken as a whole;
(iv) The Master Servicer is an approved seller/servicer for Fxxxxx Mxx that might prohibit or Fxxxxxx Mac in good standing and is a HUD approved mortgagee pursuant to Section 203 of the National Housing Act;
(v) No litigation is pending against the Master Servicer that would materially and adversely affect the executionperformance by such Master Servicer of its obligations under, delivery or validity or enforceability of, this Agreement, or (B) may result in any material impairment of the right or ability of the Master Servicer to carry on its business substantially as now conducted, or (C) may result in any material liability on the part of the Master Servicer, or (D) would draw into question the validity or enforceability of this Agreement or of any action taken or to be taken in connection with the obligations of the Master Servicer contemplated herein, or (E) would otherwise be likely to impair materially the ability of the Master Servicer to service the Mortgage Loans or to perform any of its other obligations hereunder in accordance with under the terms hereofof this Agreement;
(viviii) No consentNeither this Agreement nor any information, approvalcertificate of an officer, authorization statement furnished in writing or order of any court or governmental agency or body is required for report delivered to the execution, delivery and performance Trustee by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the consummation of in connection with the transactions contemplated by this Agreement, except for such consents, approvals, authorizations or orders, if any, that have been obtained prior to the Closing Datehereby contains any untrue statement of a material fact;
(viiix) The Master Servicer covenants that its computer and other systems used in servicing the Mortgage Loans operate in a manner such that the Master Servicer can service the Mortgage Loans in accordance with the terms of this Agreement;
(x) The information set forth in the Prepayment Charge Schedule (including the Prepayment Charge Summary attached thereto) is complete, true and correct in all material respects on the date or dates when such information is furnished and each Prepayment Charge is permissible and enforceable in accordance with its terms (except to the extent that the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws affecting creditor's rights generally or the collectibility thereof may be limited due to acceleration in connection with a foreclosure) under applicable state law;
(xi) The Master Servicer will not waive any Prepayment Charge unless it is waived in accordance with the standard set forth in Section 3.01; and
(viiixii) The Master Servicer (or a Sub-Servicer servicing the Mortgage Loans on its behalf) is a member of MERS in good standinghas accurately and fully reported, and will comply in all material respects with the rules continue to accurately and procedures of MERS in connection with the servicing fully report, its borrower credit files to each of the Mortgage Loans that are registered with MERScredit repositories in a timely manner. It is understood and agreed that the representations, warranties and covenants set forth in this Section 2.05 shall survive delivery of the Mortgage Files to the Trustee or to a Custodian on its behalf and shall inure to the benefit of the Trustee, the Trust Administrator, the Depositor and the Certificateholders. Upon discovery by any of the Depositor, the Master Servicer, the Trust Administrator NIMS Insurer or the Trustee of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any Mortgage Loan or the interests therein of the Certificateholders, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the NIMS Insurer and the Trustee. Subject to Section 7.01, unless such breach shall not be susceptible of cure within 90 days, the obligation of the Master Servicer set forth in this Section 2.03(c) 2.05 to cure breaches shall constitute the sole remedies remedy against the Master Servicer available to the Certificateholders, the Depositor, the Trust Administrator or Depositor and the Trustee on behalf of the Certificateholders respecting a breach of the representations, warranties and covenants contained in this Section 2.05. Notwithstanding the foregoing, within 90 days of the earlier of discovery by the Master Servicer or receipt of notice by the Master Servicer of the breach of the representation or covenant of the Master Servicer (in its capacity as Originator) set forth in Sections 2.05(x) or 2.05(xi) above which materially and adversely affects the interests of the Holders of the Class P Certificates in any Prepayment Charge, the Master Servicer shall remedy such breach as follows: (a) if the representation made by the Master Servicer (in its capacity as Originator) in Section 2.05(x) above is breached and a Principal Prepayment has occurred in the applicable Prepayment Period or if a change of law subsequent to the Closing Date limits the enforceability of a Prepayment Charge (other than in the circumstances provided in Section 2.05(x) above), the Master Servicer (in its capacity as Originator) must pay the amount of the scheduled Prepayment Charge, for the benefit of the Holders of the Class P Certificates, by depositing such amount into the Collection Account, net of any amount previously collected by the Master Servicer and paid by the Master Servicer, for the benefit of the Holders of the Class P Certificates, in respect of such Prepayment Charge; and (b) if any of the covenants made by the Master Servicer in Section 2.05(xi) above is breached, the Master Servicer must pay the amount of such waived Prepayment Charge, for the benefit of the Holders of the Class P Certificates, by depositing such amount into the Collection Account.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Mastr Asset Backed Securities Trust 2004-Opt1)
Representations, Warranties and Covenants of the Master Servicer. The Master Servicer hereby represents, warrants and covenants to the Trust Administrator and the Trustee, for the benefit of each of the Trustee, the Trust Administrator, the Certificateholders and to the Depositor that as of the Closing Date or as of such date specifically provided herein:
(i) The Master Servicer is a corporation duly organized, validly existing and in good standing under the laws of the State of New York Delaware and is duly authorized and qualified to transact any and all business contemplated by this Agreement to be conducted by the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to service the Mortgage Loans in accordance with the terms of this Agreement;
(ii) The Master Servicer has the full corporate power and authority to service each Mortgage Loan, and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary corporate action on the part of the Master Servicer the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties heretoDepositor and the Trustee, constitutes a legal, valid and binding obligation of the Master Servicer, enforceable against the Master Servicer in accordance with its terms, except to the extent that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ ' rights generally and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought;
(iii) The execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunder, the consummation of any other of the transactions herein contemplated, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Master Servicer and will shall not (A) result in a breach of any term or provision of the charter or by-laws of the Master Servicer or (B) conflict with, result in a breach, violation or acceleration of, or result in a default under, the terms of any other material agreement or instrument to which the Master Servicer is a party or by which it may be bound, or any statute, order or regulation applicable to the Master Servicer of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Master Servicer; and the Master Servicer 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 body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects or, to the Master Servicer’s 's knowledge, would in the future materially and adversely affect, (x) the ability of the Master Servicer to perform its obligations under this Agreement or (y) the business, operations, financial condition, properties or assets of the Master Servicer taken as a whole;
(iv) The Master Servicer is an approved seller/servicer for Fxxxxx Mxx Fannie Mae or Fxxxxxx Freddie Mac in good standing and is xxxx xtxxxing xxx xx a HUD approved mortgagee pursuant to Section 203 and Section 211 of the National Housing Act;
(v) No Except as disclosed in the Prospectus Supplement, no litigation is pending against the Master Servicer that would materially and adversely affect the execution, delivery or enforceability of this Agreement or the ability of the Master Servicer to service the Mortgage Loans or to perform any of its other obligations hereunder in accordance with the terms hereof;
(vi) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the consummation of the transactions contemplated by this Agreement, except for such consents, approvals, authorizations or orders, if any, that have been obtained prior to the Closing Date;
(vii) The Master Servicer covenants that its computer information set forth in the Prepayment Charge Schedule attached hereto as Schedule 2 (including the prepayment charge summary attached thereto) is complete, true and other systems used correct in servicing all material respects at the Mortgage Loans operate in a manner date or dates respecting which such that the Master Servicer can service the Mortgage Loans information is furnished and each Prepayment Charge is permissible and enforceable in accordance with its terms (except to the terms of this Agreement; andextent that (i) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally and (ii) the collectability thereof may be limited due to acceleration in connection with a foreclosure or other involuntary payment;
(viii) The Master Servicer shall not waive any Prepayment Charge or part of a Prepayment Charge unless, (i) the enforceability thereof shall have been limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally or a Sub-Servicer servicing (ii) the Mortgage Loans on its behalf) is a member of MERS in good standing, and will comply in all material respects with the rules and procedures of MERS collectability thereof shall have been limited due to acceleration in connection with a foreclosure or other involuntary payment or (iii) in the Master Servicer's reasonable judgment as described in Section 3.01 hereof, (x) such waiver relates to a default or a reasonably foreseeable default, (y) such waiver would maximize recovery of total proceeds taking into account the value of such Prepayment Charge and related Mortgage Loan and (z) doing so is standard and customary in servicing of the similar Mortgage Loans (including any waiver of a Prepayment Charge in connection with a refinancing of a Mortgage Loan that are registered is related to a default or a reasonably foreseeable default). In no event shall the Master Servicer waive a Prepayment Charge in connection with MERS. It a refinancing of a Mortgage Loan that is understood and agreed that the representations, warranties and covenants not related to a default or a reasonably foreseeable default;
(ix) The information set forth in this Section 2.05 shall survive delivery of the Mortgage Files "monthly tape" provided to the Trustee or any of its affiliates is true and correct in all material respects;
(x) With respect to a Custodian on its behalf and shall inure to each Mortgage Loan, the benefit Assignment is in recordable form (except that the name of the Trustee, the Trust Administrator, the Depositor assignee and the Certificateholders. Upon discovery by any of the Depositor, the Master Servicer, the Trust Administrator or the Trustee of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any recording information with respect to such 77 Mortgage Loan or is blank) and each Mortgage Loan was originated in the interests therein of the Certificateholders, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the Trustee. Subject to Section 7.01, the obligation name of the Master Servicer set forth in Section 2.03(c) to cure breaches shall constitute the sole remedies against the Master Servicer available to the Certificateholders, the Depositor, the Trust Administrator or the Trustee on behalf of the Certificateholders respecting a breach of the representations, warranties and covenants contained in this Section 2.05.an affiliate thereof;
Appears in 1 contract
Representations, Warranties and Covenants of the Master Servicer. The Master Servicer hereby represents, warrants and covenants to the Trust Administrator and the Trustee, for the benefit of each of the Trustee, the Trust Administrator, the Certificateholders and to the Depositor that as of the Closing Date or as of such date specifically provided herein:
(i) The Master Servicer is a corporation duly organized, validly existing and in good standing under the laws of the State of New York Delaware and is duly authorized and qualified to transact any and all business contemplated by this Agreement to be conducted by the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to service the Mortgage Loans in accordance with the terms of this Agreement;
(ii) The Master Servicer has the full corporate power and authority to service each Mortgage Loan, and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary corporate action on the part of the Master Servicer the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties heretoDepositor and the Trustee, constitutes a legal, valid and binding obligation of the Master Servicer, enforceable against the Master Servicer in accordance with its terms, except to the extent that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ ' rights generally and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought;
(iii) The execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunder, the consummation of any other of the transactions herein contemplated, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Master Servicer and will shall not (A) result in a breach of any term or provision of the charter or by-laws of the Master Servicer or (B) conflict with, result in a breach, violation or acceleration of, or result in a default under, the terms of any other material agreement or instrument to which the Master Servicer is a party or by which it may be bound, or any statute, order or regulation applicable to the Master Servicer of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Master Servicer; and the Master Servicer 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 body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects or, to the Master Servicer’s 's knowledge, would in the future materially and adversely affect, (x) the ability of the Master Servicer to perform its obligations under this Agreement or (y) the business, operations, financial condition, properties or assets of the Master Servicer taken as a whole;
(iv) The Master Servicer is an approved seller/servicer for Fxxxxx Mxx Fannie Mae or Fxxxxxx Freddie Mac in good standing and is xxxx xtxxxing xxx xx a HUD approved mortgagee pursuant to Section 203 and Section 211 of the National Housing Act;
(v) No Except as disclosed in the Prospectus Supplement, no litigation is pending against the Master Servicer that would materially and adversely affect the execution, delivery or enforceability of this Agreement or the ability of the Master Servicer to service the Mortgage Loans or to perform any of its other obligations hereunder in accordance with the terms hereof;
(vi) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the consummation of the transactions contemplated by this Agreement, except for such consents, approvals, authorizations or orders, if any, that have been obtained prior to the Closing Date;
(vii) The Master Servicer covenants that its computer information set forth in the Prepayment Charge Schedule attached hereto as Schedule 2 (including the prepayment charge summary attached thereto) is complete, true and other systems used correct in servicing all material respects at the Mortgage Loans operate in a manner date or dates respecting which such that the Master Servicer can service the Mortgage Loans information is furnished and each Prepayment Charge is permissible and enforceable in accordance with its terms (except to the terms of this Agreement; andextent that (i) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally and (ii) the collectability thereof may be limited due to acceleration in connection with a foreclosure or other involuntary payment;
(viii) The Master Servicer shall not waive any Prepayment Charge or part of a Prepayment Charge unless, (i) the enforceability thereof shall have been limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally or a Sub-Servicer servicing (ii) the Mortgage Loans on its behalf) is a member of MERS in good standing, and will comply in all material respects with the rules and procedures of MERS collectability thereof shall have been limited due to acceleration in connection with a foreclosure or other involuntary payment or (iii) in the Master Servicer's reasonable judgment as described in Section 3.01 hereof, (x) such waiver relates to a default or a reasonably foreseeable default, (y) such waiver would maximize recovery of total proceeds taking into account the value of such Prepayment Charge and related Mortgage Loan and (z) doing so is standard and customary in servicing of the similar Mortgage Loans (including any waiver of a Prepayment Charge in connection with a refinancing of a Mortgage Loan that are registered is related to a default or a reasonably foreseeable default). In no event shall the Master Servicer waive a Prepayment Charge in connection with MERS. It a refinancing of a Mortgage Loan that is understood and agreed that the representations, warranties and covenants not related to a default or a reasonably foreseeable default;
(ix) The information set forth in this Section 2.05 shall survive delivery of the Mortgage Files "monthly tape" provided to the Trustee or any of its affiliates is true and correct in all material respects;
(x) With respect to a Custodian on its behalf and shall inure to each Mortgage Loan, the benefit Assignment is in recordable form (except that the name of the Trustee, the Trust Administrator, the Depositor assignee and the Certificateholders. Upon discovery by any of the Depositor, the Master Servicer, the Trust Administrator or the Trustee of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any recording information with respect to such Mortgage Loan or is blank) and each Mortgage Loan was originated in the interests therein of the Certificateholders, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the Trustee. Subject to Section 7.01, the obligation name of the Master Servicer set forth in Section 2.03(c) to cure breaches shall constitute the sole remedies against the Master Servicer available to the Certificateholders, the Depositor, the Trust Administrator or the Trustee on behalf of the Certificateholders respecting a breach of the representations, warranties and covenants contained in this Section 2.05.an affiliate thereof;
Appears in 1 contract
Representations, Warranties and Covenants of the Master Servicer. (a) The Master Servicer hereby represents, warrants and covenants to the Trust Administrator and the Trustee, for the benefit of each of the TrusteeTrustee and the Certificateholders, the Trust Administrator, the Certificateholders and to the Depositor Depositor, that as of the Closing Date or as of such date specifically provided herein:
(i) The Master Servicer is a corporation duly organized, validly existing and in good standing under the laws of the State state of New York and its incorporation, is duly authorized and qualified to transact any and all business contemplated by this Agreement and has all licenses necessary to be carry on its business as now being conducted and is licensed, qualified and in good standing in the states where the Mortgaged Properties are located if the laws of such state require licensing or qualification in order to conduct business of the type conducted by the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification ensure the enforceability or validity of each Mortgage Loan and, in any event, is in compliance with the doing business laws of any such State, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to service the Mortgage Loans in accordance with the terms of this Agreement;
(ii) The Master Servicer has the full corporate power and authority to service each Mortgage Loan, and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary corporate action on the part of the Master Servicer the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties heretoDepositor and the Trustee, constitutes a legal, valid and binding obligation of the Master Servicer, enforceable against the Master Servicer in accordance with its terms, except to the extent that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ rights generally and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought;.
(iii) The execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunder, the consummation by the Master Servicer of any other of the transactions herein contemplated, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Master Servicer and will not (A) result in a breach of any term or provision of the charter or by-laws by‑laws of the Master Servicer or (B) conflict with, result in a breach, violation or acceleration of, or result in a default under, the terms of any other material agreement or instrument to which the Master Servicer is a party or by which it may be bound, or any statute, order or regulation applicable to the Master Servicer of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Master Servicer; and the Master Servicer 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 body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects or, to the Master Servicer’s knowledge, would in the future materially and adversely affect, (x) the ability of the Master Servicer to perform its obligations under this Agreement or (y) the business, operations, financial condition, properties or assets of the Master Servicer taken as a whole;
(iv) The Master Servicer is an approved seller/servicer for Fxxxxx Mxx Xxxxxx Xxx or Fxxxxxx Freddie Mac in good standing and is a HUD approved mortgagee pursuant to Section 203 and Section 211 of the National Housing Act;
(v) No litigation is pending against the Master Servicer that would materially and adversely affect the execution, delivery or enforceability of this Agreement or the ability of the Master Servicer to service the Mortgage Loans or to perform any of its other obligations hereunder in accordance with the terms hereof;
(vi) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the consummation by the Master Servicer of the transactions contemplated by this Agreement, except for such consents, approvals, authorizations or orders, if any, that have been obtained prior to the Closing Date;
(vii) The information set forth in the Prepayment Charge Schedule is complete, true and correct in all material respects at the date or dates respecting which such information is furnished and each Prepayment Charge is permissible and enforceable in accordance with its terms under applicable law upon the Mortgagor’s voluntary principal prepayment (except to the extent that: (1) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ rights generally; or (2) the collectability thereof may be limited due to acceleration in connection with a foreclosure or other involuntary prepayment); provided that the representation, warranty and covenant contained in this clause (vii) is made by the Master Servicer covenants that only in its computer capacity as Seller;
(viii) The Master Servicer will not waive any Prepayment Charge or part of a Prepayment Charge unless such waiver is related to a default or a reasonably foreseeable default and other systems used would maximize recovery of total proceeds taking into account the value of such Prepayment Charge and related Mortgage Loan and doing so is standard and customary in servicing mortgage loans similar to the Mortgage Loans operate (including any waiver of a Prepayment Charge in connection with a manner such refinancing of a Mortgage Loan that is related to a default or a reasonably foreseeable default). Notwithstanding the foregoing, the Master Servicer can service may waive any Prepayment Charge or part of a Prepayment Charge in any instance when the mortgage debt is accelerated as a result of the Mortgagor’s default in making the Mortgage Loans Loan payments and the Master Servicer may waive any prepayment charges or premiums due in accordance connection with a partial prepayment;
(ix) With respect to each Mortgage Loan, the Master Servicer will furnish, or cause to be furnished, information regarding the borrower credit file related to such Mortgage Loan to credit reporting agencies in compliance with the terms provisions of this Agreementthe Fair Credit Reporting Act and the applicable implementing regulations. The Master Servicer will transmit full-file credit reporting data for each Mortgage Loan pursuant to Xxxxxx Xxx Guide Announcement 95-19 and that for each Mortgage Loan, the Master Servicer agrees it shall report one of the following statuses each month as follows: new origination, current, delinquent (30-, 60-, 90-days, etc.), foreclosed, or charged-off; and
(viiix) The Master Servicer (or a Sub-Servicer servicing the Mortgage Loans on its behalf) is a member of MERS in good standing, and will comply in all material respects with the rules and procedures of MERS in connection with the servicing of the Mortgage Loans that are registered with MERS. .
(b) It is understood and agreed that the representations, warranties and covenants set forth in this Section 2.05 2.04 shall survive delivery of the Mortgage Files to the Trustee or to a Custodian on its behalf Custodian, as the case may be, and shall inure to the benefit of the Trustee, the Trust Administrator, the Depositor and the Certificateholders. Upon discovery by any of the Depositor, the Master Servicer, the Trust Administrator Servicer or the Trustee of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any Mortgage Loan Loan, Prepayment Charge or the interests therein of the Certificateholders, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the Trusteeother of such parties. Subject to Section 7.01, the The obligation of the Master Servicer set forth in Section 2.03(c) to cure breaches (or, in the case of (a)(vii) or (a)(viii) above, to pay a Master Servicer Prepayment Charge Payment Amount) shall constitute the sole remedies remedy against the Master Servicer available to the Certificateholders, the Depositor, the Trust Administrator Depositor or the Trustee on behalf of the Certificateholders respecting a breach of the representations, warranties and covenants contained in this Section 2.052.04. The preceding sentence shall not, however, limit any remedies available to the Certificateholders, the Depositor or the Trustee on behalf of the Certificateholders, (i) pursuant to the Mortgage Loan Purchase Agreement signed by the Master Servicer in its capacity as Seller, respecting a breach of the representations, warranties and covenants of the Master Servicer in its capacity as Seller contained in the Mortgage Loan Purchase Agreement or (ii) pursuant to Section 7.01 hereof.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Long Beach Mortgage Loan Trust 2006-A)
Representations, Warranties and Covenants of the Master Servicer. The Master Servicer hereby represents, warrants and covenants to the Trust Administrator and the Trustee, for the benefit of each of the Trustee, the Trust Administrator, Trustee and the Certificateholders and to the Depositor that as of the Closing Date or as of such date specifically provided herein:
(i) The Master Servicer is a corporation [corporation] duly organized, validly existing and in good standing under the laws of the State of New York [Delaware] and is duly authorized and qualified to transact any and all business contemplated by this Agreement to be conducted by the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to service the Mortgage Loans in accordance with the terms of this Agreement;
(ii) The Master Servicer has the full corporate power and authority to service each Mortgage Loan, and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary corporate action on the part of the Master Servicer the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties heretoDepositor and the Trustee, constitutes a legal, valid and binding obligation of the Master Servicer, enforceable against the Master Servicer in accordance with its terms, except to the extent that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ ' rights generally and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought;
(iii) The execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunder, the consummation of any other of the transactions herein contemplated, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Master Servicer and will not (A) result in a breach of any term or provision of the charter or by-laws organizational documents of the Master Servicer or (B) conflict with, result in a breach, violation or acceleration of, or result in a default under, the terms of any other material agreement or instrument to which the Master Servicer is a party or by which it may be bound, or any statute, order or regulation applicable to the Master Servicer of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Master Servicer; and the Master Servicer 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 body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects or, to the Master Servicer’s 's knowledge, would in the future materially and adversely affect, (x) the ability of the Master Servicer to perform its obligations under this Agreement or (y) the business, operations, financial condition, properties or assets of the Master Servicer taken as a whole;
(iv) The Master Servicer is an approved seller/servicer for Fxxxxx Mxx Fannie Mae or Fxxxxxx Freddie Mac in good standing and is a HUD approved mortgagee pursuant xxrxxxgee xxxxxxxt to Section 203 and Section 211 of the National Housing Act;
(v) No litigation is pending against the Master Servicer that would materially and adversely affect the execution, delivery or enforceability of this Agreement or the ability of the Master Servicer to service the Mortgage Loans or to perform any of its other obligations hereunder in accordance with the terms hereof;
(vi) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the consummation of the transactions contemplated by this Agreement, except for such consents, approvals, authorizations or orders, if any, that have been obtained prior to the Closing Date;
(vii) The Master Servicer covenants that its computer shall not waive any Prepayment Charge or part of a Prepayment Charge unless, (i) the enforceability thereof shall have been limited by bankruptcy, insolvency, moratorium, receivership and other systems used similar laws relating to creditors' rights generally or (ii) the collectability thereof shall have been limited due to acceleration in connection with a foreclosure or other involuntary payment or (iii) in the Master Servicer's reasonable judgment as described in Section 3.01 hereof, (x) such waiver relates to a default or a reasonably foreseeable default, (y) such waiver would maximize recovery of total proceeds taking into account the value of such Prepayment Charge and related Mortgage Loan and (z) doing so is standard and customary in servicing the similar Mortgage Loans operate (including any waiver of a Prepayment Charge in connection with a manner such refinancing of a Mortgage Loan that is related to a default or a reasonably foreseeable default). In no event shall the Master Servicer can service the waive a Prepayment Charge in connection with a refinancing of a Mortgage Loans in accordance with the terms of this Agreement; andLoan that is not related to a default or a reasonably foreseeable default;
(viii) The Master Servicer (or a Sub-Servicer servicing the Mortgage Loans on its behalf) is a member of MERS in good standing, and will comply in all material respects with the rules and procedures of MERS in connection with the servicing of the Mortgage Loans that are registered with MERS. It is understood and agreed that the representations, warranties and covenants information set forth in this Section 2.05 shall survive delivery of the Mortgage Files "monthly tape" provided to the Trustee or to a Custodian on its behalf and shall inure to the benefit of the Trustee, the Trust Administrator, the Depositor and the Certificateholders. Upon discovery by any of the Depositor, the Master Servicer, the Trust Administrator or the Trustee of a breach of any of the foregoing representations, warranties its affiliates is true and covenants which materially and adversely affects the value of any Mortgage Loan or the interests therein of the Certificateholders, the party discovering such breach shall give prompt written notice (but correct in no event later than two Business Days following such discovery) to the Trustee. Subject to Section 7.01, the obligation of the Master Servicer set forth in Section 2.03(c) to cure breaches shall constitute the sole remedies against the Master Servicer available to the Certificateholders, the Depositor, the Trust Administrator or the Trustee on behalf of the Certificateholders respecting a breach of the representations, warranties and covenants contained in this Section 2.05.all material respects;
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Park Place Securities, Inc.)
Representations, Warranties and Covenants of the Master Servicer. The Master Servicer hereby represents, warrants and covenants to the Trust Administrator and the Trustee, for the benefit of each of the Trustee, the Trust Administrator, the Certificateholders and to the Depositor that as of the Closing Date or as of such date specifically provided herein:
(i) The Master Servicer is a corporation duly organized, validly existing and in good standing under the laws of the State of New York Delaware and is duly authorized and qualified to transact any and all business contemplated by this Agreement to be conducted by the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to service the Mortgage Loans in accordance with the terms of this Agreement;
(ii) The Master Servicer has the full corporate power and authority to service each Mortgage Loan, and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary corporate action on the part of the Master Servicer the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties heretoDepositor and the Trustee, constitutes a legal, valid and binding obligation of the Master Servicer, enforceable against the Master Servicer in accordance with its terms, except to the extent that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ ' rights generally and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought;
(iii) The execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunder, the consummation of any other of the transactions herein contemplated, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Master Servicer and will not (A) result in a breach of any term or provision of the charter or by-laws of the Master Servicer or (B) conflict with, result in a breach, violation or acceleration of, or result in a default under, the terms of any other material agreement or instrument to which the Master Servicer is a party or by which it may be bound, or any statute, order or regulation applicable to the Master Servicer of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Master Servicer; and the Master Servicer 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 body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects or, to the Master Servicer’s 's knowledge, would in the future materially and adversely affect, (x) the ability of the Master Servicer to perform its obligations under this Agreement or (y) the business, operations, financial condition, properties or assets of the Master Servicer taken as a whole;
(iv) The Master Servicer is an approved seller/servicer for Fxxxxx Fannie Mae or Freddie Mxx or Fxxxxxx Mac in good standing and xx gxxx staxxxxx xnd is a HUD approved mortgagee pursuant to Section 203 and Section 211 of the National Housing Act;
(v) No Except as disclosed in the Prospectus Supplement, no litigation is pending against the Master Servicer that would materially and adversely affect the execution, delivery or enforceability of this Agreement or the ability of the Master Servicer to service the Mortgage Loans or to perform any of its other obligations hereunder in accordance with the terms hereof;
(vi) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the consummation of the transactions contemplated by this Agreement, except for such consents, approvals, authorizations or orders, if any, that have been obtained prior to the Closing Date;
(vii) The Master Servicer covenants that its computer information set forth in the Prepayment Charge Schedule attached hereto as Schedule 2 (including the prepayment charge summary attached thereto) is complete, true and other systems used correct in servicing all material respects at the Mortgage Loans operate in a manner date or dates respecting which such that the Master Servicer can service the Mortgage Loans information is furnished and each Prepayment Charge is permissible and enforceable in accordance with its terms (except to the terms of this Agreement; andextent that (i) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally and (ii) the collectability thereof may be limited due to acceleration in connection with a foreclosure or other involuntary payment;
(viii) The Master Servicer will not waive any Prepayment Charge or part of a Prepayment Charge unless, in the Master Servicer's reasonable judgment as described in Section 3.01 hereof, (x) such waiver relates to a default or a Sub-Servicer reasonably foreseeable default, (y) such waiver would maximize recovery of total proceeds taking into account the value of such Prepayment Charge and related Mortgage Loan and (z) doing so is standard and customary in servicing the similar Mortgage Loans on (including any waiver of a Prepayment Charge in connection with a refinancing of a Mortgage Loan that is related to a default or a reasonably foreseeable default) and in no event will it waive a Prepayment Charge in connection with a refinancing of a Mortgage Loan that is not related to a default or a reasonably foreseeable default;
(ix) The information set forth in the "monthly tape" provided to the Trustee or any of its behalf) affiliates is a member of MERS in good standing, true and will comply correct in all material respects with respects; and
(x) With respect to each Mortgage Loan, the rules and procedures of MERS Assignment is in connection with recordable form; (except that the servicing name of the assignee and the recording information with respect to such Mortgage Loans that are registered with MERSLoan is blank) and each Mortgage Loan was originated in the name of the Master Servicer or an affiliate thereof. It is understood and agreed that the representations, warranties and covenants set forth in this Section 2.05 shall survive delivery of the Mortgage Files to the Trustee or to a Custodian on its behalf Custodian, as the case may be, and shall inure to the benefit of the Trustee, the Trust Administrator, the Depositor and the Certificateholders. Upon discovery by any of the Depositor, the Master ServicerNIMs Insurer, the Trust Administrator Master Servicer or the Trustee of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any Mortgage Loan Loan, Prepayment Charge or the interests therein of the Certificateholders, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the NIMs Insurer and the Trustee. Subject to Section 7.01, the obligation of the Master Servicer set forth in Section 2.03(c2.03(b) to cure breaches (or in the case of the representations, warranties and covenants set forth in Section 2.05(vii) and Section 2.05(viii) above, to otherwise remedy such breaches pursuant to Section 2.03(b)) shall constitute the sole remedies against the Master Servicer available to the Certificateholders, the Depositor, the Trust Administrator Depositor or the Trustee on behalf of the Certificateholders respecting a breach of the representations, warranties and covenants contained in this Section 2.05. The preceding sentence shall not, however, limit any remedies available to the Certificateholders, the Depositor or the Trustee on behalf of the Certificateholders (other than in the case of the representations, warranties and covenants set forth in Section 2.05(vii) and Section 2.05(viii) above) pursuant to the Mortgage Loan Purchase Agreement signed by the Master Servicer in its capacity as Originator, respecting a breach of the representations, warranties and covenants of the Master Servicer in its capacity as Originator contained in such Mortgage Loan Purchase Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Ameriquest Mort Sec Inc Flo Rate Mort Pas THR Cert Ser 01 3)
Representations, Warranties and Covenants of the Master Servicer. The Master Servicer hereby represents, warrants and covenants to the Trust Administrator and the Trustee, for the benefit of each of the Trustee, the Trust Administrator, the Certificateholders and to the Depositor that as of the Closing Date or as of such date specifically provided herein:
(i) The Master Servicer is a corporation duly organized, validly existing and in good standing under the laws of the State of New York ______________ and is duly authorized and qualified to transact any and all business contemplated by this Agreement to be conducted by the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to service the Mortgage Loans in accordance with the terms of this Agreement;
(ii) The Master Servicer has the full corporate power and authority to service each Mortgage Loan, conduct its business as presently conducted by it and to execute, deliver and perform, and to enter into and consummate the consummate, all transactions contemplated by this Agreement and Agreement. The Master Servicer has duly authorized by all necessary corporate action on the part of the Master Servicer the execution, delivery and performance of this Agreement; , has duly executed and delivered this Agreement, and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties heretoDepositor and the Trustee, constitutes a legal, valid and binding obligation of the Master Servicer, enforceable against the Master Servicer it in accordance with its terms, terms except to the extent that (a) as the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other reorganization or similar laws relating to affecting the enforcement of creditors’ ' rights generally and (b) the remedy by general principles of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be broughtequity;
(iii) The execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunder, the consummation by the Master Servicer of any other of the transactions herein contemplated, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Master Servicer and will not (A) result in a breach of any term or provision of the charter or by-laws of the Master Servicer or (B) conflict with, result in a breach, violation or acceleration of, or result in a default under, the terms of any other material agreement or instrument to which the Master Servicer is a party or by which it may be bound, or any statute, order or regulation applicable to the Master Servicer of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Master Servicer; and the Master Servicer 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 body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects or, to the Master Servicer’s 's knowledge, would in the future materially and adversely affect, (x) the ability of the Master Servicer to perform its obligations under this Agreement or (y) the business, operations, financial condition, properties or assets of the Master Servicer taken as a whole;
(iv) The Master Servicer is an approved seller/servicer for Fxxxxx Mxx or Fxxxxxx Mac in good standing and is a HUD approved mortgagee pursuant to Section 203 of the National Housing Act. No event has occurred, including but not limited to a change in insurance coverage, that would make the Master Servicer unable to comply with HUD eligibility requirements or that would require notification to HUD;
(v) The Master Servicer does not believe, nor does it have any reason or cause to believe, that it cannot perform each and every covenant made by it and contained in this Agreement;
(vi) With respect to each Mortgage Loan, the Master Servicer, or Sub- Servicer if any, is in possession of a complete Mortgage File, except for such documents as have been delivered to the Trustee;
(vii) No litigation is pending against the Master Servicer that would materially and adversely affect the execution, delivery deliver or enforceability of this Agreement or the ability of the Master Servicer to service the Mortgage Loans or to perform any of its other obligations hereunder in accordance with the terms hereof;
(viviii) There are no actions or proceedings against, or investigations known to it of, the Master Servicer before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by the Master Servicer of its obligations under, or validity or enforceability of, this Agreement;
(ix) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the consummation by it of the transactions contemplated by this Agreement, except for such consents, approvals, authorizations or orders, if any, that have been obtained prior to the Closing Date;
(viix) The information set forth in the Prepayment Charge Schedule (including the prepayment charge summary attached thereto) is complete, true and correct in all material respects on the date or dates when such information is furnished and each Prepayment Charge is permissible and enforceable in accordance with its terms (except to the extent that the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally or the collectability thereof may be limited due to acceleration in connection with a foreclosure) under applicable state law; and
(xi) The Master Servicer covenants that its computer and other systems used in servicing the Mortgage Loans operate in a manner such that the Master Servicer can service the Mortgage Loans will not waive any Prepayment Charge unless it is waived in accordance with the terms of this Agreement; and
(viii) The Master Servicer (or a Sub-Servicer servicing the Mortgage Loans on its behalf) is a member of MERS standard set forth in good standing, and will comply in all material respects with the rules and procedures of MERS in connection with the servicing of the Mortgage Loans that are registered with MERSSection 3.01. It is understood and agreed that the representations, warranties and covenants set forth in this Section 2.05 shall survive delivery of the Mortgage Files to the Trustee or to a Custodian on its behalf and shall inure to the benefit of the Trustee, the Trust Administrator, the Depositor and the Certificateholders. Upon discovery by any of the Depositor, the Master Servicer, the Trust Administrator Servicer or the Trustee of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any Mortgage Loan Loan, Prepayment Charge or the interests therein of the Certificateholders, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the Trustee. Subject to Section 7.01, unless such breach shall not be susceptible of cure within 90 days, the obligation of the Master Servicer set forth in Section 2.03(c) to cure breaches shall constitute the sole remedies remedy against the Master Servicer available to the Certificateholders, the Depositor, the Trust Administrator Depositor or the Trustee on behalf of the Certificateholders respecting a breach of the representations, warranties and covenants contained in this Section 2.05. Notwithstanding the foregoing, within 90 days of the earlier of discovery by the Master Servicer or receipt of notice by the Master Servicer of the breach of the representation or covenant of the Master Servicer set forth in Sections 2.05(x) or 2.05(xi) above which materially and adversely affects the interests of the Holders of the Class P Certificates in any Prepayment Charge, the Master Servicer shall remedy such breach as follows: (a) if the representation made by the Master Servicer in Section 2.05(x) above is breached and a Principal Prepayment has occurred in the applicable Prepayment Period, the Master Servicer must pay the amount of the scheduled Prepayment Charge, for the benefit of the holder of the Class P Certificate, by depositing such amount into the Collection Account, net of any amount previously collected by the Master Servicer or paid by the Master Servicer, for the benefit of the Holders of the Class P Certificates, in respect of such Prepayment Charge; and (b) if any of the covenants made by the Master Servicer in Section 2.05(xi) above is breached, the Master Servicer must pay the amount of such waived Prepayment Charge, for the benefit of the holders of the Class P Certificates, by depositing such amount into the Collection Account. The foregoing shall not, however, limit any remedies available to the Certificateholders, the Depositor or the Trustee on behalf of the Certificateholders, pursuant to the Mortgage Loan Purchase Agreement signed by the Master Servicer in its capacity as Seller, respecting a breach of the representations, warranties and covenants of the Master Servicer in its capacity as Seller contained in the Mortgage Loan Purchase Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (New Century Mortgage Securities Inc)
Representations, Warranties and Covenants of the Master Servicer. (a) The Master Servicer hereby represents, warrants and covenants to the Trust Administrator and the Trustee, for the benefit of each of the TrusteeTrustee and the Certificateholders, the Trust Administrator, the Certificateholders and to the Depositor Depositor, that as of the Closing Date or as of such date specifically provided herein:
(i) The Master Servicer is a corporation duly organized, validly existing and in good standing under the laws of the State state of New York and its incorporation, is duly authorized and qualified to transact any and all business contemplated by this Agreement and has all licenses necessary to be carry on its business as now being conducted and is licensed, qualified and in good standing in the states where the Mortgaged Properties are located if the laws of such state require licensing or qualification in order to conduct business of the type conducted by the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification ensure the enforceability or validity of each Mortgage Loan and, in any event, is in compliance with the doing business laws of any such State, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to service the Mortgage Loans in accordance with the terms of this Agreement;
(ii) The Master Servicer has the full corporate power and authority to service each Mortgage Loan, and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary corporate action on the part of the Master Servicer the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties heretoDepositor and the Trustee, constitutes a legal, valid and binding obligation of the Master Servicer, enforceable against the Master Servicer in accordance with its terms, except to the extent that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ rights generally and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought;.
(iii) The execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunder, the consummation by the Master Servicer of any other of the transactions herein contemplated, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Master Servicer and will not (A) result in a breach of any term or provision of the charter or by-laws of the Master Servicer or (B) conflict with, result in a breach, violation or acceleration of, or result in a default under, the terms of any other material agreement or instrument to which the Master Servicer is a party or by which it may be bound, or any statute, order or regulation applicable to the Master Servicer of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Master Servicer; and the Master Servicer 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 body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects or, to the Master Servicer’s knowledge, would in the future materially and adversely affect, (x) the ability of the Master Servicer to perform its obligations under this Agreement or (y) the business, operations, financial condition, properties or assets of the Master Servicer taken as a whole;
(iv) The Master Servicer is an approved seller/servicer for Fxxxxx Mxx or Fxxxxxx Mac in good standing and is a HUD approved mortgagee pursuant to Section 203 and Section 211 of the National Housing Act;
(v) No litigation is pending against the Master Servicer that would materially and adversely affect the execution, delivery or enforceability of this Agreement or the ability of the Master Servicer to service the Mortgage Loans or to perform any of its other obligations hereunder in accordance with the terms hereof;
(vi) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the consummation by the Master Servicer of the transactions contemplated by this Agreement, except for such consents, approvals, authorizations or orders, if any, that have been obtained prior to the Closing Date;
(vii) The Master Servicer covenants that information set forth in the Prepayment Charge Schedule is complete, true and correct in all material respects at the date or dates respecting which such information is furnished and each Prepayment Charge is permissible and enforceable in accordance with its computer terms under applicable law upon the Mortgagor’s voluntary principal prepayment (except to the extent that: (1) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other systems used similar laws relating to creditors’ rights generally; or (2) the collectability thereof may be limited due to acceleration in servicing connection with a foreclosure or other involuntary prepayment); provided that the Mortgage Loans operate representation, warranty and covenant contained in a manner such that this clause (vii) is made by the Master Servicer can service the Mortgage Loans only in accordance with the terms of this Agreementits capacity as Seller; and
(viii) The Master Servicer (will not waive any Prepayment Charge or part of a Prepayment Charge unless such waiver is related to a default or a Sub-Servicer reasonably foreseeable default and would maximize recovery of total proceeds taking into account the value of such Prepayment Charge and related Mortgage Loan and doing so is standard and customary in servicing mortgage loans similar to the Mortgage Loans on its behalf) is (including any waiver of a member of MERS in good standing, and will comply in all material respects with the rules and procedures of MERS Prepayment Charge in connection with a refinancing of a Mortgage Loan that is related to a default or a reasonably foreseeable default).
(ix) With respect to each Mortgage Loan, the servicing Master Servicer will furnish, or cause to be furnished, information regarding the borrower credit file related to such Mortgage Loan to credit reporting agencies in compliance with the provisions of the Fair Credit Reporting Act and the applicable implementing regulations. The Master Servicer will transmit full-file credit reporting data for each Mortgage Loans Loan pursuant to Fxxxxx Mae Guide Announcement 95-19 and that are registered with MERS. for each Mortgage Loan, the Master Servicer agrees it shall report one of the following statuses each month as follows: new origination, current, delinquent (30-, 60-, 90-days, etc.), foreclosed, or charged-off.
(b) It is understood and agreed that the representations, warranties and covenants set forth in this Section 2.05 2.04 shall survive delivery of the Mortgage Files to the Trustee or to a Custodian on its behalf Custodian, as the case may be, and shall inure to the benefit of the Trustee, the Trust Administrator, the Depositor and the Certificateholders. Upon discovery by any of the Depositor, the Master Servicer, the Trust Administrator Servicer or the Trustee of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any Mortgage Loan Loan, Prepayment Charge or the interests therein of the Certificateholders, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the Trusteeother of such parties. Subject to Section 7.01, the The obligation of the Master Servicer set forth in Section 2.03(c) to cure breaches (or, in the case of (a)(vii) or (a)(viii) above, to pay a Master Servicer Prepayment Charge Payment Amount) shall constitute the sole remedies remedy against the Master Servicer available to the Certificateholders, the Depositor, the Trust Administrator NIMS Insurer or the Trustee on behalf of the Certificateholders respecting a breach of the representations, warranties and covenants contained in this Section 2.052.04. The preceding sentence shall not, however, limit any remedies available to the Certificateholders, the Depositor, the NIMS Insurer or the Trustee on behalf of the Certificateholders, (i) pursuant to the Mortgage Loan Purchase Agreement signed by the Master Servicer in its capacity as Seller, respecting a breach of the representations, warranties and covenants of the Master Servicer in its capacity as Seller contained in the Mortgage Loan Purchase Agreement or (ii) pursuant to Section 7.01 hereof.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Long Beach Mortgage Loan Trust 2006-1)
Representations, Warranties and Covenants of the Master Servicer. The Master Servicer hereby represents, warrants and covenants to the Trust Administrator and the Trustee, for the benefit of each of the Trustee, the Trust Administrator, the Certificateholders and to the Depositor that as of the Closing Date or as of such date specifically provided herein:
(i) The Master Servicer is a corporation duly organized, validly existing and in good standing under the laws of the State of New York Delaware and is duly authorized and qualified to transact any and all business contemplated by this Agreement to be conducted by the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to service the Mortgage Loans in accordance with the terms of this Agreement;
(ii) The Master Servicer has the full corporate power and authority to service each Mortgage Loan, and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary corporate action on the part of the Master Servicer the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties heretoDepositor and the Trustee, constitutes a legal, valid and binding obligation of the Master Servicer, enforceable against the Master Servicer in accordance with its terms, except to the extent that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ ' rights generally and (b) the remedy of specific performance and injunctive and other forms 57 of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought;
(iii) The execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunder, the consummation of any other of the transactions herein contemplated, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Master Servicer and will shall not (A) result in a breach of any term or provision of the charter or by-laws of the Master Servicer or (B) conflict with, result in a breach, violation or acceleration of, or result in a default under, the terms of any other material agreement or instrument to which the Master Servicer is a party or by which it may be bound, or any statute, order or regulation applicable to the Master Servicer of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Master Servicer; and the Master Servicer 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 body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects or, to the Master Servicer’s 's knowledge, would in the future materially and adversely affect, (x) the ability of the Master Servicer to perform its obligations under this Agreement or (y) the business, operations, financial condition, properties or assets of the Master Servicer taken as a whole;
(iv) The Master Servicer is an approved seller/servicer for Fxxxxx Mxx Fannie Mae or Fxxxxxx Freddie Mac in good standing and is a gxxx xxaxxxng axx xx x HUD approved mortgagee pursuant to Section 203 and Section 211 of the National Housing Act;
(v) No Except as disclosed in the Prospectus Supplement, no litigation is pending against the Master Servicer that would materially and adversely affect the execution, delivery or enforceability of this Agreement or the ability of the Master Servicer to service the Mortgage Loans or to perform any of its other obligations hereunder in accordance with the terms hereof;
(vi) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the consummation of the transactions contemplated by this Agreement, except for such consents, approvals, authorizations or orders, if any, that have been obtained prior to the Closing Date;
(vii) The Master Servicer covenants that its computer and other systems used in servicing the Mortgage Loans operate in a manner such that the Master Servicer can service the Mortgage Loans in accordance with the terms of this Agreement; and[Reserved];
(viii) The Master Servicer shall not waive any Prepayment Charge or part of a Prepayment Charge unless, (i) the enforceability thereof shall have been limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally or a Sub-Servicer servicing (ii) the Mortgage Loans on its behalf) is a member of MERS in good standing, and will comply in all material respects with the rules and procedures of MERS collectability thereof shall have been limited due to acceleration in connection with a foreclosure or other involuntary payment or (iii) in the Master Servicer's reasonable judgment as described in Section 3.01 hereof, (x) such waiver relates to a default or a reasonably foreseeable default, (y) such waiver would maximize recovery of total proceeds taking into account the value of such Prepayment Charge and related Mortgage Loan and (z) doing so is standard and customary in servicing of the similar Mortgage Loans (including any waiver of a Prepayment Charge in connection with a refinancing of a Mortgage Loan that are registered is related to a default or a reasonably foreseeable default). In no event shall the Master Servicer waive a Prepayment Charge in connection with MERS. It a refinancing of a Mortgage Loan that is understood and agreed that the representations, warranties and covenants not related to a default or a reasonably foreseeable default;
(ix) The information set forth in this Section 2.05 shall survive delivery of the Mortgage Files "monthly tape" provided to the Trustee or any of its affiliates is true and correct in all material respects;
(x) With respect to a Custodian on its behalf and shall inure to each Mortgage Loan, the benefit Assignment is in recordable form; (except that the name of the Trustee, the Trust Administrator, the Depositor assignee and the Certificateholders. Upon discovery by any of the Depositor, the Master Servicer, the Trust Administrator or the Trustee of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any recording information with respect to such Mortgage Loan or the interests therein of the Certificateholders, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the Trustee. Subject to Section 7.01, the obligation of the Master Servicer set forth in Section 2.03(c) to cure breaches shall constitute the sole remedies against the Master Servicer available to the Certificateholders, the Depositor, the Trust Administrator or the Trustee on behalf of the Certificateholders respecting a breach of the representations, warranties and covenants contained in this Section 2.05.is blank);
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Argent Securities Asset Bcked Pass Through Certs Ser 2004-W4)
Representations, Warranties and Covenants of the Master Servicer. The Master Servicer hereby represents, warrants and covenants to the Trust Administrator and the Trustee, for the benefit of each of the Trustee, the Trust Administrator, the Certificateholders and to the Depositor that as of the Closing Date or as of such date specifically provided herein:
(i) The Master Servicer is a corporation duly organized, validly existing and in good standing under the laws of the State of New York Delaware and is duly authorized and qualified to transact any and all business contemplated by this Agreement to be conducted by the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to service the Mortgage Loans in accordance with the terms of this Agreement;
(ii) The Master Servicer has the full corporate power and authority to service each Mortgage Loan, and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary corporate action on the part of the Master Servicer the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties heretoDepositor and the Trustee, constitutes a legal, valid and binding obligation of the Master Servicer, enforceable against the Master Servicer in accordance with its terms, except to the extent that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ ' rights generally and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought;
(iii) The execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunder, the consummation of any other of the transactions herein contemplated, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Master Servicer and will shall not (A) result in a breach of any term or provision of the charter or by-laws of the Master Servicer or (B) conflict with, result in a breach, violation or acceleration of, or result in a default under, the terms of any other material agreement or instrument to which the Master Servicer is a party or by which it may be bound, or any statute, order or regulation applicable to the Master Servicer of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Master Servicer; and the Master Servicer 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 body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects or, to the Master Servicer’s 's knowledge, would in the future materially and adversely affect, (x) the ability of the Master Servicer to perform its obligations under this Agreement or (y) the business, operations, financial condition, properties or assets of the Master Servicer taken as a whole;
(iv) The Master Servicer is an approved seller/servicer for Fxxxxx Mxx Fannie Mae or Fxxxxxx Freddie Mac in good standing and stxxxxxx xxx is a HUD approved x XXX xpproved mortgagee pursuant to Section 203 and Section 211 of the National Housing Act;
(v) No Except as disclosed in the Prospectus Supplement, no litigation is pending against the Master Servicer that would materially and adversely affect the execution, delivery or enforceability of this Agreement or the ability of the Master Servicer to service the Mortgage Loans or to perform any of its other obligations hereunder in accordance with the terms hereof;
(vi) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the consummation of the transactions contemplated by this Agreement, except for such consents, approvals, authorizations or orders, if any, that have been obtained prior to the Closing Date;
(vii) The Master Servicer covenants that its computer and other systems used in servicing the Mortgage Loans operate in a manner such that the Master Servicer can service the Mortgage Loans in accordance with the terms of this Agreement; and[Reserved];
(viii) The Master Servicer shall not waive any Prepayment Charge or part of a Prepayment Charge unless, (i) the enforceability thereof shall have been limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally or a Sub-Servicer servicing (ii) the Mortgage Loans on its behalf) is a member of MERS in good standing, and will comply in all material respects with the rules and procedures of MERS collectability thereof shall have been limited due to acceleration in connection with a foreclosure or other involuntary payment or (iii) in the Master Servicer's reasonable judgment as described in Section 3.01 hereof, (x) such waiver relates to a default or a reasonably foreseeable default, (y) such waiver would maximize recovery of total proceeds taking into account the value of such Prepayment Charge and related Mortgage Loan and (z) doing so is standard and customary in servicing of the similar Mortgage Loans (including any waiver of a Prepayment Charge in connection with a refinancing of a Mortgage Loan that are registered is related to a default or a reasonably foreseeable default). In no event shall the Master Servicer waive a Prepayment Charge in connection with MERS. It a refinancing of a Mortgage Loan that is understood and agreed that the representations, warranties and covenants not related to a default or a reasonably foreseeable default;
(ix) The information set forth in this Section 2.05 shall survive delivery of the Mortgage Files "monthly tape" provided to the Trustee or any of its affiliates is true and correct in all material respects;
(x) With respect to a Custodian on its behalf and shall inure to each Mortgage Loan, the benefit Assignment is in recordable form (except that the name of the Trustee, the Trust Administrator, the Depositor assignee and the Certificateholders. Upon discovery by any of the Depositor, the Master Servicer, the Trust Administrator or the Trustee of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any recording information with respect to such Mortgage Loan or the interests therein of the Certificateholders, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the Trustee. Subject to Section 7.01, the obligation of the Master Servicer set forth in Section 2.03(c) to cure breaches shall constitute the sole remedies against the Master Servicer available to the Certificateholders, the Depositor, the Trust Administrator or the Trustee on behalf of the Certificateholders respecting a breach of the representations, warranties and covenants contained in this Section 2.05.is blank);
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Argent Securities Inc Asset Back Pass THR Certs Ser 2004 W2)
Representations, Warranties and Covenants of the Master Servicer. The Master Servicer hereby represents, warrants and covenants to the Trust Administrator and the Trustee, for the benefit of each of the Trustee, the Trust AdministratorCertificateholders, the Certificateholders Certificate Insurer and to the Depositor that as of the Closing Date or as of such date specifically provided herein:
(i) The Master Servicer is a corporation duly organized, validly existing and in good standing under the laws of the State of New York Delaware and is duly authorized and qualified to transact any and all business contemplated by this Agreement to be conducted by the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to service the Mortgage Loans in accordance with the terms of this Agreement;
(ii) The Master Servicer has the full corporate power and authority to service each Mortgage Loan, and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary corporate action on the part of the Master Servicer the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties heretoDepositor and the Trustee, constitutes a legal, valid and binding obligation of the Master Servicer, enforceable against the Master Servicer in accordance with its terms, except to the extent that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ ' rights generally and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought;
(iii) The execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunder, the consummation of any other of the transactions herein contemplated, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Master Servicer and will shall not (A) result in a breach of any term or provision of the charter or by-laws of the Master Servicer or (B) conflict with, result in a breach, violation or acceleration of, or result in a default under, the terms of any other material agreement or instrument to which the Master Servicer is a party or by which it may be bound, or any statute, order or regulation applicable to the Master Servicer of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Master Servicer; and the Master Servicer 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 body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects or, to the Master Servicer’s 's knowledge, would in the future materially and adversely affect, (x) the ability of the Master Servicer to perform its obligations under this Agreement or (y) the business, operations, financial condition, properties or assets of the Master Servicer taken as a whole;
(iv) The Master Servicer is an approved seller/servicer for Fxxxxx Mxx Fannie Mae or Fxxxxxx Freddie Mac in good standing and is a gxxx xxaxxxng axx xx x HUD approved mortgagee pursuant to Section 203 and Section 211 of the National Housing Act;
(v) No Except as disclosed in the Prospectus Supplement, no litigation is pending against the Master Servicer that would materially and adversely affect the execution, delivery or enforceability of this Agreement or the ability of the Master Servicer to service the Mortgage Loans or to perform any of its other obligations hereunder in accordance with the terms hereof;
(vi) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the consummation of the transactions contemplated by this Agreement, except for such consents, approvals, authorizations or orders, if any, that have been obtained prior to the Closing Date;
(vii) The Master Servicer covenants that its computer and other systems used in servicing the Mortgage Loans operate in a manner such that the Master Servicer can service the Mortgage Loans in accordance with the terms of this Agreement; and[Reserved];
(viii) The Master Servicer shall not waive any Prepayment Charge or part of a Prepayment Charge unless, (i) the enforceability thereof shall have been limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally or a Sub-Servicer servicing (ii) the Mortgage Loans on its behalf) is a member of MERS in good standing, and will comply in all material respects with the rules and procedures of MERS collectability thereof shall have been limited due to acceleration in connection with a foreclosure or other involuntary payment or (iii) in the Master Servicer's reasonable judgment as described in Section 3.01 hereof, (x) such waiver relates to a default or a reasonably foreseeable default, (y) such waiver would maximize recovery of total proceeds taking into account the value of such Prepayment Charge and related Mortgage Loan and (z) doing so is standard and customary in servicing of the similar Mortgage Loans (including any waiver of a Prepayment Charge in connection with a refinancing of a Mortgage Loan that are registered is related to a default or a reasonably foreseeable default). In no event shall the Master Servicer waive a Prepayment Charge in connection with MERS. It a refinancing of a Mortgage Loan that is understood and agreed that the representations, warranties and covenants not related to a default or a reasonably foreseeable default;
(ix) The information set forth in this Section 2.05 shall survive delivery of the Mortgage Files "monthly tape" provided to the Trustee or any of its affiliates is true and correct in all material respects;
(x) With respect to a Custodian on its behalf and shall inure to each Mortgage Loan, the benefit Assignment is in recordable form; (except that the name of the Trustee, the Trust Administrator, the Depositor assignee and the Certificateholders. Upon discovery by any of the Depositor, the Master Servicer, the Trust Administrator or the Trustee of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any recording information with respect to such Mortgage Loan or the interests therein of the Certificateholders, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the Trustee. Subject to Section 7.01, the obligation of the Master Servicer set forth in Section 2.03(c) to cure breaches shall constitute the sole remedies against the Master Servicer available to the Certificateholders, the Depositor, the Trust Administrator or the Trustee on behalf of the Certificateholders respecting a breach of the representations, warranties and covenants contained in this Section 2.05.is blank);
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Argent Securities Inc Asset Back Pass THR Certs Ser 2004 W3)
Representations, Warranties and Covenants of the Master Servicer. The Master Servicer hereby represents, warrants and covenants to the Trust Administrator and the Trustee, for the benefit of each of the Trustee, the Trust Administrator, the Certificateholders and to the Depositor that as of the Closing Date or as of such date specifically provided herein:
(i) The Master Servicer is a corporation duly organized, validly existing and in good standing under the laws of the State of New York Delaware and is duly authorized and qualified to transact any and all business contemplated by this Agreement to be conducted by the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to service the Mortgage Loans in accordance with the terms of this Agreement;
(ii) The Master Servicer has the full corporate power and authority to service each Mortgage Loan, and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary corporate action on the part of the Master Servicer the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties heretoDepositor and the Trustee, constitutes a legal, valid and binding obligation of the Master Servicer, enforceable against the Master Servicer in accordance with its terms, except to the extent that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ ' rights generally and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought;
(iii) The execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunder, the consummation of any other of the transactions herein contemplated, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Master Servicer and will not (A) result in a breach of any term or provision of the charter or by-laws of the Master Servicer or (B) conflict with, result in a breach, violation or acceleration of, or result in a default under, the terms of any other material agreement or instrument to which the Master Servicer is a party or by which it may be bound, or any statute, order or regulation applicable to the Master Servicer of any court, regulatory body, administrative agency or governmental body 60 having jurisdiction over the Master Servicer; and the Master Servicer 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 body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects or, to the Master Servicer’s 's knowledge, would in the future materially and adversely affect, (x) the ability of the Master Servicer to perform its obligations under this Agreement or (y) the business, operations, financial condition, properties or assets of the Master Servicer taken as a whole;
(iv) The Master Servicer is an approved seller/servicer for Fxxxxx Fannie Mae or Freddie Mxx or Fxxxxxx Mac in good standing and xx gxxx staxxxxx xnd is a HUD approved mortgagee pursuant to Section 203 and Section 211 of the National Housing Act;
(v) No Except as disclosed in the Prospectus Supplement, no litigation is pending against the Master Servicer that would materially and adversely affect the execution, delivery or enforceability of this Agreement or the ability of the Master Servicer to service the Mortgage Loans or to perform any of its other obligations hereunder in accordance with the terms hereof;
(vi) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the consummation of the transactions contemplated by this Agreement, except for such consents, approvals, authorizations or orders, if any, that have been obtained prior to the Closing Date;
(vii) The Master Servicer covenants that its computer information set forth in the Prepayment Charge Schedule attached hereto as Schedule 2 (including the prepayment charge summary attached thereto) is complete, true and other systems used correct in servicing all material respects at the Mortgage Loans operate in a manner date or dates respecting which such that the Master Servicer can service the Mortgage Loans information is furnished and each Prepayment Charge is permissible and enforceable in accordance with its terms (except to the terms of this Agreement; andextent that (i) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally and (ii) the collectability thereof may be limited due to acceleration in connection with a foreclosure or other involuntary payment;
(viii) The Master Servicer will not waive any Prepayment Charge or part of a Prepayment Charge unless, (i) the enforceability thereof shall have been limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally or (ii) the collectability thereof shall have been limited due to acceleration in connection with a foreclosure or other involuntary payment or (iii) in the Master Servicer's reasonable judgment as described in Section 3.01 hereof, (x) such waiver relates to a default or a Sub-Servicer reasonably foreseeable default, (y) such waiver would maximize recovery of total proceeds taking into account the value of such Prepayment Charge and related Mortgage Loan and (z) doing so is standard and customary in servicing the similar Mortgage Loans on (including any waiver of a Prepayment Charge in connection with a refinancing of a Mortgage Loan that is related to a default or a reasonably foreseeable default). In no event will the Master Servicer waive a Prepayment Charge in connection with a refinancing of a Mortgage Loan that is not related to a default or a reasonably foreseeable default;
(ix) The information set forth in the "monthly tape" provided to the Trustee or any of its behalf) affiliates is a member of MERS in good standing, true and will comply correct in all material respects respects;
(x) With respect to each Mortgage Loan, the Assignment is in recordable form; (except that the name of the assignee and the recording information with respect to such Mortgage Loan is blank) and each Mortgage Loan was originated in the name of the Master Servicer or an affiliate thereof;
(xi) The Master Servicer has fully furnished and will continue to fully furnish, in accordance with the rules Fair Credit Reporting Act and procedures of MERS in connection with its implementing regulations, accurate and complete information (e.g., favorable and unfavorable) on its borrower credit files to Equifax, Experian and Trans Union Credit Information Company or their successors on a monthly basis; and
(xii) The Master Servicer shall transmit full-file credit reporting data for each Mortgage Loan pursuant to Fannie Mae Guide Xxxouncement 95-19 and for each Mortgage Loan, the servicing Master Servicer shall report one of the Mortgage Loans that are registered with MERSfollowing statuses each month as follows: new origination, current, delinquent (30-, 60-, 90-days, etc.), foreclosed, or charged-off. It is understood and agreed that the representations, warranties and covenants set forth in this Section 2.05 shall survive delivery of the Mortgage Files to the Trustee or to a Custodian on its behalf Custodian, as the case may be, and shall inure to the benefit of the Trustee, the Trust Administrator, the Depositor and the Certificateholders. Upon discovery by any of the Depositor, the Master ServicerNIMS Insurer, the Trust Administrator Certificate Insurer, the Master Servicer or the Trustee of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any Mortgage Loan Loan, Prepayment Charge or the interests therein of the Certificateholders, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the NIMS Insurer, the Certificate Insurer and the Trustee. Subject to Section 7.01, the obligation of the Master Servicer set forth in Section 2.03(c2.03(b) to cure breaches (or in the case of the representations, warranties and covenants set forth in Section 2.05(vii) and Section 2.05(viii) above, to otherwise remedy such breaches pursuant to Section 2.03(b)) shall constitute the sole remedies against the Master Servicer available to the Certificateholders, the Depositor, the Trust Administrator Depositor or the Trustee on behalf of the Certificateholders respecting a breach of the representations, warranties and covenants contained in this Section 2.05. The preceding sentence shall not, however, limit any remedies available to the Certificateholders, the Depositor, the Certificate Insurer, or the Trustee on behalf of the Certificateholders (other than in the case of the representations, warranties and covenants set forth in Section 2.05(vii) and Section 2.05(viii) above) pursuant to the Mortgage Loan Purchase Agreement signed by the Master Servicer in its capacity as Seller, respecting a breach of the representations, warranties and covenants of the Master Servicer in its capacity as Seller contained in such Mortgage Loan Purchase Agreement.
Appears in 1 contract
Representations, Warranties and Covenants of the Master Servicer. The Master Servicer hereby represents, warrants and covenants to the Trust Administrator and the Trustee, for the benefit of each of the Trustee, the Trust Administrator, the Certificateholders and to the Depositor that as of the Closing Date or as of such date specifically provided herein:
(i) The Master Servicer is a corporation duly organized, validly existing and in good standing under the laws of the State of New York Delaware and is duly authorized and qualified to transact any and all business contemplated by this Agreement to be conducted by the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not 70 required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to service the Mortgage Loans in accordance with the terms of this Agreement;
(ii) The Master Servicer has the full corporate power and authority to service each Mortgage Loan, and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary corporate action on the part of the Master Servicer the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties heretoDepositor and the Trustee, constitutes a legal, valid and binding obligation of the Master Servicer, enforceable against the Master Servicer in accordance with its terms, except to the extent that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ ' rights generally and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought;
(iii) The execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunder, the consummation of any other of the transactions herein contemplated, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Master Servicer and will shall not (A) result in a breach of any term or provision of the charter or by-laws of the Master Servicer or (B) conflict with, result in a breach, violation or acceleration of, or result in a default under, the terms of any other material agreement or instrument to which the Master Servicer is a party or by which it may be bound, or any statute, order or regulation applicable to the Master Servicer of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Master Servicer; and the Master Servicer 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 body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects or, to the Master Servicer’s 's knowledge, would in the future materially and adversely affect, (x) the ability of the Master Servicer to perform its obligations under this Agreement or (y) the business, operations, financial condition, properties or assets of the Master Servicer taken as a whole;
(iv) The Master Servicer is an approved seller/servicer for Fxxxxx Mxx Fannie Mae or Fxxxxxx Freddie Mac in good standing and is xxxx xtxxxing xxx xx a HUD approved mortgagee pursuant to Section 203 and Section 211 of the National Housing Act;
(v) No Except as disclosed in the Prospectus Supplement, no litigation is pending against the Master Servicer that would materially and adversely affect the execution, delivery or enforceability of this Agreement or the ability of the Master Servicer to service the Mortgage Loans or to perform any of its other obligations hereunder in accordance with the terms hereof;
(vi) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the consummation of the transactions contemplated by this Agreement, except for such consents, approvals, authorizations or orders, if any, that have been obtained prior to the Closing Date;
(vii) The Master Servicer covenants that its computer and other systems used in servicing the Mortgage Loans operate in a manner such that the Master Servicer can service the Mortgage Loans in accordance with the terms of this Agreement; and[Reserved];
(viii) The Master Servicer shall not waive any Prepayment Charge or part of a Prepayment Charge unless, (i) the enforceability thereof shall have been limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally or a Sub-Servicer servicing (ii) the Mortgage Loans on its behalf) is a member of MERS in good standing, and will comply in all material respects with the rules and procedures of MERS collectability thereof shall have been limited due to acceleration in connection with a foreclosure or other involuntary payment or (iii) in the Master Servicer's reasonable judgment as described in Section 3.01 hereof, (x) such waiver relates to a default or a reasonably foreseeable default, (y) such waiver would maximize recovery of total proceeds taking into account the value of such Prepayment Charge and related Mortgage Loan and (z) doing so is standard and customary in servicing of the similar Mortgage Loans (including any waiver of a Prepayment Charge in connection with a refinancing of a Mortgage Loan that are registered is related to a default or a reasonably foreseeable default). In no event shall the Master Servicer waive a Prepayment Charge in connection with MERS. It a refinancing of a Mortgage Loan that is understood and agreed that the representations, warranties and covenants not related to a default or a reasonably foreseeable default;
(ix) The information set forth in this Section 2.05 shall survive delivery of the Mortgage Files "monthly tape" provided to the Trustee or any of its affiliates is true and correct in all material respects;
(x) With respect to a Custodian on its behalf and shall inure to each Mortgage Loan, the benefit Assignment is in recordable form; (except that the name of the Trustee, the Trust Administrator, the Depositor assignee and the Certificateholders. Upon discovery by any of the Depositor, the Master Servicer, the Trust Administrator or the Trustee of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any recording information with respect to such Mortgage Loan or the interests therein of the Certificateholders, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the Trustee. Subject to Section 7.01, the obligation of the Master Servicer set forth in Section 2.03(c) to cure breaches shall constitute the sole remedies against the Master Servicer available to the Certificateholders, the Depositor, the Trust Administrator or the Trustee on behalf of the Certificateholders respecting a breach of the representations, warranties and covenants contained in this Section 2.05.is blank);
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Argent Securities Inc Asset Backed Pass Thru Cer Ser 2003-W9)
Representations, Warranties and Covenants of the Master Servicer. The Master Servicer hereby represents, warrants and covenants to the Trust Administrator and the Trustee, for the benefit of each of the Trustee, the Trust Administrator, the Certificateholders and to the Depositor that as of the Closing Date or as of such date specifically provided herein:
(i) The Master Servicer is a corporation duly organized, validly existing and in good standing under the laws of the State state of New York its incorporation and is duly authorized and qualified to transact any and all business contemplated by this Agreement to be conducted by the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent necessary to ensure its ability to enforce each Mortgage Home Equity Loan and to service the Mortgage Home Equity Loans in accordance with the terms of this Agreement;
(ii) The Master Servicer has the full corporate power and authority to service each Mortgage Home Equity Loan, and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary corporate action on the part of the Master Servicer the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties heretoDepositor and the Trustee, constitutes a legal, valid and binding obligation of the Master Servicer, enforceable against the Master Servicer in accordance with its terms, except to the extent that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ ' rights generally and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought;
(iii) The execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Home Equity Loans by the Master Servicer hereunder, the consummation by the Master Servicer of any other of the transactions herein contemplated, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Master Servicer and will not (A) result in a breach of any term or provision of the charter or by-laws of the Master Servicer or (B) conflict with, result in a breach, violation or acceleration of, or result in a default under, the terms of any other material agreement or instrument to which the Master Servicer is a party or by which it may be bound, or any statute, order or regulation applicable to the Master Servicer of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Master Servicer; and the Master Servicer 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 body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects or, to the Master Servicer’s 's knowledge, would in the future materially and adversely affect, (x) the ability of the Master Servicer to perform its obligations under this Agreement or (y) the business, operations, financial condition, properties or assets of the Master Servicer taken as a whole;
(iv) The Master Servicer is an approved seller/servicer for Fxxxxx Mxx Xxxxxx Xxx or Fxxxxxx Xxxxxxx Mac in good standing and is a HUD approved mortgagee pursuant to Section 203 and Section 211 of the National Housing Act;
(v) No litigation is pending against the Master Servicer that would materially and adversely affect the execution, delivery or enforceability of this Agreement or the ability of the Master Servicer to service the Mortgage Home Equity Loans or to perform any of its other obligations hereunder in accordance with the terms hereof;
(vi) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the consummation by the Master Servicer of the transactions contemplated by this Agreement, except for such consents, approvals, authorizations or orders, if any, that have been obtained prior to the Closing Date;
(vii) The information set forth in the Prepayment Charge Schedule is complete, true and correct in all material respects at the date or dates respecting which such information is furnished and each Prepayment Charge is permissible and enforceable in accordance with its terms under applicable law upon the Mortgagor's full and voluntary principal prepayment (except to the extent that: (1) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally; (2) the collectability thereof may be limited due to acceleration in connection with a foreclosure or other involuntary prepayment; or (3) subsequent changes in applicable law may limit or prohibit enforceability thereof);
(viii) The Master Servicer will not waive any Prepayment Charge or part of a Prepayment Charge unless such waiver would maximize recovery of total proceeds taking into account the value of such Prepayment Charge and related Home Equity Loan and doing so is standard and customary in servicing home equity loans similar to the Home Equity Loans (including any waiver of a Prepayment Charge in connection with a refinancing of a Home Equity Loan that is related to a default or a reasonably foreseeable default), and in no event will it waive a Prepayment Charge in connection with a refinancing of a Home Equity Loan that is not related to a default or a reasonably foreseeable default; and
(ix) The Master Servicer covenants that its computer and other systems used in servicing the Mortgage Home Equity Loans operate in a manner such that the Master Servicer can service the Mortgage Home Equity Loans in accordance with the terms of this Agreement; and
(viii) The Master Servicer (or a Sub-Servicer servicing the Mortgage Loans on its behalf) is a member of MERS in good standing, and will comply in all material respects with the rules and procedures of MERS in connection with the servicing of the Mortgage Loans that are registered with MERS. It is understood and agreed that the representations, warranties and covenants set forth in this Section 2.05 shall survive delivery of the Mortgage Files to the Trustee or to a Custodian on its behalf Custodian, as the case may be, and shall inure to the benefit of the Trustee, the Trust Administrator, the Depositor and the Certificateholders. Upon discovery by any of the Depositor, the Master Servicer, the Trust Administrator NIMs Insurer or the Trustee of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any Mortgage Loan Home Equity Loan, Prepayment Charge or the interests therein of the Certificateholders, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the Trustee. Subject to Section 7.01, the The obligation of the Master Servicer set forth in Section 2.03(c) to cure breaches shall constitute the sole remedies remedy against the Master Servicer available to the Certificateholders, the Depositor, the Trust Administrator Depositor or the Trustee on behalf of the Certificateholders respecting a breach of the representations, warranties and covenants contained in this Section 2.05. The preceding sentence shall not, however, limit any remedies available to the Certificateholders, the Depositor or the Trustee on behalf of the Certificateholders, pursuant to the Mortgage Loan Purchase Agreement signed by the Master Servicer in its capacity as Seller, respecting a breach of the representations, warranties and covenants of the Master Servicer in its capacity as Seller contained in the Mortgage Loan Purchase Agreement or pursuant to Section 7.01 hereof.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Asset Backed Sec Corp Home Equity Loan Series 2000 Lb1)
Representations, Warranties and Covenants of the Master Servicer. The Master Servicer hereby represents, warrants and covenants to the Trust Administrator and the Trustee, for the benefit of each of the Trustee, the Trust Administrator, the Certificateholders and to the Depositor that as of the Closing Date or as of such date specifically provided herein:
(i) The Master Servicer is a corporation duly organized, validly existing and in good standing under the laws of the State of New York California and is duly authorized and qualified to transact any and all business contemplated by this Agreement to be conducted by the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to service the Mortgage Loans in accordance with the terms of this Agreement;
(ii) The Master Servicer has the full corporate power and authority to service each Mortgage Loan, conduct its business as presently conducted by it and to execute, deliver and perform, and to enter into and consummate the consummate, all transactions contemplated by this Agreement and Agreement. The Master Servicer has duly authorized by all necessary corporate action on the part of the Master Servicer the execution, delivery and performance of this Agreement; , has duly executed and delivered this Agreement, and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties heretoDepositor, the Trust Administrator and the Trustee, constitutes a legal, valid and binding obligation of the Master Servicer, enforceable against the Master Servicer it in accordance with its terms, terms except to the extent that (a) as the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other reorganization or similar laws relating to affecting the enforcement of creditors’ ' rights generally and (b) the remedy by general principles of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be broughtequity;
(iii) The execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunder, the consummation by the Master Servicer of any other of the transactions herein contemplated, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Master Servicer and will not (A) result in a breach of any term or provision of the charter or by-laws of the Master Servicer or (B) conflict with, result in a breach, violation or acceleration of, or result in a default under, the terms of any other material agreement or instrument to which the Master Servicer is a party or by which it may be bound, or any statute, order or regulation applicable to the Master Servicer of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Master Servicer; and the Master Servicer 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 body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects or, to the Master Servicer’s 's knowledge, would in the future materially and adversely affect, (x) the ability of the Master Servicer to perform its obligations under this Agreement or (y) the business, operations, financial condition, properties or assets of the Master Servicer taken as a whole;
(iv) The Master Servicer is an approved seller/servicer for Fxxxxx Mxx or Fxxxxxx Mac in good standing and is a HUD approved mortgagee pursuant to Section 203 and Section 211 of the National Housing Act. No event has occurred, including but not limited to a change in insurance coverage, that would make the Master Servicer unable to comply with HUD eligibility requirements or that would require notification to HUD;
(v) The Master Servicer does not believe, nor does it have any reason or cause to believe, that it cannot perform each and every covenant made by it and contained in this Agreement;
(vi) With respect to each Mortgage Loan, the Master Servicer, or Sub- Servicer, if any, is in possession of a complete Mortgage File, except for such documents as have been delivered to the Trust Administrator;
(vii) No litigation is pending against the Master Servicer that would materially and adversely affect the execution, delivery or enforceability of this Agreement or the ability of the Master Servicer to service the Mortgage Loans or to perform any of its other obligations hereunder in accordance with the terms hereof;
(viviii) There are no actions or proceedings against, or investigations known to it of, the Master Servicer before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by the Master Servicer of its obligations under, or validity or enforceability of, this Agreement;
(ix) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the consummation by it of the transactions contemplated by this Agreement, except for such consents, approvals, authorizations or orders, if any, that have been obtained prior to the Closing Date;
(viix) The information set forth in the Prepayment Charge Schedule (including the prepayment charge summary attached thereto) is complete, true and correct in all material respects on the date or dates when such information is furnished and each Prepayment Charge is permissible and enforceable in accordance with its terms (except to the extent that the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally or the collectability thereof may be limited due to acceleration in connection with a foreclosure) under applicable state law;
(xi) The Master Servicer will not waive any Prepayment Charge unless it is waived in accordance with the standard set forth in Section 3.01; and
(xii) The Master Servicer covenants that its computer and other systems used in servicing the Mortgage Loans operate in a manner such that the Master Servicer can service the Mortgage Loans in accordance with the terms of this Agreement; and
(viii) The Master Servicer (or a Sub-Servicer servicing the Mortgage Loans on its behalf) is a member of MERS in good standing, and will comply in all material respects with the rules and procedures of MERS in connection with the servicing of the Mortgage Loans that are registered with MERS. It is understood and agreed that the representations, warranties and covenants set forth in this Section 2.05 shall survive delivery of the Mortgage Files to the Trustee or to a Custodian on its behalf Trust Administrator and shall inure to the benefit of the TrusteeTrust Administrator, the Trust AdministratorTrustee, the Depositor and the Certificateholders. Upon discovery by any of the Depositor, the Master Servicer, the Trust Administrator or the Trustee of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any Mortgage Loan Loan, Prepayment Charge or the interests therein of the Certificateholders, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the Trust Administrator and the Trustee. Subject to Section 7.01, unless such breach shall not be susceptible of cure within 90 days, the obligation of the Master Servicer set forth in Section 2.03(c) to cure breaches shall constitute the sole remedies remedy against the Master Servicer available to the Certificateholders, the Depositor, Depositor or the Trust Administrator or and the Trustee on behalf of the Certificateholders respecting a breach of the representations, warranties and covenants contained in this Section 2.05. Notwithstanding the foregoing, within 90 days of the earlier of discovery by the Master Servicer or receipt of notice by the Master Servicer of the breach of the representation or covenant of the Master Servicer set forth in Sections 2.05(x) or 2.05(xi) above which materially and adversely affects the interests of the Holders of the Class P Certificates in any Prepayment Charge, the Master Servicer shall remedy such breach as follows: (a) if the representation made by the Master Servicer in Section 2.05(x) above is breached and a Principal Prepayment has occurred in the applicable Prepayment Period, the Master Servicer must pay the amount of the scheduled Prepayment Charge, for the benefit of the holder of the Class P Certificate, by depositing such amount into the Collection Account, net of any amount previously collected by the Master Servicer or paid by the Master Servicer, for the benefit of the Holders of the Class P Certificates, in respect of such Prepayment Charge; and (b) if any of the covenants made by the Master Servicer in Section 2.05(xi) above is breached, the Master Servicer must pay the amount of such waived Prepayment Charge, for the benefit of the holders of the Class P Certificates, by depositing such amount into the Collection Account. The foregoing shall not, however, limit any remedies available to the Certificateholders, the Depositor, the Trust Administrator or the Trustee on behalf of the Certificateholders, pursuant to the Mortgage Loan Purchase Agreement signed by the Master Servicer in its capacity as Originator, respecting a breach of the representations, warranties and covenants of the Master Servicer in its capacity as Originator contained in the Mortgage Loan Purchase Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (New Century Mort Sec Inc New Cent Hm Eq Ln Tr Ser 2000-Nc1)
Representations, Warranties and Covenants of the Master Servicer. The Master Servicer hereby represents, warrants and covenants to the Trust Administrator and the Trustee, for the benefit of each of the Trustee, the Trust Administrator, the Certificateholders and to the Depositor that as of the Closing Date or as of such date specifically provided herein:
(i) The Master Servicer is a corporation federally chartered savings bank duly organized, organized and validly existing and in good standing under the laws of the State of New York United States and is duly authorized and qualified to transact any and all business contemplated by this Agreement to be conducted by the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to service the Mortgage Loans in accordance with the terms of this Agreement;
(ii) The Master Servicer has the full corporate power and authority to service each Mortgage Loan, conduct its business as presently conducted by it and to execute, deliver and perform, and to enter into and consummate the consummate, all transactions contemplated by this Agreement and Agreement. The Master Servicer has duly authorized by all necessary corporate action on the part of the Master Servicer the execution, delivery and performance of this Agreement; , has duly executed and delivered this Agreement, and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties heretoDepositor and the Trustee, constitutes a legal, valid and binding obligation of the Master Servicer, enforceable against the Master Servicer it in accordance with its terms, terms except to the extent that (a) as the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other reorganization or similar laws relating to creditors’ rights affecting the enforcement of creditors'rights generally and (b) the remedy by general principles of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be broughtequity;
(iii) The execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunder, the consummation by the Master Servicer of any other of the transactions herein contemplated, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Master Servicer and will not (A) result in a breach of any term or provision of the charter or by-laws of the Master Servicer or (B) conflict with, result in a breach, violation or acceleration of, or result in a default under, the terms of any other material agreement or instrument to which the Master Servicer is a party or by which it may be bound, or any statute, order or regulation applicable to the Master Servicer of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Master Servicer; and the Master Servicer 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 body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects or, to the Master Servicer’s 's knowledge, would in the future materially and adversely affect, (x) the ability of the ofthe Master Servicer to perform its obligations under this Agreement or (y) the business, operations, financial condition, properties or assets of the Master Servicer taken as a whole;
(iv) The Master Servicer is an approved seller/servicer for Fxxxxx Mxx or Fxxxxxx Mac in good standing and is a HUD approved mortgagee pursuant servicer. No event has occurred, including but not limited to Section 203 of a change in insurance coverage, that would make the National Housing ActMaster Servicer unable to comply with HUD eligibility requirements or that would require notification to HUD;
(v) The Master Servicer does not believe, nor does it have any reason or cause to believe, that it cannot perform each and every covenant made by it and contained in this Agreement;
(vi) No information, certificate of an officer, statement furnished in writing or report delivered to the Trustee by the Master Servicer in connection with the transactions contemplated hereby contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein, in light of the circumstances under which they were made, not misleading (except to the extent that any such information, statement or report has been corrected or superseded in writing by the Master Servicer as of the Closing Date, it being understood (i) that the Master Servicer has delivered no certificate of an officer prior to the Closing Date and (ii) that any representations, warranties and indemnifications as to the accuracy and completeness of the Prospectus Supplement made by the Master Servicer in agreements and Officers' Certificates delivered by the Master Servicer on the Closing Date in connection with the transactions contemplated by this Agreement shall be interpreted such that the information in the Prospectus Supplement is deemed to correct and/or supersede as of the Closing Date, within the meaning of this parenthetical, any information, statement or report delivered by the Master Servicer to the Trustee prior to the Closing Date that is inconsistent with the information in the Prospectus Supplement or that was omitted from such information, statement or report delivered prior to the Closing Date);
(vii) No litigation is pending against the Master Servicer that would materially and adversely affect the execution, delivery or enforceability of this Agreement or the ability of the Master Servicer to service the Mortgage Loans or to perform any of its other obligations hereunder in accordance with the terms hereof;
(viviii) There are no actions or proceedings against, or investigations known to it of, the Master Servicer before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by the Master Servicer of its obligations under, or validity or enforceability of, this Agreement;
(ix) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the consummation by it of the transactions contemplated by this Agreement, except for such consents, approvals, authorizations or orders, if any, that have been obtained prior to the Closing Date;
(viix) The Master Servicer covenants that its computer and other systems used in servicing the Mortgage Loans operate in a manner such that the Master Servicer can service the Mortgage Loans will not waive any Prepayment Charge unless it is waived in accordance with the terms of this Agreementstandard set forth in Section 3.01; and
(viiixi) The With respect to each Mortgage Loan, the Master Servicer (or a Sub-Servicer servicing the Mortgage Loans on its behalf) is a member of MERS in good standinghas fully and accurately furnished, and will comply continue to fully and accurately furnish, complete information on the related borrower credit files to Equifax, Experian and Trans Union Credit Information Company, in all material respects accordance with the rules Fair Credit Reporting Act and procedures of MERS in connection with the servicing of the Mortgage Loans that are registered with MERSits implementing regulations. It is understood and agreed that the representations, warranties and covenants set forth in this Section 2.05 shall survive delivery of the Mortgage Files to the Trustee or to a the Custodian on its behalf and shall inure to the benefit of the Trustee, the Trust Administrator, the Depositor and the Certificateholders. Upon discovery by any of the Depositor, the Master Servicer, the Trust Administrator NIMS Insurer or the Trustee of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any Mortgage Loan or the interests therein of the Certificateholders, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the NIMS Insurer and the Trustee. Subject to Section 7.01, unless such breach shall not be susceptible of cure within 90 days, the obligation of the Master Servicer set forth in Section 2.03(c) to cure breaches shall constitute the sole remedies against the Master Servicer available to the Certificateholders, the Depositor, the Trust Administrator or the Trustee on behalf of the Certificateholders respecting a breach of the representations, warranties and covenants contained in this Section 2.05.this
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Mort Asset Sec Transactions Inc Mastr as Bk Sec Tr 03 Nc1)
Representations, Warranties and Covenants of the Master Servicer. The Master Servicer hereby represents, warrants and covenants to the Trust Administrator and the Trustee, for the benefit of each of the Trustee, the Trust AdministratorCertificateholders, the Certificateholders Certificate Insurer and to the Depositor that as of the Closing Date or as of such date specifically provided herein:
(i) The Master Servicer is a corporation duly organized, validly existing and in good standing under the laws of the State of New York Delaware and is duly authorized and qualified to transact any and all business contemplated by this Agreement to be conducted by the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to service the Mortgage Loans in accordance with the terms of this Agreement;
(ii) The Master Servicer has the full corporate power and authority to originate, hold, sell and service each Mortgage Loan, and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary corporate action on the part of the Master Servicer the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties heretoDepositor and the Trustee, constitutes a legal, valid and binding obligation of the Master Servicer, enforceable against the Master Servicer in accordance with its terms, except to the extent that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ ' rights generally and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought;
(iii) The execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunder, the consummation of any other of the transactions herein contemplated, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Master Servicer and will not (A) result in a breach of any term or provision of the charter or by-laws of the Master Servicer or (B) conflict with, result in a breach, violation or acceleration of, or result in a default under, the terms of any other material agreement or instrument to which the Master Servicer is a party or by which it may be bound, or any statute, order or regulation applicable to the Master Servicer of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Master Servicer; and the Master Servicer 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 body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects or, to the Master Servicer’s 's knowledge, would in the future materially and adversely affect, (x) the ability of the Master Servicer to perform its obligations under this Agreement or (y) the business, operations, financial condition, properties or assets of the Master Servicer taken as a whole;
(iv) The Master Servicer is an approved seller/servicer for Fxxxxx Mxx FNMA or Fxxxxxx Mac FHLMC in good standing and is a HUD approved mortgagee pursuant to Section 203 of the National Housing Act;
(v) No litigation is pending against the Master Servicer that would materially and adversely affect the execution, delivery or enforceability of this Agreement or the ability of the Master Servicer to service the Mortgage Loans or to perform any of its other obligations hereunder in accordance with the terms hereof;; and
(vi) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the consummation of the transactions contemplated by this Agreement, except for such consents, approvals, authorizations or orders, if any, that have been obtained prior to the Closing Date;
(vii) The Master Servicer covenants that its computer and other systems used in servicing the Mortgage Loans operate in a manner such that the Master Servicer can service the Mortgage Loans in accordance with the terms of this Agreement; and
(viii) The Master Servicer (or a Sub-Servicer servicing the Mortgage Loans on its behalf) is a member of MERS in good standing, and will comply in all material respects with the rules and procedures of MERS in connection with the servicing of the Mortgage Loans that are registered with MERS. It is understood and agreed that the representations, warranties and covenants set forth in this Section 2.05 shall survive delivery of the Mortgage Files to the Trustee or to a Custodian on its behalf Custodian, as the case may be, and shall inure to the benefit of the Trustee, the Trust AdministratorDepositor, the Depositor Certificateholders and the CertificateholdersCertificate Insurer. Upon discovery by any of the Depositor, the Master Servicer, the Trust Administrator Servicer or the Trustee of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any Mortgage Loan or the interests therein of the CertificateholdersCertificateholders and the Certificate Insurer, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the TrusteeTrustee and the Certificate Insurer. Subject to Section 7.01, the The obligation of the Master Servicer set forth in Section 2.03(c) to cure breaches shall constitute the sole remedies against the Master Servicer available to the Certificateholders, the Depositor, the Trust Administrator Depositor or the Trustee on behalf of the Certificateholders respecting a breach of the representations, warranties and covenants contained in this Section 2.05. The preceding sentence shall not, however, limit any remedies available to the Certificateholders, the Depositor or the Trustee on behalf of the Certificateholders, pursuant to the Mortgage Loan Purchase Agreement signed by the Master Servicer in its capacity as Originator, respecting a breach of the representations, warranties and covenants of the Master Servicer in its capacity as Originator contained in such Mortgage Loan Purchase Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Salomon Brothers Mort Sec Vii Inc Fl Rte Cert Se 1996-Lb1)
Representations, Warranties and Covenants of the Master Servicer. The Master Servicer hereby represents, warrants and covenants to the Trust Administrator and the Trustee, for the benefit of each of the Trustee, the Trust Administrator, the Certificateholders and to the Depositor that as of the Closing Date or as of such date specifically provided herein:
(i) The Master Servicer is a corporation duly organized, validly existing and in good standing under the laws of the State of New York Delaware and is duly authorized and qualified to transact any and all business contemplated by this Agreement to be conducted by the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to service the Mortgage Loans in accordance with the terms of this Agreement;
(ii) The Master Servicer has the full corporate power and authority to service each Mortgage Loan, and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary corporate action on the part of the Master Servicer the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties heretoDepositor and the Trustee, constitutes a legal, valid and binding obligation of the Master Servicer, enforceable against the Master Servicer in accordance with its terms, except to the extent that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ ' rights generally and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought;
(iii) The execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunder, the consummation of any other of the transactions herein contemplated, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Master Servicer and will not (A) result in a breach of any term or provision of the charter or by-laws of the Master Servicer or (B) conflict with, result in a breach, violation or acceleration of, or result in a default under, the terms of any other material agreement or instrument to which the Master Servicer is a party or by which it may be bound, or any statute, order or regulation applicable to the Master Servicer of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Master Servicer; and the Master Servicer 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 body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects or, to the Master Servicer’s 's knowledge, would in the future materially and adversely affect, (x) the ability of the Master Servicer to perform its obligations under this Agreement or (y) the business, operations, financial condition, properties or assets of the Master Servicer taken as a whole;
(iv) The Master Servicer is an approved seller/servicer for Fxxxxx Fannie Mae or Freddie Mxx or Fxxxxxx Mac in good standing and xx gxxx staxxxxx xnd is a HUD approved mortgagee pursuant to Section 203 and Section 211 of the National Housing Act;
(v) No Except as disclosed in the Prospectus Supplement, no litigation is pending against the Master Servicer that would materially and adversely affect the execution, delivery or enforceability of this Agreement or the ability of the Master Servicer to service the Mortgage Loans or to perform any of its other obligations hereunder in accordance with the terms hereof;
(vi) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the consummation of the transactions contemplated by this Agreement, except for such consents, approvals, authorizations or orders, if any, that have been obtained prior to the Closing Date;
(vii) The Master Servicer covenants that its computer information set forth in the Prepayment Charge Schedule attached hereto as Schedule 2 (including the prepayment charge summary attached thereto) is complete, true 61 and other systems used correct in servicing all material respects at the Mortgage Loans operate in a manner date or dates respecting which such that the Master Servicer can service the Mortgage Loans information is furnished and each Prepayment Charge is permissible and enforceable in accordance with its terms (except to the terms of this Agreement; andextent that (i) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally and (ii) the collectability thereof may be limited due to acceleration in connection with a foreclosure or other involuntary payment;
(viii) The Master Servicer shall not waive any Prepayment Charge or part of a Prepayment Charge unless, (i) the enforceability thereof shall have been limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally or a Sub-Servicer servicing (ii) the Mortgage Loans on its behalf) is a member of MERS in good standing, and will comply in all material respects with the rules and procedures of MERS collectability thereof shall have been limited due to acceleration in connection with a foreclosure or other involuntary payment or (iii) in the Master Servicer's reasonable judgment as described in Section 3.01 hereof, (x) such waiver relates to a default or a reasonably foreseeable default, (y) such waiver would maximize recovery of total proceeds taking into account the value of such Prepayment Charge and related Mortgage Loan and (z) doing so is standard and customary in servicing of the similar Mortgage Loans (including any waiver of a Prepayment Charge in connection with a refinancing of a Mortgage Loan that are registered is related to a default or a reasonably foreseeable default). In no event shall the Master Servicer waive a Prepayment Charge in connection with MERS. It a refinancing of a Mortgage Loan that is understood and agreed that the representations, warranties and covenants not related to a default or a reasonably foreseeable default;
(ix) The information set forth in this Section 2.05 shall survive delivery of the Mortgage Files "monthly tape" provided to the Trustee or any of its affiliates is true and correct in all material respects;
(x) With respect to a Custodian on its behalf and shall inure to each Mortgage Loan, the benefit Assignment is in recordable form; (except that the name of the Trustee, the Trust Administrator, the Depositor assignee and the Certificateholders. Upon discovery by any of the Depositor, the Master Servicer, the Trust Administrator or the Trustee of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any recording information with respect to such Mortgage Loan or is blank) and each Mortgage Loan was originated in the interests therein of the Certificateholders, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the Trustee. Subject to Section 7.01, the obligation name of the Master Servicer set forth in Section 2.03(c) to cure breaches shall constitute the sole remedies against the Master Servicer available to the Certificateholders, the Depositor, the Trust Administrator or the Trustee on behalf of the Certificateholders respecting a breach of the representations, warranties and covenants contained in this Section 2.05.an affiliate thereof;
Appears in 1 contract
Representations, Warranties and Covenants of the Master Servicer. The Master Servicer hereby represents, represents and warrants to and covenants to with the Trust Administrator and the Trustee, for the benefit of each of the Owner Trustee, the Trust AdministratorIndenture Trustee, [the Securities Insurer,] the Noteholders, the Certificateholders Depositor, and to the Depositor Transferor that as of the Closing Date or as of such date specifically provided herein:
(ia) The Master Servicer is a corporation duly organized, validly existing existing, and in good standing under the laws of the State state of New York and has all licenses necessary to carry on its business as now being conducted and is duly authorized licensed, qualified and qualified in good standing in each state where any property securing the Home Loans is located if the laws of such state require licensing or qualification in order to transact any and all conduct business contemplated by this Agreement to be of the type conducted by the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not required and perform its obligations as Master Servicer hereunder and under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to Servicing Agreement; the extent necessary to ensure its ability to enforce each Mortgage Loan and to service the Mortgage Loans in accordance with the terms of this Agreement;
(ii) The Master Servicer has the full corporate power and authority to service each Mortgage Loan, execute and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary corporate action on under the part of the Master Servicer Servicing Agreement and to perform its obligations in accordance herewith and therewith; the execution, delivery and performance of this Agreement; Agreement and under the Servicing Agreement (including all instruments of transfer to be delivered pursuant to this Agreement, assuming the due authorization, execution and delivery thereof ) by the other parties heretoMaster Servicer and the consummation of the transactions contemplated hereby and thereby have been duly and validly authorized by all necessary action; this Agreement and under the Servicing Agreement evidences the valid, constitutes a legal, valid binding and binding enforceable obligation of the Master Servicer; and all requisite action has been taken by the Master Servicer to make this Agreement valid, binding and enforceable against upon the Master Servicer in accordance with its terms, except subject to and under the extent that (a) Servicing Agreement the enforceability thereof may be limited by effect of bankruptcy, insolvency, moratoriumreorganization, receivership moratorium and other other, similar laws relating to creditors’ or affecting creditor’s rights generally and or the application of equitable principles in any proceeding, whether at law or in equity.
(b) All actions, approvals, consents, waivers, exemptions, variances, franchises, orders, permits authorizations, rights and licenses required to be taken, given or obtained, as the remedy of specific performance case may be, by or from any federal, state or other governmental authority or agency, that are necessary in connection with the purchase and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion sale of the court before which any proceeding therefor may be brought;
(iii) The Notes and the execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunderof the documents to which it is a party, have been duly taken, given or obtained, as the case may be, are in full force and effect, are not subject to any pending proceedings or appeals (administrative, judicial or otherwise) and either the time within which any appeal therefrom may be taken or review thereof may be obtained has expired or no review thereof may be obtained or appeal therefrom taken, and are adequate to authorize the consummation of any other of the transactions herein contemplated, contemplated by this Agreement and the fulfillment of or compliance with other documents on the terms hereof are in the ordinary course of business part of the Master Servicer and the performance by the Master Servicer of its obligations as Master Servicer under this Agreement and such other documents to which it is a party.
(c) The consummation of the transaction contemplated by this Agreement and the Servicing Agreement will not (A) result in a the breach of any term terms or provision provisions of the charter certificate of incorporation or by-laws of the Master Servicer or (B) conflict with, result in a breach, violation the breach of any term or acceleration provision of, or conflict with or constitute a default under or result in a default the acceleration for any obligation under, the terms of any material agreement, indenture or loan or credit agreement or other material agreement or instrument to which the Master Servicer or to its property is a party or by which it may be boundsubject, or result in the violation of any statutelaw, order rule, regulation, order, judgment or regulation applicable decree to which the Master Servicer of or its property is subject;
(d) Neither this Agreement nor any court, regulatory body, administrative agency report or governmental body having jurisdiction over other document prepared by the Master ServicerServicer and furnished or to be furnished pursuant to this Agreement or in connection with the transactions contemplated hereby contains any untrue statement of material fact; and the Master Servicer statements set forth in the Prospectus Supplement under the caption “THE MASTER SERVICER” do not contain an untrue statement of a material fact and do not omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(e) There is not a party tono action, bound bysuit, proceeding 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 body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects investigation pending or, to the best of the Master Servicer’s knowledge, would in the future materially and adversely affect, (x) the ability of threatened against the Master Servicer to perform its obligations under this Agreement which, either in any one instance or (y) in the aggregate, may result in any material adverse change in the business, operations, financial condition, properties or assets of the Master Servicer or in any material impairment of the right or ability of the Master Servicer to carry on its business substantially as now conducted, or in any material liability on the part of the Master Servicer or which would draw into question the validity of this Agreement, the Servicing Agreement or the Home Loans or of any action taken as a whole;or to be taken in connection with the obligations of the Master Servicer contemplated herein, or which would be likely to impair the ability of the Master Servicer to perform under the terms of this Agreement or the Servicing Agreement.
(ivf) The Master Servicer is an approved seller/servicer for Fxxxxx Mxx not in default with respect to any order or Fxxxxxx Mac in good standing and is a HUD approved mortgagee pursuant to Section 203 decree of the National Housing Act;
(v) No litigation is pending against the Master Servicer any court or any order, regulation or demand of any federal, state, municipal or governmental agency, which default might have consequences that would materially and adversely affect the execution, delivery condition (financial or enforceability of this Agreement other) or the ability operations of the Master Servicer to service or its properties or might have consequences that would adversely affect its performance hereunder or under the Mortgage Loans or to perform any of its other obligations hereunder in accordance with the terms hereof;
(vi) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the consummation of the transactions contemplated by this Servicing Agreement, except for such consents, approvals, authorizations or orders, if any, that have been obtained prior to the Closing Date;
(vii) The Master Servicer covenants that its computer and other systems used in servicing the Mortgage Loans operate in a manner such that the Master Servicer can service the Mortgage Loans in accordance with the terms of this Agreement; and
(viii) The Master Servicer (or a Sub-Servicer servicing the Mortgage Loans on its behalf) is a member of MERS in good standing, and will comply in all material respects with the rules and procedures of MERS in connection with the servicing of the Mortgage Loans that are registered with MERS. It is understood and agreed that the representations, warranties and covenants set forth in this Section 2.05 3.03 shall survive delivery of the Mortgage respective Home Loan Files to the Indenture Trustee or to a Custodian on its behalf and shall inure to the benefit of the TrusteeDepositor, the Trust AdministratorNoteholders, the Depositor Owner Trustee[, the Securities Insurer], and the CertificateholdersIndenture Trustee. Upon discovery by any of the Transferor, the Depositor, the Master ServicerIndenture Trustee[, the Trust Administrator Securities Insurer] or the Owner Trustee of a breach of any of the foregoing representations, warranties and covenants which that materially and adversely affects the value of any Mortgage Home Loan or the interests therein of the Certificateholderssuch Person therein, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the Trustee. Subject to Section 7.01, the obligation of the Master Servicer set forth in Section 2.03(c) to cure breaches shall constitute the sole remedies against the Master Servicer available to the Certificateholders, the Depositor, the Trust Administrator or the Trustee on behalf of the Certificateholders respecting a breach of the representations, warranties and covenants contained in this Section 2.05other parties.
Appears in 1 contract
Representations, Warranties and Covenants of the Master Servicer. The Master Servicer hereby represents, represents and warrants to and covenants to with the Trust Administrator and the Trustee, for the benefit of each of the Owner Trustee, the Trust AdministratorIndenture Trustee, the Certificateholders Securities Insurer, the Noteholders, the Depositor, and to the Depositor Transferor that as of the Closing Date or as of such date specifically provided herein:
(ia) The Master Servicer is a corporation industrial loan company duly organized, validly existing existing, and in good standing under the laws of the State state of New York California and has all licenses necessary to carry on its business as now being conducted and is duly authorized licensed, qualified and qualified in good standing in each state where any property securing the Home Loans is located if the laws of such state require licensing or qualification in order to transact any and all conduct business contemplated by this Agreement to be of the type conducted by the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not required and perform its obligations as Master Servicer hereunder and under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to Servicing Agreement; the extent necessary to ensure its ability to enforce each Mortgage Loan and to service the Mortgage Loans in accordance with the terms of this Agreement;
(ii) The Master Servicer has the full corporate power and authority to service each Mortgage Loan, execute and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary corporate action on under the part of the Master Servicer Servicing Agreement and to perform its obligations in accordance herewith and therewith; the execution, delivery and performance of this Agreement; Agreement and under the Servicing Agreement (including all instruments of transfer to be delivered pursuant to this Agreement, assuming the due authorization, execution and delivery thereof ) by the other parties heretoMaster Servicer and the consummation of the transactions contemplated hereby and thereby have been duly and validly authorized by all necessary action; this Agreement and under the Servicing Agreement evidences the valid, constitutes a legal, valid binding and binding enforceable obligation of the Master Servicer; and all requisite action has been taken by the Master Servicer to make this Agreement valid, binding and enforceable against upon the Master Servicer in accordance with its terms, except subject to and under the extent that (a) Servicing Agreement the enforceability thereof may be limited by effect of bankruptcy, insolvency, moratoriumreorganization, receivership moratorium and other other, similar laws relating to creditors’ or affecting creditor's rights generally and or the application of equitable principles in any proceeding, whether at law or in equity.
(b) All actions, approvals, consents, waivers, exemptions, variances, franchises, orders, permits authorizations, rights and licenses required to be taken, given or obtained, as the remedy of specific performance case may be, by or from any federal, state or other governmental authority or agency, that are necessary in connection with the purchase and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion sale of the court before which any proceeding therefor may be brought;
(iii) The Notes and the execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunderof the documents to which it is a party, have been duly taken, given or obtained, as the case may be, are in full force and effect, are not subject to any pending proceedings or appeals (administrative, judicial or otherwise) and either the time within which any appeal therefrom may be taken or review thereof may be obtained has expired or no review thereof may be obtained or appeal therefrom taken, and are adequate to authorize the consummation of any other of the transactions herein contemplated, contemplated by this Agreement and the fulfillment of or compliance with other documents on the terms hereof are in the ordinary course of business part of the Master Servicer and the performance by the Master Servicer of its obligations as Master Servicer under this Agreement and such other documents to which it is a party.
(c) The consummation of the transaction contemplated by this Agreement and the Servicing Agreement will not (A) result in a the breach of any term terms or provision provisions of the charter certificate of incorporation or by-laws of the Master Servicer or (B) conflict with, result in a breach, violation the breach of any term or acceleration provision of, or conflict with or constitute a default under or result in a default the acceleration for any obligation under, the terms of any material agreement, indenture or loan or credit agreement or other material agreement or instrument to which the Master Servicer or to its property is a party or by which it may be boundsubject, or result in the violation of any statutelaw, order rule, regulation, order, judgment or regulation applicable decree to which the Master Servicer of or its property is subject;
(d) Neither this Agreement nor any court, regulatory body, administrative agency report or governmental body having jurisdiction over other document prepared by the Master ServicerServicer and furnished or to be furnished pursuant to this Agreement or in connection with the transactions contemplated hereby contains any untrue statement of material fact; and the Master Servicer statements set forth in the Prospectus Supplement under the caption "MASTER SERVICER" do not contain an untrue statement of a material fact and do not omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(e) There is not a party tono action, bound bysuit, proceeding 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 body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects investigation pending or, to the Master Servicer’s knowledge, would in the future materially and adversely affect, (x) the ability best of the Master Servicer's knowledge, threatened against the Master Servicer to perform its obligations under this Agreement which, either in any one instance or (y) in the aggregate, may result in any material adverse change in the business, operations, financial condition, properties or assets of the Master Servicer or in any material impairment of the right or ability of the Master Servicer to carry on its business substantially as now conducted, or in any material liability on the part of the Master Servicer or which would draw into question the validity of this Agreement, the Servicing Agreement or the Home Loans or of any action taken as a whole;or to be taken in connection with the obligations of the Master Servicer contemplated herein, or which would be likely to impair the ability of the Master Servicer to perform under the terms of this Agreement or the Servicing Agreement.
(ivf) The Master Servicer is an approved seller/servicer for Fxxxxx Mxx not in default with respect to any order or Fxxxxxx Mac in good standing and is a HUD approved mortgagee pursuant to Section 203 decree of the National Housing Act;
(v) No litigation is pending against the Master Servicer any court or any order, regulation or demand of any federal, state, municipal or governmental agency, which default might have consequences that would materially and adversely affect the execution, delivery condition (financial or enforceability of this Agreement other) or the ability operations of the Master Servicer to service or its properties or might have consequences that would adversely affect its performance hereunder or under the Mortgage Loans or to perform any of its other obligations hereunder in accordance with the terms hereof;
(vi) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the consummation of the transactions contemplated by this Servicing Agreement, except for such consents, approvals, authorizations or orders, if any, that have been obtained prior to the Closing Date;
(vii) The Master Servicer covenants that its computer and other systems used in servicing the Mortgage Loans operate in a manner such that the Master Servicer can service the Mortgage Loans in accordance with the terms of this Agreement; and
(viii) The Master Servicer (or a Sub-Servicer servicing the Mortgage Loans on its behalf) is a member of MERS in good standing, and will comply in all material respects with the rules and procedures of MERS in connection with the servicing of the Mortgage Loans that are registered with MERS. It is understood and agreed that the representations, warranties and covenants set forth in this Section 2.05 3.03 shall survive delivery of the Mortgage respective Indenture Trustee's Home Loan Files to the Indenture Trustee or to a Custodian on its behalf and shall inure to the benefit of the Depositor, the Noteholders, the Owner Trustee, the Trust AdministratorSecurities Insurer, the Depositor and the CertificateholdersIndenture Trustee. Upon discovery by any of the Transferor, the Depositor, the Master ServicerIndenture Trustee, the Trust Administrator Securities Insurer or the Owner Trustee of a breach of any of the foregoing representations, warranties and covenants which that materially and adversely affects the value of any Mortgage Home Loan or the interests therein of the Certificateholderssuch Person therein, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the Trustee. Subject to Section 7.01, the obligation of the Master Servicer set forth in Section 2.03(c) to cure breaches shall constitute the sole remedies against the Master Servicer available to the Certificateholders, the Depositor, the Trust Administrator or the Trustee on behalf of the Certificateholders respecting a breach of the representations, warranties and covenants contained in this Section 2.05other parties.
Appears in 1 contract
Samples: Sale and Master Servicing Agreement (Painewebber Mort Acce Corp Iv Fremont Home Ln Own Tr 1999-2)
Representations, Warranties and Covenants of the Master Servicer. The Master Servicer hereby represents, warrants and covenants to the Trust Administrator and the Trustee, for the benefit of each of the TrusteeTrust Administrator, the Trust AdministratorTrustee, the Certificateholders and to the Depositor that as of the Closing Date or as of such date specifically provided herein:
(i) The Master Servicer is a corporation national banking association duly organized, validly existing and in good standing under the laws of the State of New York and is duly authorized and qualified to transact any and all business contemplated by this Agreement to be conducted by the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to service the Mortgage Loans in accordance with the terms of this Agreement;
(ii) The Master Servicer has the full corporate power and authority to service each Mortgage Loan, and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary corporate action on the part of the Master Servicer the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties heretoDepositor, the Trust Administrator and the Trustee, constitutes a legal, valid and binding obligation of the Master Servicer, enforceable against the Master Servicer in accordance with its terms, except to the extent that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ ' rights generally and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought;
(iii) The execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunder, the consummation of any other of the transactions herein contemplated, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Master Servicer and will shall not (A) result in a breach of any term or provision of the charter or by-laws organizational documents of the Master Servicer or (B) conflict with, result in a breach, violation or acceleration of, or result in a default under, the terms of any other material agreement or instrument to which the Master Servicer is a party or by which it may be bound, or any statute, order or regulation applicable to the Master Servicer of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Master Servicer; and the Master Servicer 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 body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects or, to the Master Servicer’s 's knowledge, would in the future materially and adversely affect, (x) the ability of the Master Servicer to perform its obligations under this Agreement or (y) the business, operations, financial condition, properties or assets of the Master Servicer taken as a whole;
(iv) The Master Servicer is an approved seller/servicer for Fxxxxx Mxx Xxxxxx Xxx or Fxxxxxx Xxxxxxx Mac in good standing and is a HUD approved mortgagee pursuant to Section 203 and Section 211 of the National Housing Act;
(v) No litigation is pending against the Master Servicer that would materially and adversely affect the execution, delivery or enforceability of this Agreement or the ability of the Master Servicer to service the Mortgage Loans or to perform any of its other obligations hereunder in accordance with the terms hereof;; and
(vi) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the consummation of the transactions contemplated by this Agreement, except for such consents, approvals, authorizations or orders, if any, that have been obtained prior to the Closing Date;
(vii) The Master Servicer covenants that its computer and other systems used in servicing the Mortgage Loans operate in a manner such that the Master Servicer can service the Mortgage Loans in accordance with the terms of this Agreement; and
(viii) The Master Servicer (or a Sub-Servicer servicing the Mortgage Loans on its behalf) is a member of MERS in good standing, and will comply in all material respects with the rules and procedures of MERS in connection with the servicing of the Mortgage Loans that are registered with MERS. It is understood and agreed that the representations, warranties and covenants set forth in this Section 2.05 shall survive delivery of the Mortgage Files to the Trustee or to a Custodian on its behalf Custodian, as the case may be, and shall inure to the benefit of the TrusteeTrust Administrator, the Trust AdministratorTrustee, the Depositor and the Certificateholders. Upon discovery by any of the Depositor, the NIMS Insurer, the Master Servicer, the Trust Administrator or the Trustee of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any Mortgage Loan or the interests therein of the Certificateholders, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the NIMS Insurer, the Trust Administrator and the Trustee. Subject to Section 7.01, the obligation of the Master Servicer set forth in Section 2.03(c2.03(b) to cure breaches shall constitute the sole remedies against the Master Servicer available to the Certificateholders, the Depositor, the Trust Administrator Administator or the Trustee on behalf of the Certificateholders respecting a breach of the representations, warranties and covenants contained in this Section 2.05.
Appears in 1 contract
Representations, Warranties and Covenants of the Master Servicer. The Master Servicer hereby represents, warrants and covenants to the Trust Administrator and the Trustee, for the benefit of each of the Trustee, the Trust Administrator, the Certificateholders and to the Depositor that as of the Closing Date or as of such date specifically provided herein:
(i) The Master Servicer is a corporation duly organized, validly existing and in good standing under the laws of the State of New York Delaware and is duly authorized and qualified to transact any and all business contemplated by this Agreement to be conducted by the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to service the Mortgage Loans in accordance with the terms of this Agreement;
(ii) The Master Servicer has the full corporate power and authority to service each Mortgage Loan, and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary corporate action on the part of the Master Servicer the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties hereto, constitutes a legal, valid and binding obligation of the Master Servicer, enforceable against the Master Servicer in accordance with its terms, except to the extent that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ ' rights generally and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought;
(iii) The execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunder, the consummation of any other of the transactions herein contemplated, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Master Servicer and will not (A) result in a breach of any term or provision of the charter or by-laws of the Master Servicer or (B) conflict with, result in a breach, violation or acceleration of, or result in a default under, the terms of any other material agreement or instrument to which the Master Servicer is a party or by which it may be bound, or any statute, order or regulation applicable to the Master Servicer of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Master Servicer; and the Master Servicer 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 body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects or, to the Master Servicer’s 's knowledge, would in the future materially and adversely affect, (x) the ability of the Master Servicer to perform its obligations under this Agreement or (y) the business, operations, financial condition, properties or assets of the Master Servicer taken as a whole;
(iv) The Master Servicer is an approved seller/servicer for Fxxxxx Mxx Fannie Mae or Fxxxxxx Mac in good standing Fredxxx Xxc xx goox xxxxxing and is a HUD approved mortgagee pursuant to Section 203 of the National Housing Act;
(v) No litigation is pending against the Master Servicer that would materially and adversely affect the execution, delivery or enforceability of this Agreement or the ability of the Master Servicer to service the Mortgage Loans or to perform any of its other obligations hereunder in accordance with the terms hereof;
(vi) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the consummation of the transactions contemplated by this Agreement, except for such consents, approvals, authorizations or orders, if any, that have been obtained prior to the Closing Date;; and
(vii) The Master Servicer covenants that its computer and other systems used in servicing the Mortgage Loans operate in a manner such that the Master Servicer can service the Mortgage Loans in accordance with the terms of this Agreement; and
(viii) The Master Servicer (or a Sub-Servicer servicing the Mortgage Loans on its behalf) is a member of MERS in good standing, and will comply in all material respects with the rules and procedures of MERS in connection with the servicing of the Mortgage Loans that are registered with MERS. It is understood and agreed that the representations, warranties and covenants set forth in this Section 2.05 shall survive delivery of the Mortgage Files to the Trustee or to a Custodian on its behalf and shall inure to the benefit of the Trustee, the Trust Administrator, the Depositor and the Certificateholders. Upon discovery by any of the Depositor, the Master Servicer, the Trust Administrator or the Trustee of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any Mortgage Loan or the interests therein of the Certificateholders, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the Trustee. Subject to Section 7.01, the obligation of the Master Servicer set forth in Section 2.03(c) to cure breaches shall constitute the sole remedies against the Master Servicer available to the Certificateholders, the Depositor, the Trust Administrator or the Trustee on behalf of the Certificateholders respecting a breach of the representations, warranties and covenants contained in this Section 2.05.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Salomon Bros Mort Sec Vii Inc Salo Mort Ln Tr Ser 2001-Cpb1)
Representations, Warranties and Covenants of the Master Servicer. The Master Servicer hereby represents, warrants and covenants to the Trust Administrator and the Trustee, for the benefit of each of the Trustee, the Trust Administrator, the Certificateholders and to the Depositor that as of the Closing Date or as of such date specifically provided herein:
(i) The Master Servicer is a corporation duly organized, validly existing and in good standing under the laws of the State of New York Delaware and is duly authorized and qualified to transact any and all business contemplated by this Agreement to be conducted by the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to service the Mortgage Loans in accordance with the terms of this Agreement;
(ii) The Master Servicer has the full corporate power and authority to service each Mortgage Loan, and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary corporate action on the part of the Master Servicer the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties heretoDepositor and the Trustee, constitutes a legal, valid and binding obligation of the Master Servicer, enforceable against the Master Servicer in accordance with its terms, except to the extent that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ ' rights generally and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought;
(iii) The execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunder, the consummation of any other of the transactions herein contemplated, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Master Servicer and will not (A) result in a breach of any term or provision of the charter or by-laws of the Master Servicer or (B) conflict with, result in a breach, violation or acceleration of, or result in a default under, the terms of any other material agreement or instrument to which the Master Servicer is a party or by which it may be bound, or any statute, order or regulation applicable to the Master Servicer of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Master Servicer; and the Master Servicer 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 body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects or, to the Master Servicer’s 's knowledge, would in the future materially and adversely affect, (x) the ability of the Master Servicer to perform its obligations under this Agreement or (y) the business, operations, financial condition, properties or assets of the Master Servicer taken as a whole;
(iv) The Master Servicer is an approved seller/servicer for Fxxxxx Mxx Fannie Mae or Fxxxxxx Freddie Mac in good standing and is a HUD approved mortgagee pursuant approvex xxxxgagee puxxxxxx to Section 203 and Section 211 of the National Housing Act;
(v) No Except as disclosed in the Prospectus Supplement, no litigation is pending against the Master Servicer that would materially and adversely affect the execution, delivery or enforceability of this Agreement or the ability of the Master Servicer to service the Mortgage Loans or to perform any of its other obligations hereunder in accordance with the terms hereof;
(vi) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the consummation of the transactions contemplated by this Agreement, except for such consents, approvals, authorizations or orders, if any, that have been obtained prior to the Closing Date;
(vii) The Master Servicer covenants that its computer and other systems used in servicing the Mortgage Loans operate in a manner such that the Master Servicer can service the Mortgage Loans in accordance with the terms of this Agreement; and
(viii) The Master Servicer (or a Sub-Servicer servicing the Mortgage Loans on its behalf) is a member of MERS in good standing, and will comply in all material respects with the rules and procedures of MERS in connection with the servicing of the Mortgage Loans that are registered with MERS. It is understood and agreed that the representations, warranties and covenants set forth in this Section 2.05 shall survive delivery of the Mortgage Files to the Trustee or to a Custodian on its behalf and shall inure to the benefit of the Trustee, the Trust Administrator, the Depositor and the Certificateholders. Upon discovery by any of the Depositor, the Master Servicer, the Trust Administrator or the Trustee of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any Mortgage Loan or the interests therein of the Certificateholders, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the Trustee. Subject to Section 7.01, the obligation of the Master Servicer set forth in Section 2.03(c) to cure breaches shall constitute the sole remedies against the Master Servicer available to the Certificateholders, the Depositor, the Trust Administrator or the Trustee on behalf of the Certificateholders respecting a breach of the representations, warranties and covenants contained in this Section 2.05.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Ameriquest Mortgage Securities Inc)
Representations, Warranties and Covenants of the Master Servicer. The Master Servicer hereby represents, warrants and covenants to the Trust Administrator Trustee and the TrusteeGuarantor, for the benefit of each of the Trustee, the Trust Administrator, Guarantor and the Certificateholders and to the Depositor that as of the Closing Date or as of such date specifically provided herein:
(i) The Master Servicer is a corporation duly organized, validly existing existing, and in good standing under the laws of the State jurisdiction of New York its formation and has all licenses necessary to carry on its business as now being conducted and is duly authorized licensed, qualified and qualified in good standing in the states where the Mortgaged Property is located if the laws of such state require licensing or qualification in order to transact any and all conduct business contemplated by this Agreement to be of the type conducted by the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent necessary to ensure its ability to enforce the enforceability or validity of each Mortgage Loan Loan; the Master Servicer has the power and authority to execute and deliver this Agreement and to service perform in accordance herewith; the Mortgage Loans execution, delivery and performance of this Agreement (including all instruments of transfer to be delivered pursuant to this Agreement) by the Master Servicer and the consummation of the transactions contemplated hereby have been duly and validly authorized; this Agreement evidences the valid, binding and enforceable obligation of the Master Servicer, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally; and all requisite corporate action has been taken by the Master Servicer to make this Agreement valid and binding upon the Master Servicer in accordance with its terms;
(ii) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Master Servicer and will not result in the breach of any term or provision of the charter or by-laws of the Master Servicer or result in the breach of any term or provision of, or conflict with or constitute a default under or result in the acceleration of any obligation under, any agreement, indenture or loan or credit agreement or other instrument to which the Master Servicer or its property is subject, or result in the violation of any law, rule, regulation, order, judgment or decree to which the Master Servicer or its property is subject;
(iii) The execution and delivery of this Agreement by the Master Servicer and the performance and compliance with its obligations and covenants hereunder do not require the consent or approval of any governmental authority or, if such consent or approval is required, it has been obtained;
(iv) This Agreement, and all documents and instruments contemplated hereby which are executed and delivered by the Master Servicer, constitute and will constitute valid, legal and binding obligations of the Master Servicer, enforceable in accordance with their respective terms, except as the enforcement thereof may be limited by applicable bankruptcy laws and general principles of equity;
(v) [Reserved]
(vi) The Master Servicer does not believe, nor does it have any reason or cause to believe, that it cannot perform each and every covenant contained in this Agreement;
(vii) There is no action, suit, proceeding or investigation pending or, to its knowledge, threatened against the Master Servicer that, either individually or in the aggregate, (A) may result in any change in the business, operations, financial condition, properties or assets of the Master Servicer that might prohibit or materially and adversely affect the performance by such Master Servicer of its obligations under, or validity or enforceability of, this Agreement, or (B)may result in any material impairment of the right or ability of the Master Servicer to carry on its business substantially as now conducted, or (C) may result in any material liability on the part of the Master Servicer, or (D) would draw into question the validity or enforceability of this Agreement or of any action taken or to be taken in connection with the obligations of the Master Servicer contemplated herein, or (E) would otherwise be likely to impair materially the ability of the Master Servicer to perform under the terms of this Agreement;
(iiviii) The Neither this Agreement nor any information, certificate of an officer, statement furnished in writing or report delivered to the Trustee or the Guarantor by the Master Servicer in connection with the transactions contemplated hereby contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein, in light of the circumstances under which they were made, not misleading (except to the extent that any such information, statement or report has been corrected or superseded in writing by the Master Servicer as of the Closing Date, it being understood (i) that the Master Servicer has delivered no certificate of an officer prior to the full corporate power Closing Date and authority (ii) that any representations, warranties and indemnifications as to service each the accuracy and completeness of the Information Circular or the Prospectus Supplement made by Option One Mortgage Loan, Corporation in agreements and to execute, deliver and perform, and to enter into and consummate Officers' Certificates delivered by Option One Mortgage Corporation on the Closing Date in connection with the transactions contemplated by this Agreement shall be interpreted such that the information in the Information Circular and has duly authorized the Prospectus Supplement is deemed to correct and/or supersede as of the Closing Date, within the meaning of this parenthetical, any information, statement or report delivered by all necessary corporate action on the part of the Master Servicer to the executionTrustee or the Guarantor prior to the Closing Date that is inconsistent with the information in the Information Circular or the Prospectus Supplement or that was omitted from such information, delivery statement or report delivered prior to the Closing Date);
(ix) The information set forth in the Prepayment Charge Schedule (including the Prepayment Charge Summary attached thereto) is complete, true and performance of this Agreement; correct in all material respects on the date or dates when such information is furnished and this Agreement, assuming the due authorization, execution each Prepayment Charge is permissible and delivery thereof by the other parties hereto, constitutes a legal, valid and binding obligation of the Master Servicer, enforceable against the Master Servicer in accordance with its terms, terms (except to the extent that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ affecting creditor's rights generally and (b) or the remedy of specific performance and injunctive and other forms of equitable relief collectibility thereof may be subject limited due to the equitable defenses and to the discretion of the court before which any proceeding therefor may be broughtacceleration in connection with a foreclosure) under applicable state law;
(iii) The execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunder, the consummation of any other of the transactions herein contemplated, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Master Servicer and will not (A) result in a breach of any term or provision of the charter or by-laws of the Master Servicer or (B) conflict with, result in a breach, violation or acceleration of, or result in a default under, the terms of any other material agreement or instrument to which the Master Servicer is a party or by which it may be bound, or any statute, order or regulation applicable to the Master Servicer of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Master Servicer; and the Master Servicer 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 body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects or, to the Master Servicer’s knowledge, would in the future materially and adversely affect, (x) the ability of the Master Servicer to perform its obligations under this Agreement or (y) the business, operations, financial condition, properties or assets of the Master Servicer taken as a whole;
(iv) The Master Servicer will not waive any Prepayment Charge unless it is an approved seller/servicer for Fxxxxx Mxx or Fxxxxxx Mac in good standing and is a HUD approved mortgagee pursuant to Section 203 of the National Housing Act;
(v) No litigation is pending against the Master Servicer that would materially and adversely affect the execution, delivery or enforceability of this Agreement or the ability of the Master Servicer to service the Mortgage Loans or to perform any of its other obligations hereunder waived in accordance with the terms hereof;standard set forth in Section 3.01; and
(vi) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the consummation of the transactions contemplated by this Agreement, except for such consents, approvals, authorizations or orders, if any, that have been obtained prior to the Closing Date;
(viixi) The Master Servicer covenants that its computer and other systems used in servicing the Mortgage Loans operate in a manner such that the Master Servicer can service the Mortgage Loans has fully furnished, in accordance with the terms of this Agreement; and
Fair Credit Reporting Act and its implementing regulations, accurate and complete information (viiie.g., favorable and unfavorable) The Master Servicer (or a Sub-Servicer servicing the Mortgage Loans on its behalfborrower credit files to Equifax, Experian and Trans Union Credit Information Company or their successors (the "Credit Repositories") is on a member of MERS in good standing, and will comply in all material respects with the rules and procedures of MERS in connection with the servicing of the Mortgage Loans that are registered with MERSmonthly basis. It is understood and agreed that the representations, warranties and covenants set forth in this Section 2.05 shall survive delivery of the Mortgage Files to the Trustee or to a Custodian on its behalf and shall inure to the benefit of the Trustee, the Trust AdministratorDepositor, the Depositor Guarantor and the Certificateholders. Upon discovery by any of the Depositor, the Guarantor, the NIMS Insurer, the Master Servicer, the Trust Administrator Originator or the Trustee of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any Mortgage Loan Loan, Prepayment Charge or the interests therein of the CertificateholdersCertificateholders or the Guarantor, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the Master Servicer, the Originator, the Guarantor, the NIMS Insurer and the Trustee. Subject to Section 7.01Notwithstanding the foregoing, within 90 days of the obligation earlier of discovery by the Master Servicer or receipt of notice by the Master Servicer of the breach of the representation or covenant of the Master Servicer set forth in Section 2.03(cSections 2.05(ix) to cure breaches shall constitute or 2.05(x) above which materially and adversely affects the sole remedies against interests of the Holders of the Class P Certificates in any Prepayment Charge, the Master Servicer shall remedy such breach as follows: (a) if the representation made by the Master Servicer in Section 2.05(ix) above is breached and a Principal Prepayment has occurred in the applicable Prepayment Period or if a change of law subsequent to the Closing Date limits the enforceability of a Prepayment Charge (other than in the circumstances provided in Section 2.05(ix) above), the Master Servicer must pay the amount of the scheduled Prepayment Charge, for the benefit of the Holders of the Class P Certificates, by depositing such amount into the Collection Account, net of any amount previously collected by the Master Servicer and paid by the Master Servicer, for the benefit of the Holders of the Class P Certificates, in respect of such Prepayment Charge; and (b) if any of the covenants made by the Master Servicer in Section 2.05(x) above is breached, the Master Servicer must pay the amount of such waived Prepayment Charge, for the benefit of the Holders of the Class P Certificates, by depositing such amount into the Collection Account. The foregoing shall not, however, limit any remedies available to the Certificateholders, the DepositorGuarantor, the Trust Administrator Depositor or the Trustee on behalf of the Certificateholders Certificateholders, pursuant to the Mortgage Loan Purchase Agreements, respecting a breach of the representations, warranties and covenants of the Originator contained in this Section 2.05the Mortgage Loan Purchase Agreements.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Option One Mortgage Loan Tr Asset Backed Cert Ser 2002-5)
Representations, Warranties and Covenants of the Master Servicer. The Master Servicer hereby represents, warrants and covenants to the Trust Administrator and the Trustee, for the benefit of each of the Trustee, the Trust Administrator, the Certificateholders and to the Depositor that as of the Closing Date or as of such date specifically provided herein:
(i) The Master Servicer is a corporation duly organized, validly existing and in good standing under the laws of the State of New York Florida and is duly authorized and qualified (or a Sub-Servicer on behalf of the Master Servicer is duly authorized and qualified) to transact any and all business contemplated by this Agreement to be conducted by the Master Servicer in any state in which a Mortgaged Property is located or is (or such Sub-Servicer is) otherwise not required under applicable law to effect such qualification and, in any event, is (or such Sub-Servicer is) in compliance with the doing business laws of any such State, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to service the Mortgage Loans in accordance with the terms of this Agreement;
(ii) The Master Servicer has the full corporate power and authority to service each Mortgage Loan, and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary corporate action on the part of the Master Servicer the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties hereto, constitutes a legal, valid and binding obligation of the Master Servicer, enforceable against the Master Servicer in accordance with its terms, except to the extent that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ ' rights generally and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought;
(iii) The execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunder, the consummation of any other of the transactions herein contemplated, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Master Servicer and will not (A) result in a breach of any term or provision of the charter or by-laws of the Master Servicer or (B) conflict with, result in a breach, violation or acceleration of, or result in a default under, the terms of any other material agreement or instrument to which the Master Servicer is a party or by which it may be bound, or any statute, order or regulation applicable to the Master Servicer of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Master Servicer; and the Master Servicer 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 body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects or, to the Master Servicer’s 's knowledge, would in the future materially and adversely affect, (x) the ability of the Master Servicer to perform its obligations under this Agreement or (y) the business, operations, financial condition, properties or assets of the Master Servicer taken as a whole;
(iv) The Master Servicer is an approved seller/servicer for Fxxxxx Mxx or Fxxxxxx Mac in good standing and is a HUD approved mortgagee pursuant to Section 203 of the National Housing Act;
(v) No litigation is pending against the Master Servicer that would materially and adversely affect the execution, delivery or enforceability of this Agreement or the ability of the Master Servicer to service the Mortgage Loans or to perform any of its other obligations hereunder in accordance with the terms hereof;
(viv) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the consummation of the transactions contemplated by this Agreement, except for such consents, approvals, authorizations or orders, if any, that have been obtained prior to the Closing Date;; and
(viivi) The Master Servicer covenants that its computer and other systems used in servicing the Mortgage Loans operate in a manner such that the Master Servicer can service the Mortgage Loans in accordance with the terms of this Agreement; and
(viii) The Master Servicer (or a Sub-Servicer servicing the Mortgage Loans on its behalf) is a member of MERS in good standing, and will comply in all material respects with the rules and procedures of MERS in connection with the servicing of the Mortgage Loans that are registered with MERS. It is understood and agreed that the representations, warranties and covenants set forth in this Section 2.05 shall survive delivery of the Mortgage Files to the Trustee or to a Custodian on its behalf and shall inure to the benefit of the Trustee, the Trust Administrator, the Depositor and the Certificateholders. Upon discovery by any of the Depositor, the Master Servicer, the Trust Administrator or the Trustee of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any Mortgage Loan or the interests therein of the Certificateholders, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the TrusteeTrustee and the Trust Administrator. Subject to Section 7.01, the obligation of the Master Servicer set forth in Section 2.03(c) to cure breaches shall constitute the sole remedies against the Master Servicer available to the Certificateholders, the Depositor, the Trust Administrator or the Trustee on behalf of the Certificateholders respecting a breach of the representations, warranties and covenants contained in this Section 2.05.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Salomon Mortgage Loan Trust Ser 2002-Ust1 Mort Pass-THR Cert)
Representations, Warranties and Covenants of the Master Servicer. The Master Servicer hereby represents, warrants and covenants to the Trust Administrator and the Trustee, for the benefit of each of the Trustee, the Trust Administrator, the Certificateholders and to the Depositor that as of the Closing Date or as of such date specifically provided herein:
(i) The Master Servicer is a corporation limited partnership duly organized, validly existing and in good standing under the laws of the State of New York Texas and is duly authorized and qualified to transact any and all business contemplated by this Agreement to be conducted by the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to service the Mortgage Loans in accordance with the terms of this Agreement;
(ii) The Master Servicer has the full corporate power and authority to service each Mortgage Loan, and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary corporate action on the part of the Master Servicer the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties heretoDepositor and the Trustee, constitutes a legal, valid and binding obligation of the Master Servicer, enforceable against the Master Servicer in accordance with its terms, except to the extent that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ rights generally and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought;
(iii) The execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunder, the consummation of any other of the transactions herein contemplated, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Master Servicer and will shall not (A) result in a breach of any term or provision of the charter or by-laws organizational documents of the Master Servicer or (B) conflict with, result in a breach, violation or acceleration of, or result in a default under, the terms of any other material agreement or instrument to which the Master Servicer is a party or by which it may be bound, or any statute, order or regulation applicable to the Master Servicer of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Master Servicer; and the Master Servicer 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 body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects or, to the Master Servicer’s knowledge, would in the future materially and adversely affect, (x) the ability of the Master Servicer to perform its obligations under this Agreement or (y) the business, operations, financial condition, properties or assets of the Master Servicer taken as a whole;
(iv) The Master Servicer is an approved seller/servicer for Fxxxxx Mxx Xxxxxx Xxx or Fxxxxxx Xxxxxxx Mac in good standing and is a HUD approved mortgagee pursuant to Section 203 and Section 211 of the National Housing Act;
(v) No litigation is pending against the Master Servicer that would materially and adversely affect the execution, delivery or enforceability of this Agreement or the ability of the Master Servicer to service the Mortgage Loans or to perform any of its other obligations hereunder in accordance with the terms hereof;
(vi) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the consummation of the transactions contemplated by this Agreement, except for such consents, approvals, authorizations or orders, if any, that have been obtained prior to the Closing Date;
(vii) The Master Servicer covenants that its computer and other systems used in servicing the Mortgage Loans operate in a manner such that the Master Servicer can service the Mortgage Loans shall furnish, in accordance with the terms of this Agreement; andFair Credit Reporting Act and its implementing regulations, accurate and complete information (e.g., favorable and unfavorable) on its borrower credit files to Equifax, Experian and Trans Union Credit Information company or their successors on a monthly basis;
(viii) The Master Servicer shall not waive any Prepayment Charge or part of a Prepayment Charge unless, (i) the enforceability thereof shall have been limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ rights generally or (ii) the collectability thereof shall have been limited due to acceleration in connection with a foreclosure or other involuntary payment or otherwise limited or prohibited by applicable law or (iii) in the Master Servicer’s reasonable judgment as described in Section 3.01 hereof, (x) such waiver relates to a default or a Sub-Servicer reasonably foreseeable default, (y) such waiver would maximize recovery of total proceeds taking into account the value of such Prepayment Charge and related Mortgage Loan and (z) doing so is standard and customary in servicing the similar Mortgage Loans on (including any waiver of a Prepayment Charge in connection with a refinancing of a Mortgage Loan that is related to a default or a reasonably foreseeable default). In no event shall the Master Servicer waive a Prepayment Charge in connection with a refinancing of a Mortgage Loan that is not related to a default or a reasonably foreseeable default;
(ix) The information set forth in the monthly tape provided to the Trustee or any of its behalf) Affiliates is a member of MERS in good standing, true and will comply correct in all material respects with the rules respects; and
(x) The Master Servicer shall transmit full-file credit reporting data for each Mortgage Loan pursuant to Xxxxxx Mae Guide Announcement 95-19 and procedures of MERS in connection with the servicing that for each Mortgage Loan, Master Servicer agrees it shall report one of the Mortgage Loans that are registered with MERSfollowing statuses each month as follows: new origination, current, delinquent (30-, 60-, 90-days, etc.), foreclosed, or charged-off. It is understood and agreed that the representations, warranties and covenants set forth in this Section 2.05 shall survive delivery of the Mortgage Files to the Trustee or to a Custodian on its behalf the Custodian, as the case may be, and shall inure to the benefit of the Trustee, the Trust Administrator, the Depositor and the Certificateholders. Upon discovery by any of the Depositor, the Master ServicerNIMS Insurer, the Trust Administrator Master Servicer or the Trustee of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any Mortgage Loan Loan, Prepayment Charge or the interests therein of the Certificateholders, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the NIMS Insurer and the Trustee. Subject to Section 7.01, the obligation of the Master Servicer set forth in Section 2.03(c2.03(b) to cure breaches (or in the case of the representations, warranties and covenants set forth in Section 2.05(viii) above, to otherwise remedy such breaches pursuant to Section 2.03(b)) shall constitute the sole remedies against the Master Servicer available to the Certificateholders, the Depositor, the Trust Administrator Depositor or the Trustee on behalf of the Certificateholders respecting a breach of the representations, warranties and covenants contained in this Section 2.05.
Appears in 1 contract
Representations, Warranties and Covenants of the Master Servicer. The Master Servicer hereby represents, warrants makes the following representations and covenants warranties to the Trust Depositor, the Securities Administrator and the Trustee, for the benefit of each of the Trustee, the Trust Administrator, the Certificateholders and to the Depositor that as of the Closing Date or as of such date specifically provided hereinDate:
(i) The Master Servicer is a corporation national banking association duly organized, chartered and validly existing and in good standing under the laws of the State United States of New York America and is duly authorized and qualified to transact any and has all business contemplated by this Agreement to be conducted by the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent licenses necessary to ensure carry on its ability to enforce each Mortgage Loan and to service the Mortgage Loans in accordance with the terms of this Agreement;
(ii) business as now being conducted. The Master Servicer has the full corporate power and authority to service each Mortgage Loan, execute and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary corporate action on the part of the Master Servicer to perform in accordance herewith; the execution, delivery and performance of this Agreement (including all instruments of transfer to be delivered pursuant to this Agreement; ) by the Master Servicer and this the consummation of the transactions contemplated hereby have been duly and validly authorized. This Agreement, assuming the due authorization, execution and delivery thereof by the other parties hereto, constitutes a legalevidences the valid, valid binding and binding enforceable obligation of the Master Servicer, enforceable against subject to applicable law except as enforceability may be limited by (A) bankruptcy, insolvency, liquidation, receivership, moratorium, reorganization or other similar laws affecting the enforcement of the rights of creditors and (B) general principles of equity, whether enforcement is sought in a proceeding in equity or at law. All requisite corporate action has been taken by the Master Servicer to make this Agreement valid and binding upon the Master Servicer in accordance with its terms.
(ii) No consent, except approval, authorization or order is required for the transactions contemplated by this Agreement from any court, governmental agency or body, or federal or state regulatory authority having jurisdiction over the Master Servicer is required or, if required, such consent, approval, authorization or order has been or will, prior to the extent that (a) the enforceability thereof may Closing Date, be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ rights generally and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought;obtained.
(iii) The execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunder, the consummation of any other of the transactions herein contemplated, and the fulfillment of or compliance with the terms hereof contemplated by this Agreement are in the ordinary course of business of the Master Servicer and will not (A) result in a the breach of any term or provision of the charter or by-laws of the Master Servicer or (B) conflict with, result in a breach, violation the breach of any term or acceleration provision of, or conflict with or constitute a default under or result in a default the acceleration of any obligation under, the terms of any other material agreement, indenture or loan or credit agreement or other instrument to which the Master Servicer or its property is a party or by which it may be boundsubject, or result in the violation of any statutelaw, order rule, regulation, order, judgment or regulation applicable decree to which the Master Servicer of any courtor its property is subject.
(iv) There is no action, regulatory bodysuit, administrative agency proceeding or governmental body having jurisdiction over the Master Servicer; and the Master Servicer 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 body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects investigation pending or, to the Master Servicer’s knowledge, would in the future materially and adversely affect, (x) the ability best knowledge of the Master Servicer, threatened against the Master Servicer to perform its obligations under this Agreement which, either individually or (y) in the aggregate, would result in any material adverse change in the business, operations, financial condition, properties or assets of the Master Servicer taken as a whole;
(iv) The Master Servicer is an approved seller/servicer for Fxxxxx Mxx Servicer, or Fxxxxxx Mac in good standing and is a HUD approved mortgagee pursuant to Section 203 any material impairment of the National Housing Act;
(v) No litigation is pending against right or ability of the Master Servicer that to carry on its business substantially as now conducted or which would materially and adversely affect draw into question the execution, delivery or enforceability validity of this Agreement or the Mortgage Loans or of any action taken or to be taken in connection with the obligations of the Master Servicer contemplated herein, or which would materially impair the ability of the Master Servicer to service the Mortgage Loans or to perform any of its other obligations hereunder in accordance with the terms hereof;
(vi) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the consummation of the transactions contemplated by this Agreement, except for such consents, approvals, authorizations or orders, if any, that have been obtained prior to the Closing Date;
(vii) The Master Servicer covenants that its computer and other systems used in servicing the Mortgage Loans operate in a manner such that the Master Servicer can service the Mortgage Loans in accordance with under the terms of this Agreement; and
(viii) . The Master Servicer (or a Sub-Servicer servicing the Mortgage Loans on its behalf) is a member of MERS in good standing, representations and will comply in all material respects with the rules and procedures of MERS in connection with the servicing of the Mortgage Loans that are registered with MERS. It is understood and agreed that the representations, warranties and covenants set forth in made pursuant to this Section 2.05 2.03 shall survive delivery of the respective Mortgage Files to the Trustee or to a the Custodian on its behalf and shall inure to for the benefit of the Trustee, the Trust Administrator, the Depositor and the Certificateholders. Upon discovery by any of the Depositor, the Master Servicer, the Trust Administrator or the Trustee of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any Mortgage Loan or the interests therein of the Certificateholders, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the Trustee. Subject to Section 7.01, the obligation of the Master Servicer set forth in Section 2.03(c) to cure breaches shall constitute the sole remedies against the Master Servicer available to the Certificateholders, the Depositor, the Trust Administrator or the Trustee on behalf of the Certificateholders respecting a breach of the representations, warranties and covenants contained in this Section 2.05.
Appears in 1 contract
Representations, Warranties and Covenants of the Master Servicer. The Master Servicer hereby represents, warrants and covenants to the Trust Administrator and the Trustee, for the benefit of each of the Trustee, the Trust Administrator, the Certificateholders and to the Depositor that as of the Closing Date or as of such date specifically provided herein:
(i) The Master Servicer is a corporation duly organized, validly existing and in good standing under the laws of the State of New York Delaware and is duly authorized and qualified to transact any and all business contemplated by this Agreement to be conducted by the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent necessary to ensure its ability to enforce each Mortgage Loan and to service the Mortgage Loans in accordance with the terms of this Agreement;
(ii) The Master Servicer has the full corporate power and authority to service each Mortgage Loan, and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary corporate action on the part of the Master Servicer the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties heretoDepositor and the Trustee, constitutes a legal, valid and binding obligation of the Master Servicer, enforceable against the Master Servicer in accordance with its terms, except to the extent that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ ' rights generally and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought;
(iii) The execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunder, the consummation of any other of the transactions herein contemplated, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Master Servicer and will not (A) result in a breach of any term or provision of the charter or by-laws of the Master Servicer or (B) conflict with, result in a breach, violation or acceleration of, or result in a default under, the terms of any other material agreement or instrument to which the Master Servicer is a party or by which it may be bound, or any statute, order or regulation applicable to the Master Servicer of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Master Servicer; and the Master Servicer 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 body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects or, to the Master Servicer’s 's knowledge, would in the future materially and adversely affect, (x) the ability of the Master Servicer to perform its obligations under this Agreement or (y) the business, operations, financial condition, properties or assets of the Master Servicer taken as a whole;
(iv) The Master Servicer is an approved seller/servicer for Fxxxxx Mxx Fannie Mae or Fxxxxxx Mac in good standing and Freddie Max xx xoxx stanxxxx xxd is a HUD approved mortgagee pursuant to Section 203 and Section 211 of the National Housing Act;
(v) No Except as disclosed in the Prospectus Supplement, no litigation is pending against the Master Servicer that would materially and adversely affect the execution, delivery or enforceability of this Agreement or the ability of the Master Servicer to service the Mortgage Loans or to perform any of its other obligations hereunder in accordance with the terms hereof;
(vi) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the consummation of the transactions contemplated by this Agreement, except for such consents, approvals, authorizations or orders, if any, that have been obtained prior to the Closing Date;
(vii) The Master Servicer covenants that its computer information set forth in the Prepayment Charge Schedule attached hereto as Schedule 2 (including the prepayment charge summary attached thereto) is complete, true and other systems used correct in servicing all material respects at the Mortgage Loans operate in a manner date or dates respecting which such that the Master Servicer can service the Mortgage Loans information is furnished and each Prepayment Charge is permissible and enforceable in accordance with its terms (except to the terms of this Agreement; andextent that (i) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally and (ii) the collectability thereof may be limited due to acceleration in connection with a foreclosure or other involuntary payment;
(viii) The Master Servicer will not waive any Prepayment Charge or part of a Prepayment Charge unless, (i) the enforceability thereof shall have been limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally or a Sub-Servicer servicing (ii) the Mortgage Loans on its behalf) is a member of MERS in good standing, and will comply in all material respects with the rules and procedures of MERS collectability thereof shall have been limited due to acceleration in connection with a foreclosure or other involuntary payment or (iii) in the Master Servicer's reasonable judgment as described in Section 3.01 hereof, (x) such waiver relates to a default or a reasonably foreseeable default, (y) such waiver would maximize recovery of total proceeds taking into account the value of such Prepayment Charge and related Mortgage Loan and (z) doing so is standard and customary in servicing of the similar Mortgage Loans (including any waiver of a Prepayment Charge in connection with a refinancing of a Mortgage Loan that are registered is related to a default or a reasonably foreseeable default). In no event will the Master Servicer waive a Prepayment Charge in connection with MERS. It a refinancing of a Mortgage Loan that is understood and agreed that the representations, warranties and covenants not related to a default or a reasonably foreseeable default;
(ix) The information set forth in this Section 2.05 shall survive delivery of the Mortgage Files "monthly tape" provided to the Trustee or any of its affiliates is true and correct in all material respects;
(x) With respect to a Custodian on its behalf and shall inure to each Mortgage Loan, the benefit Assignment is in recordable form; (except that the name of the Trustee, the Trust Administrator, the Depositor assignee and the Certificateholders. Upon discovery by any of the Depositor, the Master Servicer, the Trust Administrator or the Trustee of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any recording information with respect to such Mortgage Loan or is blank) and each Mortgage Loan was originated in the interests therein of the Certificateholders, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the Trustee. Subject to Section 7.01, the obligation name of the Master Servicer set forth in Section 2.03(c) to cure breaches shall constitute the sole remedies against the Master Servicer available to the Certificateholders, the Depositor, the Trust Administrator or the Trustee on behalf of the Certificateholders respecting a breach of the representations, warranties and covenants contained in this Section 2.05.an affiliate thereof; and
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Ameriquest Mortgage Sec Inc Asset Bk Pas THR Cert Se 2004 R3)
Representations, Warranties and Covenants of the Master Servicer. The Master Servicer hereby represents, warrants and covenants to the Trust Administrator and the Trustee, for the benefit of each of the Trustee, the Trust Administrator, Trustee and the Certificateholders and to the Depositor that as of the Closing Date or as of such date specifically provided herein:
(i) The Master Servicer is a corporation duly organized, validly existing existing, and in good standing under the laws of the State jurisdiction of New York its formation and has all licenses necessary to carry on its business as now being conducted and is duly authorized licensed, qualified and qualified in good standing in the states where the Mortgaged Property is located if the laws of such state require licensing or qualification in order to transact any and all conduct business contemplated by this Agreement to be of the type conducted by the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent necessary to ensure its ability to enforce the enforceability or validity of each Mortgage Loan and to service Loan; the Mortgage Loans in accordance with the terms of this Agreement;
(ii) The Master Servicer has the full corporate power and authority to service each Mortgage Loan, execute and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary corporate action on the part of the Master Servicer to perform in accordance herewith; the execution, delivery and performance of this Agreement; and Agreement (including all instruments of transfer to be delivered pursuant to this Agreement, assuming the due authorization, execution and delivery thereof ) by the other parties heretoMaster Servicer and the consummation of the transactions contemplated hereby have been duly and validly authorized; this Agreement evidences the valid, constitutes a legal, valid binding and binding enforceable obligation of the Master Servicer, enforceable against subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally; and all requisite corporate action has been taken by the Master Servicer to make this Agreement valid and binding upon the Master Servicer in accordance with its terms, except to the extent that (a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ rights generally and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought;
(iiiii) The execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunder, the consummation of any other of the transactions herein contemplated, and the fulfillment of or compliance with the terms hereof contemplated by this Agreement are in the ordinary course of business of the Master Servicer and will not (A) result in a the breach of any term or provision of the charter or by-laws of the Master Servicer or (B) conflict with, result in a breach, violation the breach of any term or acceleration provision of, or conflict with or constitute a default under or result in a default the acceleration of any obligation under, the terms of any other material agreement, indenture or loan or credit agreement or other instrument to which the Master Servicer or its property is a party or by which it may be boundsubject, or result in the violation of any statutelaw, order rule, regulation, order, judgment or regulation applicable decree to which the Master Servicer or its property is subject;
(iii) The execution and delivery of this Agreement by the Master Servicer and the performance and compliance with its obligations and covenants hereunder do not require the consent or approval of any courtgovernmental authority or, regulatory bodyif such consent or approval is required, administrative agency or governmental body having jurisdiction over it has been obtained;
(iv) This Agreement, and all documents and instruments contemplated hereby which are executed and delivered by the Master Servicer; , constitute and will constitute valid, legal and binding obligations of the Master Servicer, enforceable in accordance with their respective terms, except as the enforcement thereof may be limited by applicable bankruptcy laws and general principles of equity;
(v) [Reserved];
(vi) The Master Servicer does not believe, nor does it have any reason or cause to believe, that it cannot perform each and every covenant contained in this Agreement;
(vii) There is no action, suit, proceeding or investigation pending or, to its knowledge, threatened against the Master Servicer is not a party tothat, bound by, either individually 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 body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects or, to the Master Servicer’s knowledge, would in the future materially and adversely affectaggregate, (xA) the ability of the Master Servicer to perform its obligations under this Agreement or (y) may result in any change in the business, operations, financial condition, properties or assets of the Master Servicer taken as a whole;
(iv) The Master Servicer is an approved seller/servicer for Fxxxxx Mxx that might prohibit or Fxxxxxx Mac in good standing and is a HUD approved mortgagee pursuant to Section 203 of the National Housing Act;
(v) No litigation is pending against the Master Servicer that would materially and adversely affect the executionperformance by such Master Servicer of its obligations under, delivery or validity or enforceability of, this Agreement, or (B)may result in any material impairment of the right or ability of the Master Servicer to carry on its business substantially as now conducted, or (C) may result in any material liability on the part of the Master Servicer, or (D) would draw into question the validity or enforceability of this Agreement or of any action taken or to be taken in connection with the obligations of the Master Servicer contemplated herein, or (E) would otherwise be likely to impair materially the ability of the Master Servicer to service the Mortgage Loans or to perform any of its other obligations hereunder in accordance with under the terms hereofof this Agreement;
(viviii) No consentNeither this Agreement nor any information, approvalcertificate of an officer, authorization statement furnished in writing or order of any court or governmental agency or body is required for report delivered to the execution, delivery and performance Trustee by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the consummation of in connection with the transactions contemplated by this Agreement, except for such consents, approvals, authorizations or orders, if any, that have been obtained prior to the Closing Datehereby contains any untrue statement of a material fact;
(viiix) The Master Servicer covenants that its computer and other systems used in servicing the Mortgage Loans operate in a manner such that the Master Servicer can service the Mortgage Loans in accordance with the terms of this Agreement;
(x) The information set forth in the Prepayment Charge Schedule (including the Prepayment Charge Summary attached thereto) is complete, true and correct in all material respects on the date or dates when such information is furnished and each Prepayment Charge is permissible and enforceable in accordance with its terms (except to the extent that the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws affecting creditor's rights generally or the collectibility thereof may be limited due to acceleration in connection with a foreclosure) under applicable state law; and
(viiixi) The Master Servicer (or a Sub-Servicer servicing the Mortgage Loans on its behalf) will not waive any Prepayment Charge unless it is a member of MERS waived in good standing, and will comply in all material respects accordance with the rules and procedures of MERS standard set forth in connection with the servicing of the Mortgage Loans that are registered with MERSSection 3.01. It is understood and agreed that the representations, warranties and covenants set forth in this Section 2.05 shall survive delivery of the Mortgage Files to the Trustee or to a Custodian on its behalf and shall inure to the benefit of the Trustee, the Trust Administrator, the Depositor and the Certificateholders. Upon discovery by any of the Depositor, the Master Servicer, the Trust Administrator Seller or the Trustee of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any Mortgage Loan Loan, Prepayment Charge or the interests therein of the Certificateholders, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the Master Servicer, the Seller and the Trustee. Subject to Section 7.01Notwithstanding the foregoing, within 90 days of the obligation earlier of discovery by the Master Servicer or receipt of notice by the Master Servicer of the breach of the representation or covenant of the Master Servicer set forth in Section 2.03(cSections 2.05(x) to cure breaches shall constitute or 2.05(xi) above which materially and adversely affects the sole remedies against interests of the Holders of the Class P Certificates in any Prepayment Charge, the Master Servicer shall remedy such breach as follows: (a) if the representation made by the Master Servicer in Section 2.05(x) above is breached and a Principal Prepayment has occurred in the applicable Prepayment Period or if a change of law subsequent to the Closing Date limits the enforceability of a Prepayment Charge (other than in the circumstances provided in Section 2.05(x) above), the Master Servicer must pay the amount of the scheduled Prepayment Charge, for the benefit of the Holders of the Class P Certificates, by depositing such amount into the Collection Account, net of any amount previously collected by the Master Servicer and paid by the Master Servicer, for the benefit of the Holders of the Class P Certificates, in respect of such Prepayment Charge; and (b) if any of the covenants made by the Master Servicer in Section 2.05(xi) above is breached, the Master Servicer must pay the amount of such waived Prepayment Charge, for the benefit of the holders of the Class P Certificates, by depositing such amount into the Collection Account. The foregoing shall not, however, limit any remedies available to the Certificateholders, the Depositor, the Trust Administrator Depositor or the Trustee on behalf of the Certificateholders Certificateholders, pursuant to the Mortgage Loan Purchase Agreement signed by the Master Servicer in its capacity as Seller, respecting a breach of the representations, warranties and covenants of the Master Servicer in its capacity as Seller contained in this Section 2.05the Mortgage Loan Purchase Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Option One Mort Accept Corp Asset Backed Cert Ser 2000-2)
Representations, Warranties and Covenants of the Master Servicer. (a) The Master Servicer hereby represents, represents and warrants and covenants to the Trust Administrator Issuer and the Trustee, for the benefit of each the Indenture Trustee, as pledgee of the TrusteeMortgage Loans and the Noteholders, the Trust Administratoras follows, the Certificateholders and to the Depositor that as of the Closing Date or as of such date specifically provided hereinhereof with respect to the Mortgage Loans:
(i) The Master Servicer is duly organized as a corporation duly organized, Texas limited partnership and is validly existing and in good standing under the laws of the State of New York Texas and is duly authorized and qualified to transact any and all business contemplated by this Agreement to be conducted by the Master Servicer in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such Statestate, to the extent necessary to ensure its ability to enforce each Mortgage Loan and Loan, to service the Mortgage Loans in accordance with the terms of this Agreement;Agreement and to perform any of its other obligations under this Agreement in accordance with the terms hereof.
(ii) The Master Servicer has the full corporate partnership power and authority to sell and service each Mortgage Loan, and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary corporate action on the part of the Master Servicer the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery thereof hereof by the other parties hereto, constitutes a legal, valid and binding obligation of the Master Servicer, enforceable against the Master Servicer in accordance with its terms, except to the extent that (a) the enforceability thereof hereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ rights generally and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought;.
(iii) The execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunderunder this Agreement, the consummation of any other of the transactions herein contemplatedcontemplated by this Agreement, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Master Servicer and will not (A) result in a material breach of any term or provision of the charter certificate of limited partnership, partnership agreement or by-laws other organizational document of the Master Servicer or (B) materially conflict with, result in a material breach, violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Master Servicer 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 Master Servicer of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Master Servicer; and the Master Servicer is not a party to, bound by, or in breach or violation of any material indenture or other material agreement or instrument, or subject to or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it, it which breach or violation may materially and adversely affects or, to impair the Master Servicer’s knowledge, would in the future materially and adversely affect, (x) the ability of the Master Servicer to perform or meet any of its obligations under this Agreement or (y) the business, operations, financial condition, properties or assets of the Master Servicer taken as a whole;Agreement.
(iv) The Master Servicer is an approved seller/servicer of conventional mortgage loans for Fxxxxx Mxx or Fxxxxxx Mac in good standing and is a HUD mortgagee approved mortgagee by the Secretary of Housing and Urban Development pursuant to Section sections 203 and 211 of the National Housing Act;.
(v) No litigation is pending or, to the best of the Master Servicer’s knowledge, threatened, against the Master Servicer that would materially and adversely affect the execution, delivery or enforceability of this Agreement or the ability of the Master Servicer to service the Mortgage Loans or to perform any of its other obligations hereunder under this Agreement in accordance with the terms hereof;.
(vi) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the consummation of the transactions contemplated by this Agreementhereby, except for or if any such consentsconsent, approvalsapproval, authorizations authorization or ordersorder is required, if any, that have been the Master Servicer has obtained prior to the Closing Date;same.
(vii) The Master Servicer covenants that its computer and other systems used in servicing the Mortgage Loans operate in a manner such that the Master Servicer can service the Mortgage Loans in accordance with the terms of this Agreement; and
(viii) The Master Servicer (or a Sub-Servicer servicing the Mortgage Loans on its behalf) is a member of MERS in good standing, and will comply in all material respects with the rules and procedures of MERS in connection with the servicing of the Mortgage Loans that for as long as such Mortgage Loans are registered with MERS. It is understood .
(viii) The foregoing representations and agreed that the representations, warranties and covenants set forth in this Section 2.05 shall survive delivery of the Mortgage Files to the Trustee or to a Custodian on its behalf and shall inure to the benefit of the Trustee, the Trust Administrator, the Depositor and the Certificateholders. Upon discovery by any of the Depositor, the Master Servicer, the Trust Administrator or the Trustee of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any Mortgage Loan or the interests therein of the Certificateholders, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the Trustee. Subject to Section 7.01, the obligation termination of the Master Servicer set forth in Section 2.03(c) to cure breaches shall constitute the sole remedies against the Master Servicer available to the Certificateholders, the Depositor, the Trust Administrator or the Trustee on behalf of the Certificateholders respecting a breach of the representations, warranties and covenants contained in this Section 2.05hereunder.
Appears in 1 contract
Samples: Servicing Agreement (Encore Credit Receivables Trust 2005-2)
Representations, Warranties and Covenants of the Master Servicer. The Master Servicer hereby represents, warrants makes the following representations and covenants warranties to the Trust Depositor, the Securities Administrator and the Trustee, for the benefit of each of the Trustee, the Trust Administrator, the Certificateholders and to the Depositor that as of the Closing Date or as of such date specifically provided hereinDate:
(i) The Master Servicer is a corporation national banking association duly organized, chartered and validly existing and in good standing under the laws of the State United States of New York America and has all licenses necessary to carry on its business as now being conducted and is duly authorized licensed, qualified and qualified to transact any and all business contemplated by this Agreement to be conducted by in good standing in each of the Master Servicer in any state in which states where a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with if the doing business laws of any such State, state require licensing or qualification in order to conduct business of the extent necessary to ensure its ability to enforce each Mortgage Loan and to service type conducted by the Mortgage Loans in accordance with the terms of this Agreement;
(ii) Master Servicer. The Master Servicer has the full corporate power and authority to service each Mortgage Loan, execute and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary corporate action on the part of the Master Servicer to perform in accordance herewith; the execution, delivery and performance of this Agreement (including all instruments of transfer to be delivered pursuant to this Agreement; ) by the Master Servicer and this the consummation of the transactions contemplated hereby have been duly and validly authorized. This Agreement, assuming the due authorization, execution and delivery thereof by the other parties hereto, constitutes a legalevidences the valid, valid binding and binding enforceable obligation of the Master Servicer, enforceable against subject to applicable law except as enforceability may be limited by (A) bankruptcy, insolvency, liquidation, receivership, moratorium, reorganization or other similar laws affecting the enforcement of the rights of creditors and (B) general principles of equity, whether enforcement is sought in a proceeding in equity or at law. All requisite corporate action has been taken by the Master Servicer to make this Agreement valid and binding upon the Master Servicer in accordance with its terms.
(ii) No consent, except approval, authorization or order is required for the transactions contemplated by this Agreement from any court, governmental agency or body, or federal or state regulatory authority having jurisdiction over the Master Servicer is required or, if required, such consent, approval, authorization or order has been or will, prior to the extent that (a) the enforceability thereof may Closing Date, be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ rights generally and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought;obtained.
(iii) The execution and delivery of this Agreement by the Master Servicer, the servicing of the Mortgage Loans by the Master Servicer hereunder, the consummation of any other of the transactions herein contemplated, and the fulfillment of or compliance with the terms hereof contemplated by this Agreement are in the ordinary course of business of the Master Servicer and will not (A) result in a the breach of any term or provision of the charter articles of incorporation or by-laws of the Master Servicer or (B) conflict with, result in a breach, violation the breach of any term or acceleration provision of, or conflict with or constitute a default under or result in a default the acceleration of any obligation under, the terms of any other material agreement, indenture or loan or credit agreement or other instrument to which the Master Servicer or its property is a party or by which it may be boundsubject, or result in the violation of any statutelaw, order rule, regulation, order, judgment or regulation applicable decree to which the Master Servicer of any courtor its property is subject.
(iv) There is no action, regulatory bodysuit, administrative agency proceeding or governmental body having jurisdiction over the Master Servicer; and the Master Servicer 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 body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects investigation pending or, to the Master Servicer’s knowledge, would in the future materially and adversely affect, (x) the ability best knowledge of the Master Servicer, threatened against the Master Servicer to perform its obligations under this Agreement which, either individually or (y) in the aggregate, would result in any material adverse change in the business, operations, financial condition, properties or assets of the Master Servicer taken as a whole;
(iv) The Master Servicer is an approved seller/servicer for Fxxxxx Mxx Servicer, or Fxxxxxx Mac in good standing and is a HUD approved mortgagee pursuant to Section 203 any material impairment of the National Housing Act;
(v) No litigation is pending against right or ability of the Master Servicer that to carry on its business substantially as now conducted or which would materially and adversely affect draw into question the execution, delivery or enforceability validity of this Agreement or the Mortgage Loans or of any action taken or to be taken in connection with the obligations of the Master Servicer contemplated herein, or which would materially impair the ability of the Master Servicer to service the Mortgage Loans or to perform any of its other obligations hereunder in accordance with the terms hereof;
(vi) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the consummation of the transactions contemplated by this Agreement, except for such consents, approvals, authorizations or orders, if any, that have been obtained prior to the Closing Date;
(vii) The Master Servicer covenants that its computer and other systems used in servicing the Mortgage Loans operate in a manner such that the Master Servicer can service the Mortgage Loans in accordance with under the terms of this Agreement; and
(viii) . The Master Servicer (or a Sub-Servicer servicing the Mortgage Loans on its behalf) is a member of MERS in good standing, representations and will comply in all material respects with the rules and procedures of MERS in connection with the servicing of the Mortgage Loans that are registered with MERS. It is understood and agreed that the representations, warranties and covenants set forth in made pursuant to this Section 2.05 2.03 shall survive delivery of the respective Mortgage Files to the Trustee or to a Custodian on its behalf and shall inure to for the benefit of the Trustee, the Trust Administrator, the Depositor and the Certificateholders. Upon discovery by any of the Depositor, the Master Servicer, the Trust Administrator or the Trustee of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any Mortgage Loan or the interests therein of the Certificateholders, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the Trustee. Subject to Section 7.01, the obligation of the Master Servicer set forth in Section 2.03(c) to cure breaches shall constitute the sole remedies against the Master Servicer available to the Certificateholders, the Depositor, the Trust Administrator or the Trustee on behalf of the Certificateholders respecting a breach of the representations, warranties and covenants contained in this Section 2.05.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Banc of American Funding Corp Mort Pass Thru Cert Ser 2003-2)
