Representations, Warranties and Covenants of the Seller. The Seller hereby represents and warrants to the Purchaser, as of the date hereof and as of the Closing Date, and covenants, that: (i) The Seller is a Delaware corporation with full corporate power and authority to conduct its business as presently conducted by it to the extent material to the consummation of the transactions contemplated herein. The Agreement has been duly authorized, executed and delivered by the Seller. The Seller had the full corporate power and authority to own the Mortgage Loans and to transfer and convey the Mortgage Loans to the Purchaser and has the full corporate power and authority to execute and deliver, engage in the transactions contemplated by, and perform and observe the terms and conditions of this Agreement; (ii) The Seller has duly authorized the execution, delivery and performance of this Agreement, has duly executed and delivered this Agreement, and this Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a legal, valid and binding obligation of the Seller, enforceable against it in accordance with its terms except as the enforceability thereof may be limited by bankruptcy, insolvency or reorganization or by general principles of equity; (iii) The execution, delivery and performance of this Agreement by the Seller (x) does not conflict and will not conflict with, does not breach and will not result in a breach of and does not constitute and will not constitute a default (or an event, which with notice or lapse of time or both, would constitute a default) under (A) any terms or provisions of the organizational documents of the Seller, (B) any term or provision of any material agreement, contract, instrument or indenture, to which the Seller is a party or by which the Seller or any of its property is bound, or (C) any law, rule, regulation, order, judgment, writ, injunction or decree of any court or governmental authority having jurisdiction over the Seller or any of its property and (y) does not create or impose and will not result in the creation or imposition of any lien, charge or encumbrance (other than any created hereby in favor of the Purchaser and its assignees) which would have a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loans; (iv) No consent, approval, authorization or order of, registration or filing with, or notice on behalf of the Seller to any governmental authority or court is required, under federal laws or the laws of the State of New York, for the execution, delivery and performance by the Seller of, or compliance by the Seller with, this Agreement or the consummation by the Seller of any other transaction contemplated hereby and by the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificates; (v) The Seller is not in violation of, and the execution and delivery of this Agreement by the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over the Seller or its assets, which violation might have consequences that would materially and adversely affect the condition (financial or otherwise) or the operation of the Seller or its assets or might have consequences that would materially and adversely affect the performance of its obligations and duties hereunder; (vi) The Seller 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) Immediately prior to the sale of the Mortgage Loans to the Purchaser as herein contemplated, the Seller was the owner of the related Mortgage and the indebtedness evidenced by the related Mortgage Note, and, upon the payment to the Seller of the Purchase Price, in the event that the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereof; (viii) There are no actions or proceedings against, or investigations known to it of, the Seller before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans by the Seller or the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by the Seller of its obligations under, or validity or enforceability of, this Agreement; (ix) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with; (x) The Seller has not dealt with any broker, investment banker, agent or other person, except for the Purchaser or any of its affiliates, that may be entitled to any commission or compensation in connection with the sale of the Mortgage Loans (except that an entity that previously financed the Seller’s ownership of the Mortgage Loans may be entitled to a fee to release its security interest in the Mortgage Loans, which fee shall have been paid and which security interest shall have been released on or prior to the Closing Date); (xi) There is no litigation currently pending or, to the best of the Seller’s knowledge without independent investigation, threatened against the Seller that would reasonably be expected to adversely affect the transfer of the Mortgage Loans, the issuance of the Certificates or the execution, delivery, performance or enforceability of this Agreement, or that would result in a material adverse change in the financial condition of the Seller; and (xii) The information set forth in the applicable part of the Closing Schedule relating to the existence of a Prepayment Charge 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 upon the mortgagor’s full and voluntary principal prepayment under applicable law, 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; (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 under applicable law.
Appears in 26 contracts
Samples: Pooling and Servicing Agreement (ACE Securities Corp. Home Equity Loan Trust, Series 2006-Cw1), Pooling and Servicing Agreement (ACE Securities Corp. Home Equity Loan Trust, Series 2006-Asap4), Pooling and Servicing Agreement (ACE Securities Corp. Home Equity Loan Trust, Series 2007-He1)
Representations, Warranties and Covenants of the Seller. The Seller hereby represents and warrants to the Purchaser, as of the date hereof and as of the Closing Date, and covenants, that:
(i) The Seller is a corporation organized under the laws of the state of Delaware corporation with full corporate power and authority to conduct its business as presently conducted by it to the extent material to the consummation of the transactions contemplated herein. The Agreement has been duly authorized, executed and delivered by the Seller. The Seller had the full corporate power and authority to own the Mortgage Loans and to transfer and convey the Mortgage Loans to the Purchaser and has the full corporate power and authority to execute and deliver, deliver and engage in the transactions contemplated by, and perform and observe the terms and conditions of of, this Agreement;
(ii) The Seller has duly authorized the execution, delivery and performance of this Agreement, has duly executed and delivered this Agreement, and this Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a legal, valid and binding obligation of the Seller, enforceable against it in accordance with its terms except as the enforceability thereof may be limited by bankruptcy, insolvency or reorganization or by general principles of equity;
(iii) The execution, delivery and performance of this Agreement by the Seller (x) does not conflict and will not conflict with, does not breach and will not result in a breach of and does not constitute and will not constitute a default (or an event, which with notice or lapse of time or both, would constitute a default) under (A) any terms or provisions of the organizational documents articles of incorporation or by-laws of the Seller, (B) any term or provision of any material agreement, contract, instrument or indenture, to which the Seller is a party or by which the Seller or any of its property is bound, or (C) any law, rule, regulation, order, judgment, writ, injunction or decree of any court or governmental authority having jurisdiction over the Seller or any of its property and (y) does not create or impose and will not result in the creation or imposition of any lien, charge or encumbrance (other than any created hereby in favor of the Purchaser and its assignees) which would have a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loans;
(iv) No consent, approval, authorization or order of, registration or filing with, or notice on behalf of the Seller to any governmental authority or court is required, under federal laws or the laws of the State of New York, for the execution, delivery and performance by the Seller of, or compliance by the Seller with, this Agreement or the consummation by the Seller of any other transaction contemplated hereby and by the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificates;
(v) The Seller is not in violation of, and the execution and delivery of this Agreement by the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over the Seller or its assets, which violation might have consequences that would materially and adversely affect the condition (financial or otherwise) or the operation of the Seller or its assets or might have consequences that would materially and adversely affect the performance of its obligations and duties hereunder;
(vi) The Seller 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) Immediately prior to the sale of the Mortgage Loans to the Purchaser as herein contemplated, the Seller was the owner of the related Mortgage and the indebtedness evidenced by the related Mortgage Note, and, upon the payment to the Seller of the Purchase Price, in the event that the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereof;
(viiivii) There are no actions or proceedings against, or investigations known to it of, the Seller before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans by the Seller or the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by the Seller of its obligations under, or validity or enforceability of, this Agreement;
(ixviii) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;
(x) The Seller has not dealt with any broker, investment banker, agent or other person, except for the Purchaser or any of its affiliates, that may be entitled to any commission or compensation in connection with the sale of the Mortgage Loans (except that an entity that previously financed the Seller’s ownership of the Mortgage Loans may be entitled to a fee to release its security interest in the Mortgage Loans, which fee shall have been paid and which security interest shall have been released on or prior to the Closing Date);
(xiix) There is no litigation currently pending or, to the best of the Seller’s knowledge without independent investigation, threatened against the Seller that would reasonably be expected to adversely affect the transfer of the Mortgage Loans, the issuance of the Certificates or the execution, delivery, performance or enforceability of this Agreement, or that would result in a material adverse change in the financial condition of the Seller; and
(xiix) The information set forth in the applicable part of the Closing Schedule relating to the existence of a Prepayment Charge 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 upon the mortgagor’s full and voluntary principal prepayment under applicable law, 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; (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 under applicable law.
Appears in 23 contracts
Samples: Mortgage Loan Purchase Agreement (Deutsche Alt-B Securities Mortgage Loan Trust, Series 2006-Ab3), Mortgage Loan Purchase Agreement (Deutsche Alt-a Securities Mortgage Loan Trust, Series 2007-Ar1), Mortgage Loan Purchase Agreement (Deutsche Alt-B Securities, Inc. Mortgage Loan Trust, Series 2006-Ab2)
Representations, Warranties and Covenants of the Seller. The Seller hereby represents and warrants and covenants to the Purchaser, as of the date hereof and as of the Closing Date, and covenants, that:
(i) The Seller is a Delaware corporation with full corporate power federal savings association duly organized, validly existing and authority in good standing under the laws of the United States of America and is duly authorized and qualified to conduct its transact any and all business as presently contemplated by this Agreement to be conducted by it the Seller in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such state, to the extent material necessary to ensure its ability to enforce each Mortgage Loan and to service the consummation Mortgage Loans in accordance with the terms of the transactions contemplated herein. The Agreement has been duly authorized, executed Pooling and delivered by the Seller. Servicing Agreement;
(ii) The Seller had the full corporate power and authority to own the originate, hold and sell each Mortgage Loans and to transfer and convey the Mortgage Loans to the Purchaser Loan and has the full corporate power and authority to execute service each Mortgage Loan, and deliverto execute, engage in deliver and perform, and to enter into and consummate the transactions contemplated by, by this Agreement and perform and observe the terms and conditions of this Agreement;
(ii) The Seller has duly authorized by all necessary corporate action on the part of the Seller the execution, delivery and performance of this Agreement, has duly executed and delivered this Agreement, ; and this Agreement, assuming the due authorization, execution and delivery thereof by the Purchaser, constitutes a legal, valid and binding obligation of the Seller, enforceable against it the Seller in accordance with its terms terms, except as to the extent that the enforceability thereof may be limited by (a) bankruptcy, insolvency or reorganization or by insolvency, moratorium, receivership, conservatorship, arrangement, moratorium and other similar laws relating to creditors’ rights generally and (b) the general principles of equity, whether such enforcement is sought in equity or at law;
(iii) The execution, execution and delivery and performance of this Agreement by the Seller, the servicing of the Mortgage Loans by the Seller (x) under the Pooling and Servicing Agreement, 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 Seller and does not conflict and will not conflict with, does not breach and will not (A) result in a breach of and does not constitute and will not constitute a default (any term or an event, which with notice or lapse of time or both, would constitute a default) under (A) any terms or provisions provision of the organizational documents charter or by-laws of the Seller, (B) any term conflict with, result in a breach, violation or provision acceleration of, or result in a default under, the terms of any other material agreement, contract, instrument or indenture, indenture to which the Seller is a party or by which the Seller or any of its property is it may be bound, or (C) any lawstatute, rule, regulation, order, judgment, writ, injunction order or decree regulation applicable to the Seller of any court court, regulatory body, administrative agency or governmental authority body having jurisdiction over the Seller or any of its property and or (yC) does not create or impose and will not result in the creation or imposition of any lien, charge or encumbrance (other than any created hereby in favor of the Purchaser and its assignees) which would have a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loans; and the Seller 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 Seller’s knowledge, would in the future result in the creation or imposition of any lien, charge or encumbrance which would have a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loans or materially and adversely affect (x) the ability of the Seller to perform its obligations under this Agreement or the Pooling and Servicing Agreement or (y) the business, operations, financial condition, properties or assets of the Seller taken as a whole;
(iv) No consent, approval, authorization authorization, or order of, registration any court or filing with, governmental agency or notice on behalf of the Seller to any governmental authority or court body is required, under federal laws or the laws of the State of New York, required for the execution, delivery and performance by the Seller of, or compliance by the Seller with, this Agreement or the consummation by of the transactions contemplated hereby, or if any such consent, approval, authorization or order is required, the Seller of any other transaction contemplated hereby and by has obtained the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificatessame;
(v) The Seller is not an approved seller/servicer for Xxxxxx Xxx or Xxxxxxx Mac in violation ofgood standing and is a HUD approved mortgagee pursuant to Section 203 and Section 211 of the National Housing Act;
(vi) No litigation or proceeding is pending or, and to the execution and delivery best knowledge of this Agreement by the Seller, threatened, against the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over the Seller or its assets, which violation might have consequences that would materially and adversely affect the condition (financial execution, delivery or otherwise) enforceability of this Agreement or the operation Pooling and Servicing Agreement or the issuance of the Certificates or the ability of the Seller to service the Mortgage Loans or to perform any of its assets or might have consequences other obligations hereunder in accordance with the terms hereof and the terms of the Pooling and Servicing Agreement or, that would materially and adversely affect result in a material adverse change in the performance financial or operating conditions of its obligations and duties hereunder;
(vi) The Seller does not believe, nor does it have any reason or cause to believe, that it cannot perform each and every covenant contained in this Agreementthe Seller;
(vii) Immediately prior No certificate of an officer, statement or other information furnished in writing or report delivered by the Seller to the sale Purchaser, any Affiliate of the Purchaser or the Trustee for use in connection with the purchase of the Mortgage Loans to the Purchaser as herein contemplated, the Seller was the owner of the related Mortgage and the indebtedness evidenced by transactions contemplated hereunder and under the related Mortgage NotePooling and Servicing Agreement contains any untrue statement of a material fact, andor omits a material fact necessary to make the information, upon the payment to the Seller of the Purchase Pricecertificate, statement or report not misleading in the event that the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereofany material respect;
(viii) There are no actions or proceedings against, or investigations known to it of, the Seller before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans by the Seller or the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by the Seller of its obligations under, or validity or enforceability of, this Agreement;
(ix) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;
(x) The Seller has not dealt with any broker, investment banker, agent or other person, except for the Purchaser or any of its affiliates, that may be entitled to any commission or compensation in connection with the sale of the Mortgage Loans (except that an entity that previously financed the Seller’s ownership of the Mortgage Loans may be entitled to a fee to release its security interest in the Mortgage Loans, which fee shall have been paid and which security interest shall have been released on or prior to the Closing Date);
(xiix) There is no litigation currently pending orEach Mortgage Note, each Mortgage, each Assignment and any other document required to be delivered by or on behalf of the Seller under this Agreement or the Pooling and Servicing Agreement to the best Purchaser or any assignee, transferee or designee of the Seller’s knowledge without independent investigationPurchaser for each Mortgage Loan has been or will be, threatened against in accordance with Section 4(b) hereof, delivered to the Purchaser or any such assignee, transferee or designee. With respect to each Mortgage Loan, the Seller is in possession of a complete Mortgage File in compliance with the Pooling and Servicing Agreement, except for such documents that would reasonably be expected have been delivered (1) to adversely affect the Purchaser or any assignee, transferee or designee of the Purchaser or (2) for recording to the appropriate public recording office and have not yet been returned;
(x) The Seller (A) is a solvent entity and is paying its debts as they become due, (B) immediately after giving effect to the transfer of the Mortgage Loans, will be a solvent entity and will have sufficient resources to pay its debts as they become due and (C) did not sell the issuance Mortgage Loans to the Purchaser with the intent to hinder, delay or defraud any of the Certificates or the execution, delivery, performance or enforceability of this Agreement, or that would result in a material adverse change in the financial condition of the Sellerits creditors; and
(xiixi) The information set forth in the applicable part transfer of the Closing Schedule relating Mortgage Loans to the existence of a Prepayment Charge is complete, true and correct in all material respects Purchaser at the date or dates respecting which such information is furnished Closing Date will be treated by the Seller for financial accounting and each Prepayment Charge is permissible and enforceable in accordance with its terms upon the mortgagor’s full and voluntary principal prepayment under applicable law, 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; (2) the collectability thereof may be limited due to acceleration in connection with reporting purposes as a foreclosure or other involuntary prepayment; or (3) subsequent changes in applicable law may limit or prohibit enforceability thereof under applicable lawsale of assets.
Appears in 10 contracts
Samples: Mortgage Loan Purchase Agreement (WaMu Asset-Backed Certificates, WaMu Series 2007-He1), Mortgage Loan Purchase Agreement (WaMu Asset-Backed Certificates, WaMu Series 2007-He4), Mortgage Loan Purchase Agreement (WaMu Asset-Backed Certificates, WaMu Series 2007-He3)
Representations, Warranties and Covenants of the Seller. The Seller hereby represents and warrants and covenants to the Purchaser, as of the date hereof and as of the Closing Date, and covenants, that:
(i) The Seller is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware corporation with full corporate power and authority is duly authorized and qualified to conduct its transact any and all business as presently contemplated by this Agreement to be conducted by it the Seller in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such state, to the extent material necessary to ensure its ability to enforce each Mortgage Loan and to service the consummation Mortgage Loans in accordance with the terms of the transactions contemplated herein. The Agreement has been duly authorized, executed Pooling and delivered by the Seller. Servicing Agreement;
(ii) The Seller had the full corporate power and authority to own the originate, hold and sell each Mortgage Loans and to transfer and convey the Mortgage Loans to the Purchaser Loan and has the full corporate power and authority to execute service each Mortgage Loan, and deliverto execute, engage in deliver and perform, and to enter into and consummate the transactions contemplated by, by this Agreement and perform and observe the terms and conditions of this Agreement;
(ii) The Seller has duly authorized by all necessary corporate action on the part of the Seller the execution, delivery and performance of this Agreement, has duly executed and delivered this Agreement, ; and this Agreement, assuming the due authorization, execution and delivery thereof by the Purchaser, constitutes a legal, valid and binding obligation of the Seller, enforceable against it the Seller in accordance with its terms terms, except as to the extent that the enforceability thereof may be limited by (a) bankruptcy, insolvency or reorganization or by insolvency, moratorium, receivership, conservatorship, arrangement, moratorium and other similar laws relating to creditors’ rights generally and (b) the general principles of equity, whether such enforcement is sought in equity or at law;
(iii) The execution, execution and delivery and performance of this Agreement by the Seller, the servicing of the Mortgage Loans by the Seller (x) under the Pooling and Servicing Agreement, 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 Seller and does not conflict and will not conflict with, does not breach and will not (A) result in a breach of and does not constitute and will not constitute a default (any term or an event, which with notice or lapse of time or both, would constitute a default) under (A) any terms or provisions provision of the organizational documents charter or by-laws of the Seller, (B) any term conflict with, result in a breach, violation or provision acceleration of, or result in a default under, the terms of any other material agreement, contract, instrument or indenture, indenture to which the Seller is a party or by which the Seller or any of its property is it may be bound, or (C) any lawstatute, rule, regulation, order, judgment, writ, injunction order or decree regulation applicable to the Seller of any court court, regulatory body, administrative agency or governmental authority body having jurisdiction over the Seller or any of its property and or (yC) does not create or impose and will not result in the creation or imposition of any lien, charge or encumbrance (other than any created hereby in favor of the Purchaser and its assignees) which would have a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loans; and the Seller 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 Seller’s knowledge, would in the future result in the creation or imposition of any lien, charge or encumbrance which would have a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loans or materially and adversely affect (x) the ability of the Seller to perform its obligations under this Agreement or the Pooling and Servicing Agreement or (y) the business, operations, financial condition, properties or assets of the Seller taken as a whole;
(iv) No consent, approval, authorization authorization, or order of, registration any court or filing with, governmental agency or notice on behalf of the Seller to any governmental authority or court body is required, under federal laws or the laws of the State of New York, required for the execution, delivery and performance by the Seller of, or compliance by the Seller with, this Agreement or the consummation by of the transactions contemplated hereby, or if any such consent, approval, authorization or order is required, the Seller of any other transaction contemplated hereby and by has obtained the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificatessame;
(v) The Seller is not an approved seller/servicer for Xxxxxx Xxx or Xxxxxxx Mac in violation ofgood standing and is a HUD approved mortgagee pursuant to Section 203 and Section 211 of the National Housing Act;
(vi) No litigation or proceeding is pending or, and to the execution and delivery best knowledge of this Agreement by the Seller, threatened, against the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over the Seller or its assets, which violation might have consequences that would materially and adversely affect the condition (financial execution, delivery or otherwise) enforceability of this Agreement or the operation Pooling and Servicing Agreement or the issuance of the Certificates or the ability of the Seller to service the Mortgage Loans or to perform any of its assets or might have consequences other obligations hereunder in accordance with the terms hereof and the terms of the Pooling and Servicing Agreement or, that would materially and adversely affect result in a material adverse change in the performance financial or operating conditions of its obligations and duties hereunder;
(vi) The Seller does not believe, nor does it have any reason or cause to believe, that it cannot perform each and every covenant contained in this Agreementthe Seller;
(vii) Immediately prior No certificate of an officer, statement or other information furnished in writing or report delivered by the Seller to the sale Purchaser, any Affiliate of the Purchaser or the Trustee for use in connection with the purchase of the Mortgage Loans to the Purchaser as herein contemplated, the Seller was the owner of the related Mortgage and the indebtedness evidenced by transactions contemplated hereunder and under the related Mortgage NotePooling and Servicing Agreement contains any untrue statement of a material fact, andor omits a material fact necessary to make the information, upon the payment to the Seller of the Purchase Pricecertificate, statement or report not misleading in the event that the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereofany material respect;
(viii) There are no actions or proceedings against, or investigations known to it of, the Seller before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans by the Seller or the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by the Seller of its obligations under, or validity or enforceability of, this Agreement;
(ix) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;
(x) The Seller has not dealt with any broker, investment banker, agent or other person, except for the Purchaser or any of its affiliates, that may be entitled to any commission or compensation in connection with the sale of the Mortgage Loans (except that an entity that previously financed the Seller’s ownership of the Mortgage Loans may be entitled to a fee to release its security interest in the Mortgage Loans, which fee shall have been paid and which security interest shall have been released on or prior to the Closing Date);
(xiix) There is no litigation currently pending orEach Mortgage Note, each Mortgage, each Assignment and any other document required to be delivered by or on behalf of the Seller under this Agreement or the Pooling and Servicing Agreement to the best Purchaser or any assignee, transferee or designee of the Seller’s knowledge without independent investigationPurchaser for each Mortgage Loan has been or will be, threatened against in accordance with Section 4(b) hereof, delivered to the Purchaser or any such assignee, transferee or designee. With respect to each Mortgage Loan, the Seller is in possession of a complete Mortgage File in compliance with the Pooling and Servicing Agreement, except for such documents that would reasonably be expected have been delivered (1) to adversely affect the Purchaser or any assignee, transferee or designee of the Purchaser or (2) for recording to the appropriate public recording office and have not yet been returned;
(x) The Seller (A) is a solvent entity and is paying its debts as they become due, (B) immediately after giving effect to the transfer of the Mortgage Loans, will be a solvent entity and will have sufficient resources to pay its debts as they become due and (C) did not sell the issuance Mortgage Loans to the Purchaser with the intent to hinder, delay or defraud any of the Certificates or the execution, delivery, performance or enforceability of this Agreement, or that would result in a material adverse change in the financial condition of the Sellerits creditors; and
(xiixi) The information set forth in the applicable part transfer of the Closing Schedule relating Mortgage Loans to the existence of a Prepayment Charge is complete, true and correct in all material respects Purchaser at the date or dates respecting which such information is furnished Closing Date will be treated by the Seller for financial accounting and each Prepayment Charge is permissible and enforceable in accordance with its terms upon the mortgagor’s full and voluntary principal prepayment under applicable law, 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; (2) the collectability thereof may be limited due to acceleration in connection with reporting purposes as a foreclosure or other involuntary prepayment; or (3) subsequent changes in applicable law may limit or prohibit enforceability thereof under applicable lawsale of assets.
Appears in 9 contracts
Samples: Pooling and Servicing Agreement (Long Beach Mortgage Loan Trust 2005-Wl3), Mortgage Loan Purchase Agreement (Long Beach Securities Corp), Mortgage Loan Purchase Agreement (Long Beach Mortgage Loan Trust 2006-3)
Representations, Warranties and Covenants of the Seller. The Seller hereby represents and warrants to the Purchaser, as of the date hereof and as of the Closing Date, and covenants, that:
(i) The Seller is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware corporation with full corporate power and authority is duly authorized and qualified to conduct its transact any and all business as presently contemplated by this Agreement to be conducted by it the Seller in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent material necessary to ensure the consummation ability of the transactions contemplated herein. The Agreement has been duly authorized, executed Master Servicer to enforce each Mortgage Loan and delivered by to service the Seller. Mortgage Loans in accordance with the terms of the Pooling and Servicing Agreement;
(ii) The Seller had the full corporate power and authority to own the hold and sell each Mortgage Loans and to transfer and convey the Mortgage Loans to the Purchaser Loan and has the full corporate power and authority to execute service each Mortgage Loan, and deliverto execute, engage in deliver and perform, and to enter into and consummate the transactions contemplated by, by this Agreement and perform and observe the terms and conditions of this Agreement;
(ii) The Seller has duly authorized by all necessary corporate action on the part of the Seller the execution, delivery and performance of this Agreement, has duly executed and delivered this Agreement, ; and this Agreement, assuming the due authorization, execution and delivery thereof by the Purchaser, constitutes a legal, valid and binding obligation of the Seller, enforceable against it the Seller in accordance with its terms terms, except as to the extent that (a) the enforceability thereof may be limited by bankruptcy, insolvency or reorganization or by general principles insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally and (b) the remedy of equityspecific 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, execution and delivery and performance of this Agreement by the Seller, the servicing of the Mortgage Loans by the Seller (x) does not conflict under the Pooling and Servicing Agreement, 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 Seller and will not conflict with, does not breach and will not (A) result in a breach of and does not constitute and will not constitute a default (or an event, which with notice or lapse of time or both, would constitute a default) under (A) any terms or provisions of the organizational documents of the Seller, (B) any term or provision of the charter or by-laws of the Seller 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, contract, agreement or instrument or indenture, to which the Seller is a party or by which the Seller or any of its property is it may be bound, or (C) any lawstatute, rule, regulation, order, judgment, writ, injunction order or decree regulation applicable to the Seller of any court court, regulatory body, administrative agency or governmental authority body having jurisdiction over the Seller; and the Seller 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 Seller's knowledge, would in the future materially and adversely affect, (x) the ability of the Seller to perform its property and obligations under this Agreement or (y) does not create the business, operations, financial condition, properties or impose and will not result in the creation or imposition of any lien, charge or encumbrance (other than any created hereby in favor assets of the Purchaser and its assignees) which would have Seller taken as a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loanswhole;
(iv) No consent, approval, authorization or order of, registration of any court or filing with, governmental agency or notice on behalf of the Seller to any governmental authority or court body is required, under federal laws or the laws of the State of New York, required for the execution, delivery and performance by the Seller of, or compliance by the Seller with, this Agreement or the consummation by of the transactions contemplated hereby, or if any such consent, approval, authorization or order is required, the Seller of any other transaction contemplated hereby and by has obtained the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificatessame;
(v) The Seller is not an approved originator/servicer for Fannie Mae or Freddie Mac in violation ofxxxx xtxxxing xxx xx a HUD approved mortgagee pursuant to Section 203 and Section 211 of the National Housing Act; and
(vi) Except as otherwise disclosed in the Prospectus Supplement, and the execution and delivery of this Agreement by no litigation is pending against the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over the Seller or its assets, which violation might have consequences that would materially and adversely affect the condition (financial or otherwise) or the operation of the Seller or its assets or might have consequences that would materially and adversely affect the performance of its obligations and duties hereunder;
(vi) The Seller 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) Immediately prior to the sale of the Mortgage Loans to the Purchaser as herein contemplated, the Seller was the owner of the related Mortgage and the indebtedness evidenced by the related Mortgage Note, and, upon the payment to the Seller of the Purchase Price, in the event that the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereof;
(viii) There are no actions or proceedings against, or investigations known to it of, the Seller before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans by the Seller or the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by the Seller of its obligations under, or validity or enforceability of, this Agreement;
(ix) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;
(x) The Seller has not dealt with any broker, investment banker, agent or other person, except for the Purchaser or any of its affiliates, that may be entitled to any commission or compensation in connection with the sale of the Mortgage Loans (except that an entity that previously financed the Seller’s ownership of the Mortgage Loans may be entitled to a fee to release its security interest in the Mortgage Loans, which fee shall have been paid and which security interest shall have been released on or prior to the Closing Date);
(xi) There is no litigation currently pending or, to the best of the Seller’s knowledge without independent investigation, threatened against the Seller that would reasonably be expected to adversely affect the transfer of the Mortgage Loans, the issuance of the Certificates or the execution, delivery, performance delivery or enforceability of this Agreement, Agreement or that would result in a material adverse change in the financial condition ability of the Seller; and
(xii) The information set forth in Originator to service the applicable part Mortgage Loans or the Seller to perform any of the Closing Schedule relating to the existence of a Prepayment Charge 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 its other obligations hereunder in accordance with its the terms upon the mortgagor’s full and voluntary principal prepayment under applicable law, 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; (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 under applicable lawhereof.
Appears in 7 contracts
Samples: Pooling and Servicing Agreement (Argent Securities Inc Asset Back Pass THR Certs Ser 2003-W4), Pooling and Servicing Agreement (Argent Securities Inc Assset Back Pass THR Certs Ser 2003-W5), Pooling and Servicing Agreement (Argent Securities Inc Asset Backed Pass Thru Cer Ser 2003-W9)
Representations, Warranties and Covenants of the Seller. The Seller hereby represents and warrants to the Purchaserwarrants, as of the date hereof and as of the Closing Date, and covenants, that:
(i) The Seller is duly organized, validly existing and in good standing as a Delaware corporation under the laws of the State of California with full corporate power and authority to conduct its business as presently conducted by it to the extent material to the consummation of the transactions contemplated herein. The Agreement has been duly authorized, executed and delivered by the Seller. The Seller had the full corporate power and authority to own the Mortgage Loans and to transfer and convey the Mortgage Loans to the Purchaser and has the full corporate power and authority to execute and deliver, engage in the transactions contemplated by, and perform and observe the terms and conditions of this Agreement;.
(ii) The Seller has duly authorized the execution, delivery and performance of this Agreement, has duly executed and delivered this Agreement, and this Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a legal, valid and binding obligation of the Seller, enforceable against it in accordance with its terms except as the enforceability thereof may be limited by bankruptcy, insolvency or reorganization or by general principles of equity;.
(iii) The execution, delivery and performance of this Agreement by the Seller (x) does not conflict and will not conflict with, does not breach and will not result in a breach of and does not constitute and will not constitute a default (or an event, which with notice or lapse of time or both, would constitute a default) under (A) any terms or provisions of the organizational documents articles of incorporation or by-laws of the Seller, (B) any term or provision of any material agreement, contract, instrument or indenture, to which the Seller is a party or by which the Seller or any of its property is bound, or (C) any law, rule, regulation, order, judgment, writ, injunction or decree of any court or governmental authority having jurisdiction over the Seller or any of its property and (y) does not create or impose and will not result in the creation or imposition of any lien, charge or encumbrance (other than any created hereby in favor of the Purchaser and its assignees) which would have a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loans;.
(iv) No consent, approval, authorization or order of, registration or filing with, or notice on behalf of the Seller to any governmental authority or court is required, under federal laws or the laws of the State of New YorkCalifornia, for the execution, delivery and performance by the Seller of, or compliance by the Seller with, this Agreement or the consummation by the Seller of any other transaction contemplated hereby and by the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificates;.
(v) This Agreement does not contain any untrue statement of material fact or omit to state a material fact necessary to make the statements contained herein not misleading. The written statements, reports and other documents prepared and furnished or to be prepared and furnished by the Seller pursuant to this Agreement or in connection with the transactions contemplated hereby taken in the aggregate do not contain any untrue statement of material fact or omit to state a material fact necessary to make the statements contained therein not misleading.
(vi) The Seller is not in violation of, and the execution and delivery of this Agreement by the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over the Seller or its assets, which violation might have consequences that would materially and adversely affect the condition (financial or otherwise) or the operation of the Seller or its assets or might have consequences that would materially and adversely affect the performance of its obligations and duties hereunder;.
(vivii) The Seller 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 Seller unable to comply with HUD eligibility requirements or that would require notification to HUD.
(viii) The Seller 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;.
(viiix) Immediately prior to the sale of the Mortgage Loans to the Purchaser as herein contemplated, the Seller was the owner of the related Mortgage and the indebtedness evidenced by the related Mortgage Note, and, upon the payment to the Seller of the Purchase Price, in the event that the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereof;.
(viiix) There are no actions or proceedings against, or investigations known to it of, the Seller before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans by the Seller or the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by the Seller of its obligations under, or validity or enforceability of, this Agreement;.
(ixxi) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;provisions.
(xxii) [intentionally omitted]
(xiii) The Seller has not dealt with any broker, investment banker, agent or other person, except for the Purchaser or any of its affiliates, that may be entitled to any commission or compensation in connection with the sale of the Mortgage Loans (except that an entity that previously financed the Seller’s 's ownership of the Mortgage Loans may be entitled to a fee to release its security interest in the Mortgage Loans, which fee shall have been paid and which security interest shall have been released on or prior to the Closing Date);.
(xixiv) There is no litigation currently pending or, to the best of the Seller’s 's knowledge without independent investigation, threatened against the Seller that would reasonably be expected to adversely affect the transfer of the Mortgage Loans, the issuance of the Certificates or the execution, delivery, performance or enforceability of this Agreement, or that would result in a material adverse change in the financial condition of the Seller; and
(xii) The information set forth in the applicable part of the Closing Schedule relating to the existence of a Prepayment Charge 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 upon the mortgagor’s full and voluntary principal prepayment under applicable law, 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; (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 under applicable law.
Appears in 7 contracts
Samples: Pooling and Servicing Agreement (Salomon Bros Mort Sec Vii Inc Ast Bk Fl Rte Cer Se 1998 -Nc4), Pooling and Servicing Agreement (New Century Asset Backed Floating Rate Cert Ser 1998-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 Seller. The Seller hereby represents and warrants to the Purchaser, as of the date hereof and as of the Closing Date, and covenants, that:
(i1) The Seller is duly organized, validly existing and in good standing as a Delaware corporation under the laws of the State of California with full corporate power and authority to conduct its business as presently conducted by it to the extent material to the consummation of the transactions contemplated herein. The Agreement Seller has been duly authorized, executed and delivered by the Seller. The Seller had the full corporate power and authority to own the Mortgage Loans and to transfer and convey the Mortgage Loans to the Purchaser and has the full corporate power and authority to execute and deliver, engage in the transactions contemplated by, and perform and observe the terms and conditions of this Agreement;.
(ii2) The Seller has duly authorized the execution, delivery and performance of this Agreement, has duly executed and delivered this Agreement, and this Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a legal, valid and binding obligation of the Seller, enforceable against it in accordance with its terms except as the enforceability thereof may be limited by bankruptcy, insolvency or reorganization or by general principles of equity;.
(iii3) The execution, delivery and performance of this Agreement by the Seller (x) does not conflict and will not conflict with, does not breach and will not result in a breach of and does not constitute and will not constitute a default (or an event, which with notice or lapse of time or both, would constitute a default) under (A) any terms or provisions of the organizational documents articles of incorporation or by-laws of the Seller, (B) any term or provision of any material agreement, contract, instrument or indenture, to which the Seller is a party or by which the Seller or any of its property is bound, bound or (C) any law, rule, regulation, order, judgment, writ, injunction or decree of any court or governmental authority having jurisdiction over the Seller or any of its property and (y) does not create or impose and will not result in the creation or imposition of any lien, charge or encumbrance (other than any created hereby in favor of the Purchaser and its assignees) which would have a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loans;.
(iv4) No consent, approval, authorization or order of, registration or filing with, or notice on behalf of the Seller to any governmental authority or court is required, under federal laws or the laws of the State of New YorkCalifornia, for the execution, delivery and performance by the Seller of, or compliance by the Seller with, this Agreement or the consummation by the Seller of any other transaction contemplated hereby and by the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Notes and Certificates;.
(v5) This Agreement does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained herein not misleading. The written statements, reports and other documents prepared and furnished or to be prepared and furnished by the Seller pursuant to this Agreement or in connection with the transactions contemplated hereby taken in the aggregate do not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein not misleading.
(6) The Seller is not in violation of, and the execution and delivery of this Agreement by the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over the Seller or its assets, which violation might have consequences that would materially and adversely affect the condition (financial or otherwise) or the operation of the Seller or its assets or might have consequences that would materially and adversely affect the performance of its obligations and duties hereunder;.
(vi7) The Seller 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) 8) Immediately prior to the sale of the Mortgage Loans to the Purchaser as herein contemplated, the Seller was will be the owner of the related Mortgage and the indebtedness evidenced by the related Mortgage Note, and, upon the payment to the Seller of the Mortgage Loan Purchase Price, in the event that the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereof;.
(viii9) There are no actions or proceedings against, or investigations known to it of, the Seller before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans by the Seller or the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by the Seller of its obligations under, or validity or enforceability of, this Agreement;.
(ix10) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;provisions.
(x11) The Seller has not dealt with any broker, investment banker, agent or other person, except for the Purchaser or any of its affiliates, that may be entitled to any commission or compensation in connection with the sale of the Mortgage Loans (except that an entity that previously financed the Seller’s ownership of the Mortgage Loans may be entitled to a fee to release its security interest in the Mortgage Loans, which fee shall have been paid and which security interest shall have been released on or prior to the Closing Date);.
(xi12) There is no litigation currently pending or, to the best of the Seller’s knowledge without independent investigation, threatened against the Seller that would reasonably be expected to adversely affect the transfer of the Mortgage Loans, the issuance of the Certificates or the execution, delivery, performance or enforceability of this Agreement, or that would result in a material adverse change in the financial condition of the Seller; and
(xii) The information set forth in the applicable part of the Closing Schedule relating to the existence of a Prepayment Charge 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 upon the mortgagor’s full and voluntary principal prepayment under applicable law, 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; (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 under applicable law.
Appears in 5 contracts
Samples: Pooling and Servicing Agreement (New Century Home Equity Loan Trust Series 2005-A), Pooling and Servicing Agreement (New Century Home Equity Loan Trust Series 2005-A), Pooling and Servicing Agreement (New Century Home Equity Loan Trust, Series 2005-C)
Representations, Warranties and Covenants of the Seller. The Seller hereby represents and warrants and covenants to the Purchaser, as of the date hereof and as of the Closing Date, and covenants, that:
(i) The Seller is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware corporation with full corporate power and authority is duly authorized and qualified to conduct its transact any and all business as presently contemplated by this Agreement to be conducted by it the Seller in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such state, to the extent material necessary to ensure its ability to enforce each Mortgage Loan and to service the consummation Mortgage Loans in accordance with the terms of the transactions contemplated herein. The Agreement has been duly authorized, executed Pooling and delivered by the Seller. Servicing Agreement;
(ii) The Seller had the full corporate power and authority to own the originate, hold and sell each Mortgage Loans and to transfer and convey the Mortgage Loans to the Purchaser Loan and has the full corporate power and authority to execute service each Mortgage Loan, and deliverto execute, engage in deliver and perform, and to enter into and consummate the transactions contemplated by, by this Agreement and perform and observe the terms and conditions of this Agreement;
(ii) The Seller has duly authorized by all necessary corporate action on the part of the Seller the execution, delivery and performance of this Agreement, has duly executed and delivered this Agreement, ; and this Agreement, assuming the due authorization, execution and delivery thereof by the Purchaser, constitutes a legal, valid and binding obligation of the Seller, enforceable against it the Seller in accordance with its terms terms, except as to the extent that the enforceability thereof may be limited by (a) bankruptcy, insolvency or reorganization or by insolvency, moratorium, receivership, conservatorship, arrangement, moratorium and other similar laws relating to creditors' rights generally and (b) the general principles of equity, whether such enforcement is sought in equity or at law;
(iii) The execution, execution and delivery and performance of this Agreement by the Seller, the servicing of the Mortgage Loans by the Seller (x) under the Pooling and Servicing Agreement, 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 Seller and does not conflict and will not conflict with, does not breach and will not (A) result in a breach of and does not constitute and will not constitute a default (any term or an event, which with notice or lapse of time or both, would constitute a default) under (A) any terms or provisions provision of the organizational documents charter or by-laws of the Seller, (B) any term conflict with, result in a breach, violation or provision acceleration of, or result in a default under, the terms of any other material agreement, contract, instrument or indenture, indenture to which the Seller is a party or by which the Seller or any of its property is it may be bound, or (C) any lawstatute, rule, regulation, order, judgment, writ, injunction order or decree regulation applicable to the Seller of any court court, regulatory body, administrative agency or governmental authority body having jurisdiction over the Seller or any of its property and or (yC) does not create or impose and will not result in the creation or imposition of any lien, charge or encumbrance (other than any created hereby in favor of the Purchaser and its assignees) which would have a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loans; and the Seller 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 Seller's knowledge, would in the future result in the creation or imposition of any lien, charge or encumbrance which would have a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loans or materially and adversely affect (x) the ability of the Seller to perform its obligations under this Agreement or the Pooling and Servicing Agreement or (y) the business, operations, financial condition, properties or assets of the Seller taken as a whole;
(iv) No consent, approval, authorization authorization, or order of, registration any court or filing with, governmental agency or notice on behalf of the Seller to any governmental authority or court body is required, under federal laws or the laws of the State of New York, required for the execution, delivery and performance by the Seller of, or compliance by the Seller with, this Agreement or the consummation by of the transactions contemplated hereby, or if any such consent, approval, authorization or order is required, the Seller of any other transaction contemplated hereby and by has obtained the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificatessame;
(v) The Seller is not an approved seller/servicer for Xxxxxx Xxx or Xxxxxxx Mac in violation ofgood standing and is a HUD approved mortgagee pursuant to Section 203 and Section 211 of the National Housing Act;
(vi) No litigation or proceeding is pending or, and to the execution and delivery best knowledge of this Agreement by the Seller, threatened, against the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over the Seller or its assets, which violation might have consequences that would materially and adversely affect the condition (financial execution, delivery or otherwise) enforceability of this Agreement or the operation Pooling and Servicing Agreement or the issuance of the Certificates or the ability of the Seller to service the Mortgage Loans or to perform any of its assets or might have consequences other obligations hereunder in accordance with the terms hereof and the terms of the Pooling and Servicing Agreement or, that would materially and adversely affect result in a material adverse change in the performance financial or operating conditions of its obligations and duties hereunder;
(vi) The Seller does not believe, nor does it have any reason or cause to believe, that it cannot perform each and every covenant contained in this Agreementthe Seller;
(vii) Immediately prior No certificate of an officer, statement or other information furnished in writing or report delivered by the Seller to the sale Purchaser, any Affiliate of the Purchaser or the Trustee for use in connection with the purchase of the Mortgage Loans to the Purchaser as herein contemplated, the Seller was the owner of the related Mortgage and the indebtedness evidenced by transactions contemplated hereunder and under the related Mortgage NotePooling and Servicing Agreement contains any untrue statement of a material fact, andor omits a material fact necessary to make the information, upon the payment to the Seller of the Purchase Pricecertificate, statement or report not misleading in the event that the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereofany material respect;
(viii) There are no actions or proceedings against, or investigations known to it of, the Seller before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans by the Seller or the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by the Seller of its obligations under, or validity or enforceability of, this Agreement;
(ix) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;
(x) The Seller has not dealt with any broker, investment banker, agent or other person, except for the Purchaser or any of its affiliates, that may be entitled to any commission or compensation in connection with the sale of the Mortgage Loans (except that an entity that previously financed the Seller’s ownership of the Mortgage Loans may be entitled to a fee to release its security interest in the Mortgage Loans, which fee shall have been paid and which security interest shall have been released on or prior to the Closing Date);
(xiix) There is no litigation currently pending orEach Mortgage Note, each Mortgage, each Assignment and any other document required to be delivered by or on behalf of the Seller under this Agreement or the Pooling and Servicing Agreement to the best Purchaser or any assignee, transferee or designee of the Seller’s knowledge without independent investigationPurchaser for each Mortgage Loan has been or will be, threatened against in accordance with Section 4(b) hereof, delivered to the Purchaser or any such assignee, transferee or designee. With respect to each Mortgage Loan, the Seller is in possession of a complete Mortgage File in compliance with the Pooling and Servicing Agreement, except for such documents that would reasonably be expected have been delivered (1) to adversely affect the Purchaser or any assignee, transferee or designee of the Purchaser or (2) for recording to the appropriate public recording office and have not yet been returned;
(x) The Seller (A) is a solvent entity and is paying its debts as they become due, (B) immediately after giving effect to the transfer of the Mortgage Loans, will be a solvent entity and will have sufficient resources to pay its debts as they become due and (C) did not sell the issuance Mortgage Loans to the Purchaser with the intent to hinder, delay or defraud any of the Certificates or the execution, delivery, performance or enforceability of this Agreement, or that would result in a material adverse change in the financial condition of the Sellerits creditors; and
(xiixi) The information set forth in the applicable part transfer of the Closing Schedule relating Mortgage Loans to the existence of a Prepayment Charge is complete, true and correct in all material respects Purchaser at the date or dates respecting which such information is furnished Closing Date will be treated by the Seller for financial accounting and each Prepayment Charge is permissible and enforceable in accordance with its terms upon the mortgagor’s full and voluntary principal prepayment under applicable law, 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; (2) the collectability thereof may be limited due to acceleration in connection with reporting purposes as a foreclosure or other involuntary prepayment; or (3) subsequent changes in applicable law may limit or prohibit enforceability thereof under applicable lawsale of assets.
Appears in 5 contracts
Samples: Pooling and Servicing Agreement (Long Beach Mortgage Loan Trust 2004-3, Asset-Backed Certs., Series 2004-3), Mortgage Loan Purchase Agreement (Long Beach Mortgage Loan Trust 2006-A), Pooling and Servicing Agreement (Long Beach Loan 2003-2)
Representations, Warranties and Covenants of the Seller. The Seller hereby represents and warrants to the Purchaser, as of Purchaser with respect to the date hereof and Mortgage Loans as of the Closing Date, and covenants, thatDate or as of such date specifically provided herein:
(i) The Seller is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware corporation with full corporate power and authority is duly authorized and qualified to conduct its transact any and all business as presently contemplated by this Agreement to be conducted by it the Seller in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent material necessary to ensure its ability to enforce each Mortgage Loan and to service the consummation Mortgage Loans in accordance with the terms of the transactions contemplated herein. The Agreement has been duly authorized, executed Pooling and delivered by the Seller. Servicing Agreement;
(ii) The Seller had the full corporate power and authority to own the originate, hold and sell each Mortgage Loans and to transfer and convey the Mortgage Loans to the Purchaser Loan and has the full corporate power and authority to execute service each Mortgage Loan, and deliverto execute, engage in deliver and perform, and to enter into and consummate the transactions contemplated by, by this Agreement and perform and observe the terms and conditions of this Agreement;
(ii) The Seller has duly authorized by all necessary corporate action on the part of the Seller the execution, delivery and performance of this Agreement, has duly executed and delivered this Agreement, ; and this Agreement, assuming the due authorization, execution and delivery thereof by the Purchaser, constitutes a legal, valid and binding obligation of the Seller, enforceable against it the Seller in accordance with its terms terms, except as to the extent that (a) the enforceability thereof may be limited by bankruptcy, insolvency or reorganization or by general principles insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally and (b) the remedy of equityspecific 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, execution and delivery and performance of this Agreement by the Seller, the servicing of the Mortgage Loans by the Seller (x) does not conflict under the Pooling and Servicing Agreement, 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 Seller and will not conflict with, does not breach and will not (A) result in a breach of and does not constitute and will not constitute a default (or an event, which with notice or lapse of time or both, would constitute a default) under (A) any terms or provisions of the organizational documents of the Seller, (B) any term or provision of the charter or by-laws of the Seller 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, contract, agreement or instrument or indenture, to which the Seller is a party or by which the Seller or any of its property is it may be bound, or (C) any lawstatute, rule, regulation, order, judgment, writ, injunction order or decree regulation applicable to the Seller of any court court, regulatory body, administrative agency or governmental authority body having jurisdiction over the Seller; and the Seller 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 Seller's knowledge, would in the future materially and adversely affect, (x) the ability of the Seller to perform its property and obligations under this Agreement or (y) does not create the business, operations, financial condition, properties or impose and will not result in the creation or imposition of any lien, charge or encumbrance (other than any created hereby in favor assets of the Purchaser and its assignees) which would have Seller taken as a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loanswhole;
(iv) No consent, approval, authorization or order of, registration of any court or filing with, governmental agency or notice on behalf of the Seller to any governmental authority or court body is required, under federal laws or the laws of the State of New York, required for the execution, delivery and performance by the Seller of, or compliance by the Seller with, this Agreement or the consummation by of the transactions contemplated hereby, or if any such consent, approval, authorization or order is required, the Seller of any other transaction contemplated hereby and by has obtained the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificatessame;
(v) The Seller is not an approved originator/servicer for Fannie Mae or Freddie Mxx xx gxxx staxxxxx xnd is a HUD approved mortgagee pursuant to Section 203 and Section 211 of the National Housing Act; and
(vi) Except as otherwise disclosed in violation ofthe Prospectus Supplement, and the execution and delivery of this Agreement by no litigation is pending against the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over the Seller or its assets, which violation might have consequences that would materially and adversely affect the condition (financial or otherwise) or the operation of the Seller or its assets or might have consequences that would materially and adversely affect the performance of its obligations and duties hereunder;
(vi) The Seller 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) Immediately prior to the sale of the Mortgage Loans to the Purchaser as herein contemplated, the Seller was the owner of the related Mortgage and the indebtedness evidenced by the related Mortgage Note, and, upon the payment to the Seller of the Purchase Price, in the event that the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereof;
(viii) There are no actions or proceedings against, or investigations known to it of, the Seller before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans by the Seller or the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by the Seller of its obligations under, or validity or enforceability of, this Agreement;
(ix) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;
(x) The Seller has not dealt with any broker, investment banker, agent or other person, except for the Purchaser or any of its affiliates, that may be entitled to any commission or compensation in connection with the sale of the Mortgage Loans (except that an entity that previously financed the Seller’s ownership of the Mortgage Loans may be entitled to a fee to release its security interest in the Mortgage Loans, which fee shall have been paid and which security interest shall have been released on or prior to the Closing Date);
(xi) There is no litigation currently pending or, to the best of the Seller’s knowledge without independent investigation, threatened against the Seller that would reasonably be expected to adversely affect the transfer of the Mortgage Loans, the issuance of the Certificates or the execution, delivery, performance delivery or enforceability of this Agreement, Agreement or that would result in a material adverse change in the financial condition ability of the Seller; and
(xii) The information set forth in Seller to service the applicable part Mortgage Loans or to perform any of the Closing Schedule relating to the existence of a Prepayment Charge 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 its other obligations hereunder in accordance with its the terms upon the mortgagor’s full and voluntary principal prepayment under applicable law, 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; (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 under applicable lawhereof.
Appears in 4 contracts
Samples: Pooling and Servicing Agreement (Ameriquest Mortgage Securities Inc Asset Back Ser 2004-R1), Pooling and Servicing Agreement (Ameriquest Mortgage Securities Inc Asset-Backed Pass-Through Certificates Series 2004-R4), Pooling and Servicing Agreement (Ameriquest Mort Sec Inc Asset Backed Ser 2003-10)
Representations, Warranties and Covenants of the Seller. The Seller hereby represents and warrants to the Purchaserwarrants, as of the date hereof and as of the Closing Subsequent Transfer Date, and covenants, that:
(i) The Seller is duly organized, validly existing and in good standing as a Delaware corporation under the laws of the State of California with full corporate power and authority to conduct its business as presently conducted by it to the extent material to the consummation of the transactions contemplated herein. The Agreement has been duly authorized, executed and delivered by the Seller. The Seller had the full corporate power and authority to own the Subsequent Mortgage Loans and to transfer and convey the Subsequent Mortgage Loans to the Purchaser and has the full corporate power and authority to execute and deliver, engage in the transactions contemplated by, and perform and observe the terms and conditions of this Agreement;.
(ii) The Seller has duly authorized the execution, delivery and performance of this Agreement, has duly executed and delivered this Agreement, and this Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a legal, valid and binding obligation of the Seller, enforceable against it in accordance with its terms except as the enforceability thereof may be limited by bankruptcy, insolvency or reorganization or by general principles of equity;.
(iii) The execution, delivery and performance of this Agreement by the Seller (x) does not conflict and will not conflict with, does not breach and will not result in a breach of and does not constitute and will not constitute a default (or an event, which with notice or lapse of time or both, would constitute a default) under (A) any terms or provisions of the organizational documents articles of incorporation or by-laws of the Seller, (B) any term or provision of any material agreement, contract, instrument or indenture, to which the Seller is a party or by which the Seller or any of its property is bound, or (C) any law, rule, regulation, order, judgment, writ, injunction or decree of any court or governmental authority having jurisdiction over the Seller or any of its property and (y) does not create or impose and will not result in the creation or imposition of any lien, charge or encumbrance (other than any created hereby in favor of the Purchaser and its assignees) which would have a material adverse effect upon the Subsequent Mortgage Loans or any documents or instruments evidencing or securing the Subsequent Mortgage Loans;.
(iv) No consent, approval, authorization or order of, registration or filing with, or notice on behalf of the Seller to any governmental authority or court is required, under federal laws or the laws of the State of New YorkCalifornia, for the execution, delivery and performance by the Seller of, or compliance by the Seller with, this Agreement or the consummation by the Seller of any other transaction contemplated hereby and by the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificates;.
(v) This Agreement does not contain any untrue statement of material fact or omit to state a material fact necessary to make the statements contained herein not misleading. The written statements, reports and other documents prepared and furnished or to be prepared and furnished by the Seller pursuant to this Agreement or in connection with the transactions contemplated hereby taken in the aggregate do not contain any untrue statement of material fact or omit to state a material fact necessary to make the statements contained therein not misleading.
(vi) The Seller is not in violation of, and the execution and delivery of this Agreement by the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over the Seller or its assets, which violation might have consequences that would materially and adversely affect the condition (financial or otherwise) or the operation of the Seller or its assets or might have consequences that would materially and adversely affect the performance of its obligations and duties hereunder;.
(vivii) The Seller 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 Seller unable to comply with HUD eligibility requirements or that would require notification to HUD.
(viii) The Seller 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;.
(viiix) Immediately prior to the sale of the Subsequent Mortgage Loans to the Purchaser as herein contemplated, the Seller was the owner of the related Mortgage and the indebtedness evidenced by the related Mortgage Note, and, upon the payment to the Seller of the Purchase Price, in the event that the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereof;.
(viiix) There are no actions or proceedings against, or investigations known to it of, the Seller before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Subsequent Mortgage Loans by the Seller or the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by the Seller of its obligations under, or validity or enforceability of, this Agreement;.
(ixxi) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;provisions.
(xxii) [intentionally omitted]
(xiii) The Seller has not dealt with any broker, investment banker, agent or other person, except for the Purchaser or any of its affiliates, that may be entitled to any commission or compensation in connection with the sale of the Subsequent Mortgage Loans (except that an entity that previously financed the Seller’s 's ownership of the Subsequent Mortgage Loans may be entitled to a fee to release its security interest in the Subsequent Mortgage Loans, which fee shall have been paid and which security interest shall have been released on or prior to the Closing Subsequent Transfer Date);.
(xixiv) There is no litigation currently pending or, to the best of the Seller’s 's knowledge without independent investigation, threatened against the Seller that would reasonably be expected to adversely affect the transfer of the Subsequent Mortgage Loans, the issuance of the Certificates or the execution, delivery, performance or enforceability of this Agreement, or that would result in a material adverse change in the financial condition of the Seller; and
(xii) The information set forth in the applicable part of the Closing Schedule relating to the existence of a Prepayment Charge 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 upon the mortgagor’s full and voluntary principal prepayment under applicable law, 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; (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 under applicable law.
Appears in 4 contracts
Samples: Subsequent Transfer Instrument (New Century Asset Backed Float Rate Cert Series 1997-Nc4), Subsequent Transfer Instrument (Salomon Brothers Mort Sec Vii Inc Asst Back Cert Se 1998-Nc3), Subsequent Transfer Instrument (Salomon Bros Mort Sec Vii Inc Ast Bk Fl Rte Cer Se 1998 -Nc4)
Representations, Warranties and Covenants of the Seller. (a) The Seller hereby represents and warrants to and for the Purchaser, as benefit of the date hereof and Purchaser as of the Closing Date, and covenants, Date that:
(i) The Seller is a Delaware corporation with full corporate power and authority to conduct its business as presently conducted by it to the extent material to the consummation of the transactions contemplated herein. The Agreement has been national banking association, duly authorized, executed validly existing and delivered by in good standing under the Seller. The Seller had laws of the full corporate power and authority to own the Mortgage Loans and to transfer and convey the Mortgage Loans to the Purchaser and has the full corporate power and authority to execute and deliver, engage in the transactions contemplated by, and perform and observe the terms and conditions United States of this Agreement;America.
(ii) The execution and delivery of this Agreement by the Seller, and the performance of Seller's obligations under this Agreement, will not violate the Seller's organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets, which default or breach, in the Seller's good faith and commercially reasonable judgment is likely to affect materially and adversely either the ability of the Seller to perform its obligations under this Agreement or its financial condition.
(iii) The Seller has the full power and authority to enter into and perform its obligations under this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement, and this .
(iv) This Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a legalvalid, valid legal and binding obligation of the Seller, enforceable against it the Seller in accordance with its the terms except as the enforceability thereof may be limited by hereof, subject to (A) applicable bankruptcy, insolvency or reorganization or by insolvency, reorganization, fraudulent transfer, moratorium and other laws affecting the enforcement of creditors' rights generally and (B) general principles of equity;
(iii) The execution, delivery and performance regardless of this Agreement by the Seller (x) does not conflict and will not conflict with, does not breach and will not result whether such enforcement is considered in a breach of and does not constitute and will not constitute a default (proceeding in equity or an event, which with notice or lapse of time or both, would constitute a default) under (A) any terms or provisions of the organizational documents of the Seller, (B) any term or provision of any material agreement, contract, instrument or indenture, to which the Seller is a party or by which the Seller or any of its property is bound, or (C) any at law, rule, regulation, order, judgment, writ, injunction or decree of any court or governmental authority having jurisdiction over the Seller or any of its property and (y) does not create or impose and will not result in the creation or imposition of any lien, charge or encumbrance (other than any created hereby in favor of the Purchaser and its assignees) which would have a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loans;
(iv) No consent, approval, authorization or order of, registration or filing with, or notice on behalf of the Seller to any governmental authority or court is required, under federal laws or the laws of the State of New York, for the execution, delivery and performance by the Seller of, or compliance by the Seller with, this Agreement or the consummation by the Seller of any other transaction contemplated hereby and by the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificates;.
(v) The Seller is not in violation of, and the its execution and delivery of this Agreement by the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect toof, any law, any order or decree of any court or arbiter, or any order order, regulation or regulation demand of any federal, state, municipal state or local governmental agency having jurisdiction over the Seller or its assetsregulatory authority, which violation might have consequences that would violation, in the Seller's good faith and reasonable judgment, is likely to affect materially and adversely affect either the condition (financial or otherwise) or the operation ability of the Seller or its assets or might have consequences that would materially and adversely affect the performance of to perform its obligations and duties hereunder;under this Agreement or the financial condition of the Seller.
(vi) The Seller does not believe, nor does it have any reason or cause No litigation is pending with regard to believe, that it cannot perform each and every covenant contained in this Agreement;
(vii) Immediately prior to the sale of the Mortgage Loans to the Purchaser as herein contemplated, which the Seller was the owner has received service of the related Mortgage and the indebtedness evidenced by the related Mortgage Note, and, upon the payment to the Seller of the Purchase Price, in the event that the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereof;
(viii) There are no actions or proceedings against, or investigations known to it of, the Seller before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans by the Seller or the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by the Seller of its obligations under, or validity or enforceability of, this Agreement;
(ix) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;
(x) The Seller has not dealt with any broker, investment banker, agent or other person, except for the Purchaser or any of its affiliates, that may be entitled to any commission or compensation in connection with the sale of the Mortgage Loans (except that an entity that previously financed the Seller’s ownership of the Mortgage Loans may be entitled to a fee to release its security interest in the Mortgage Loans, which fee shall have been paid and which security interest shall have been released on or prior to the Closing Date);
(xi) There is no litigation currently pending process or, to the best of the Seller’s knowledge without independent investigation's knowledge, threatened against the Seller that which if determined adversely to the Seller would reasonably be expected to adversely affect prohibit the transfer of the Mortgage Loans, the issuance of the Certificates or the execution, delivery, performance or enforceability of Seller from entering into this Agreement, or that in the Seller's good faith and reasonable judgment, would result in a material adverse change in be likely to materially and adversely affect either the ability of the Seller to perform its obligations under this Agreement or the financial condition of the Seller; and.
(xiivii) No consent, approval, authorization or order of, or filing or registration with, any state or federal court or governmental agency or body is required for the consummation by the Seller of the transactions contemplated herein, except for those consents, approvals, authorizations and orders that previously have been obtained and those filings and registrations that previously have been completed, and except for those filings and recordings of Mortgage Loan documents and assignments thereof that are contemplated by the Pooling and Servicing Agreement to be completed after the Closing Date.
(b) The information Seller hereby makes the representations and warranties contained in Schedule II (subject to any exceptions thereto listed on Schedule IIA) to and for the benefit of the Purchaser as of the Closing Date (or as of such other dates specifically provided in the particular representation and warranty), with respect to (and solely with respect to) each Mortgage Loan.
(c) Upon discovery of any Material Breach or Material Document Defect, the Purchaser or its designee shall notify the Seller thereof in writing and request that the Seller correct or cure such Material Breach or Material Document Defect. Within 90 days of the earlier of discovery or receipt of written notice by the Seller that there has been a Material Breach or a Material Document Defect (such 90-day period, the "Initial Resolution Period"), the Seller shall (i) cure such Material Breach or Material Document Defect, as the case may be, in all material respects or (ii) repurchase each affected Mortgage Loan or REO Loan (each, a "Defective Mortgage Loan") at the related Purchase Price in accordance with the terms hereof and, if applicable, the terms of the Pooling and Servicing Agreement, with payment to be made in accordance with the reasonable directions of the Purchaser; provided that if the Seller certifies in writing to the Purchaser (i) that, as evidenced by an accompanying Opinion of Counsel, any such Material Breach or Material Document Defect, as the case may be, does not and will not cause the Defective Mortgage Loan, to fail to be a "qualified mortgage" within the meaning of Section 860G(a)(3) of the REMIC Provisions, (ii) that such Material Breach or Material Document Defect, as the case may be, is capable of being corrected or cured but not within the applicable Initial Resolution Period, (iii) that the Seller has commenced and is diligently proceeding with the cure of such Material Breach or Material Document Defect, as the case may be, within the applicable Initial Resolution Period, and (iv) that the Seller anticipates that such Material Breach or Material Document Defect, as the case may be, will be corrected or cured within an additional period not to exceed the Resolution Extension Period (as defined below), then the Seller shall have an additional period equal to the applicable Resolution Extension Period to complete such correction or cure or, failing such, to repurchase the Defective Mortgage Loan; and provided, further, that, if the Seller's obligation to repurchase any Defective Mortgage Loan as a result of a Material Breach or Material Document Defect arises within the three-month period commencing on the Closing Date (or within the two-year period commencing on the Closing Date if the Defective Mortgage Loan is a "defective obligation" within the meaning of Section 860G(a)(4)(B)(ii) of the Code and Treasury Regulation Section 1.860G-2(f)), and if the Defective Mortgage Loan is still subject to the Pooling and Servicing Agreement, the Seller may, at its option, in lieu of repurchasing such Defective Mortgage Loan (except in the case of the CP Component Mortgage Loan) (but, in any event, no later than such repurchase would have to have been completed), (i) replace such Defective Mortgage Loan with one or more substitute mortgage loans that individually and collectively satisfy the requirements of the definition of "Qualifying Substitute Mortgage Loan" set forth in the applicable part Pooling and Servicing Agreement, and (ii) pay any corresponding Substitution Shortfall Amount, such substitution and payment to be effected in accordance with the terms of the Closing Schedule relating Pooling and Servicing Agreement. Any such repurchase or replacement of a Defective Mortgage Loan shall be on a whole loan, servicing released basis. The Seller shall have no obligation to monitor the Mortgage Loans regarding the existence of a Prepayment Charge is completeMaterial Breach or Material Document Defect, true and correct in all material respects at but if the date Seller discovers a Material Breach or dates respecting which such information is furnished and each Prepayment Charge is permissible and enforceable in accordance Material Document Defect with its terms upon respect to a Mortgage Loan, it will notify the mortgagor’s full and voluntary principal prepayment under applicable law, 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; (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 under applicable lawPurchaser.
Appears in 3 contracts
Samples: Mortgage Loan Purchase and Sale Agreement (Banc of America Commercial Mortgage Inc. Series 2006-1), Mortgage Loan Purchase and Sale Agreement (Banc of America Commercial Mortgage Inc., Series 2005-5), Mortgage Loan Purchase and Sale Agreement (Banc of America Commercial Mortgage Inc., Series 2005-2)
Representations, Warranties and Covenants of the Seller. The Seller hereby represents and warrants to the Purchaser, as of the date hereof and as of the Closing Date, and covenants, covenants that:
(i1) The Seller is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware corporation with full corporate power and authority is duly authorized and qualified to conduct its transact any and all business as presently contemplated by this Agreement to be conducted by it the Seller in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent material necessary to ensure the consummation ability of the transactions contemplated herein. The Agreement has been duly authorized, executed Master Servicer to enforce each Mortgage Loan and delivered by to service the Seller. Mortgage Loans in accordance with the terms of the Pooling and Servicing Agreement;
(2) The Seller had the full corporate power and authority to own the hold and sell each Mortgage Loans and to transfer and convey the Mortgage Loans to the Purchaser Loan and has the full corporate power and authority to execute service each Mortgage Loan and deliverto execute, engage in deliver and perform, and to enter into and consummate the transactions contemplated by, by this Agreement and perform and observe the terms and conditions of this Agreement;
(ii) The Seller has duly authorized by all necessary corporate action on the part of the Seller the execution, delivery and performance of this Agreement, ; this Agreement has been duly executed and delivered this Agreement, by the Seller; and this Agreement, assuming the due authorization, execution and delivery thereof by the Purchaser, constitutes a legal, valid and binding obligation of the Seller, enforceable against it the Seller in accordance with its terms terms, except as to the extent that (a) the enforceability thereof may be limited by bankruptcy, insolvency or reorganization or by general principles insolvency, moratorium, receivership and other similar laws relating to creditors’ rights generally and (b) the remedy of equityspecific 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;
(iii3) The execution, execution and delivery and performance of this Agreement by the Seller, the servicing of the Mortgage Loans by the Seller (x) does not conflict under the Pooling and Servicing Agreement, 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 Seller and will not conflict with, does not breach and will not (A) result in a breach of and does not constitute and will not constitute a default (or an event, which with notice or lapse of time or both, would constitute a default) under (A) any terms or provisions of the organizational documents of the Seller, (B) any term or provision of the charter or by-laws of the Seller 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, contract, agreement or instrument or indenture, to which the Seller is a party or by which the Seller or any of its property is it may be bound, or (C) any lawstatute, rule, regulation, order, judgment, writ, injunction order or decree regulation applicable to the Seller of any court court, regulatory body, administrative agency or governmental authority body having jurisdiction over the Seller; and the Seller 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 Seller’s knowledge, would in the future materially and adversely affect, (x) the ability of the Seller to perform its property and obligations under this Agreement or (y) does not create the business, operations, financial condition, properties or impose and will not result in the creation or imposition of any lien, charge or encumbrance (other than any created hereby in favor assets of the Purchaser and its assignees) which would have Seller taken as a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loanswhole;
(iv4) No consent, approval, authorization or order of, registration of any court or filing with, governmental agency or notice on behalf of the Seller to any governmental authority or court body is required, under federal laws or the laws of the State of New York, required for the execution, delivery and performance by the Seller of, or compliance by the Seller with, this Agreement or the consummation by of the transactions contemplated hereby, or if any such consent, approval, authorization or order is required, the Seller of any other transaction contemplated hereby and by has obtained the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificatessame;
(v5) The Seller is not an approved originator/servicer for Xxxxxx Xxx or Xxxxxxx Mac in violation ofgood standing and is a HUD approved mortgagee pursuant to Section 203 and Section 211 of the National Housing Act; and
(6) Except as otherwise disclosed in the Prospectus Supplement, and the execution and delivery of this Agreement by no litigation is pending against the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over the Seller or its assets, which violation might have consequences that would materially and adversely affect the condition (financial or otherwise) or the operation of the Seller or its assets or might have consequences that would materially and adversely affect the performance of its obligations and duties hereunder;
(vi) The Seller 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) Immediately prior to the sale of the Mortgage Loans to the Purchaser as herein contemplated, the Seller was the owner of the related Mortgage and the indebtedness evidenced by the related Mortgage Note, and, upon the payment to the Seller of the Purchase Price, in the event that the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereof;
(viii) There are no actions or proceedings against, or investigations known to it of, the Seller before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans by the Seller or the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by the Seller of its obligations under, or validity or enforceability of, this Agreement;
(ix) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;
(x) The Seller has not dealt with any broker, investment banker, agent or other person, except for the Purchaser or any of its affiliates, that may be entitled to any commission or compensation in connection with the sale of the Mortgage Loans (except that an entity that previously financed the Seller’s ownership of the Mortgage Loans may be entitled to a fee to release its security interest in the Mortgage Loans, which fee shall have been paid and which security interest shall have been released on or prior to the Closing Date);
(xi) There is no litigation currently pending or, to the best of the Seller’s knowledge without independent investigation, threatened against the Seller that would reasonably be expected to adversely affect the transfer of the Mortgage Loans, the issuance of the Certificates or the execution, delivery, performance delivery or enforceability of this Agreement, Agreement or that would result in a material adverse change in the financial condition ability of the Seller; and
(xii) The information set forth in Seller to service the applicable part Mortgage Loans or the Seller to perform any of the Closing Schedule relating to the existence of a Prepayment Charge 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 its other obligations hereunder in accordance with its the terms upon the mortgagor’s full and voluntary principal prepayment under applicable law, 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; (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 under applicable lawhereof.
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (Ameriquest Mortgage Securities Inc., Asset-Backed Pass-Through Certificates, Series 2005-R8), Pooling and Servicing Agreement (Ameriquest Mortgage Securities Trust 2006-R1, Asset-Backed Pass-Through Certificates, Series 2006-R1), Pooling and Servicing Agreement (Ameriquest Mortgage Securities Inc., Asset-Backed Pass-Through Certificates, Series 2005-R7)
Representations, Warranties and Covenants of the Seller. The Seller hereby represents and warrants to the Purchaser, as of the date hereof and as of the Closing Date, and covenants, covenants that:
(i1) The Seller is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware corporation with full corporate power and authority is duly authorized and qualified to conduct its transact any and all business as presently contemplated by this Agreement to be conducted by it the Seller in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent material necessary to ensure the consummation ability of the transactions contemplated herein. The Agreement has been duly authorized, executed Master Servicer to enforce each Mortgage Loan and delivered by to service the Seller. Mortgage Loans in accordance with the terms of the Pooling and Servicing Agreement;
(2) The Seller had the full corporate power and authority to own the hold and sell each Mortgage Loans and to transfer and convey the Mortgage Loans to the Purchaser Loan and has the full corporate power and authority to execute service each Mortgage Loan, and deliverto execute, engage in deliver and perform, and to enter into and consummate the transactions contemplated by, by this Agreement and perform and observe the terms and conditions of this Agreement;
(ii) The Seller has duly authorized by all necessary corporate action on the part of the Seller the execution, delivery and performance of this Agreement, ; this Agreement has been duly executed and delivered this Agreement, by the Seller; and this Agreement, assuming the due authorization, execution and delivery thereof by the Purchaser, constitutes a legal, valid and binding obligation of the Seller, enforceable against it the Seller in accordance with its terms terms, except as to the extent that (a) the enforceability thereof may be limited by bankruptcy, insolvency or reorganization or by general principles insolvency, moratorium, receivership and other similar laws relating to creditors’ rights generally and (b) the remedy of equityspecific 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;
(iii3) The execution, execution and delivery and performance of this Agreement by the Seller, the servicing of the Mortgage Loans by the Seller (x) does not conflict under the Pooling and Servicing Agreement, 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 Seller and will not conflict with, does not breach and will not (A) result in a breach of and does not constitute and will not constitute a default (or an event, which with notice or lapse of time or both, would constitute a default) under (A) any terms or provisions of the organizational documents of the Seller, (B) any term or provision of the charter or by-laws of the Seller 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, contract, agreement or instrument or indenture, to which the Seller is a party or by which the Seller or any of its property is it may be bound, or (C) any lawstatute, rule, regulation, order, judgment, writ, injunction order or decree regulation applicable to the Seller of any court court, regulatory body, administrative agency or governmental authority body having jurisdiction over the Seller; and the Seller 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 Seller’s knowledge, would in the future materially and adversely affect, (x) the ability of the Seller to perform its property and obligations under this Agreement or (y) does not create the business, operations, financial condition, properties or impose and will not result in the creation or imposition of any lien, charge or encumbrance (other than any created hereby in favor assets of the Purchaser and its assignees) which would have Seller taken as a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loanswhole;
(iv4) No consent, approval, authorization or order of, registration of any court or filing with, governmental agency or notice on behalf of the Seller to any governmental authority or court body is required, under federal laws or the laws of the State of New York, required for the execution, delivery and performance by the Seller of, or compliance by the Seller with, this Agreement or the consummation by of the transactions contemplated hereby, or if any such consent, approval, authorization or order is required, the Seller of any other transaction contemplated hereby and by has obtained the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificatessame;
(v5) The Seller is not an approved originator/servicer for Xxxxxx Xxx or Xxxxxxx Mac in violation ofgood standing and is a HUD approved mortgagee pursuant to Section 203 and Section 211 of the National Housing Act; and
(6) Except as otherwise disclosed in the Prospectus Supplement, and the execution and delivery of this Agreement by no litigation, action, suit, proceeding or investigation is pending against the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over the Seller or its assets, which violation might have consequences that would materially and adversely affect the condition (financial or otherwise) or the operation of the Seller or its assets or might have consequences that would materially and adversely affect the performance of its obligations and duties hereunder;
(vi) The Seller 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) Immediately prior to the sale of the Mortgage Loans to the Purchaser as herein contemplated, the Seller was the owner of the related Mortgage and the indebtedness evidenced by the related Mortgage Note, and, upon the payment to the Seller of the Purchase Price, in the event that the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereof;
(viii) There are no actions or proceedings against, or investigations known to it of, the Seller before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans by the Seller or the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by the Seller of its obligations under, or validity or enforceability of, this Agreement;
(ix) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;
(x) The Seller has not dealt with any broker, investment banker, agent or other person, except for the Purchaser or any of its affiliates, that may be entitled to any commission or compensation in connection with the sale of the Mortgage Loans (except that an entity that previously financed the Seller’s ownership of the Mortgage Loans may be entitled to a fee to release its security interest in the Mortgage Loans, which fee shall have been paid and which security interest shall have been released on or prior to the Closing Date);
(xi) There is no litigation currently pending or, to the best of the Seller’s knowledge without independent investigation, threatened against the Seller that would reasonably be expected to adversely affect the transfer of the Mortgage Loans, the issuance of the Certificates or the execution, delivery, performance delivery or enforceability of this Agreement, Agreement or that would result in a material adverse change in the financial condition ability of the Seller; and
(xii) The information set forth in Seller to service the applicable part Mortgage Loans or the Seller to perform any of the Closing Schedule relating to the existence of a Prepayment Charge 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 its other obligations hereunder in accordance with its the terms upon the mortgagor’s full and voluntary principal prepayment under applicable law, 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; (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 under applicable lawhereof.
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (Argent Securities Inc. Series 2006-W3 Trust), Pooling and Servicing Agreement (Argent Securities Inc. Series 2006-W3 Trust), Pooling and Servicing Agreement (Argent Securities Trust 2006-M1)
Representations, Warranties and Covenants of the Seller. The Seller hereby represents and warrants to the Purchaser, Purchaser as of the date hereof and as of the Closing Date, and covenants, covenants that:
(i1) The Seller is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware corporation with full corporate power and authority is duly authorized and qualified to conduct its transact any and all business as presently contemplated by this Agreement to be conducted by it the Seller in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent material necessary to ensure the consummation ability of the transactions contemplated herein. The Agreement has been duly authorized, executed Master Servicer to enforce each Mortgage Loan and delivered by to service the Seller. Mortgage Loans in accordance with the terms of the Pooling and Servicing Agreement;
(2) The Seller had the full corporate power and authority to own the originate, hold and sell each Mortgage Loans and to transfer and convey the Mortgage Loans to the Purchaser Loan and has the full corporate power and authority to execute service each Mortgage Loan, and deliverto execute, engage in deliver and perform, and to enter into and consummate the transactions contemplated by, by this Agreement and perform and observe the terms and conditions of this Agreement;
(ii) The Seller has duly authorized by all necessary corporate action on the part of the Seller the execution, delivery and performance of this Agreement, ; this Agreement has been duly executed and delivered this Agreement, by the Seller and this Agreement, assuming the due authorization, execution and delivery thereof by the Purchaser, constitutes a legal, valid and binding obligation of the Seller, enforceable against it the Seller in accordance with its terms terms, except as to the extent that (a) the enforceability thereof may be limited by bankruptcy, insolvency or reorganization or by general principles insolvency, moratorium, receivership and other similar laws relating to creditors’ rights generally and (b) the remedy of equityspecific 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;
(iii3) The execution, execution and delivery and performance of this Agreement by the Seller, the servicing of the Mortgage Loans by the Seller (x) does not conflict under the Pooling and Servicing Agreement, 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 Seller and will not conflict with, does not breach and will not (A) result in a breach of and does not constitute and will not constitute a default (or an event, which with notice or lapse of time or both, would constitute a default) under (A) any terms or provisions of the organizational documents of the Seller, (B) any term or provision of the charter or by-laws of the Seller 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, contract, agreement or instrument or indenture, to which the Seller is a party or by which the Seller or any of its property is it may be bound, or (C) any lawstatute, rule, regulation, order, judgment, writ, injunction order or decree regulation applicable to the Seller of any court court, regulatory body, administrative agency or governmental authority body having jurisdiction over the Seller; and the Seller 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 Seller’s knowledge, would in the future materially and adversely affect, (x) the ability of the Seller to perform its property and obligations under this Agreement or (y) does not create the business, operations, financial condition, properties or impose and will not result in the creation or imposition of any lien, charge or encumbrance (other than any created hereby in favor assets of the Purchaser and its assignees) which would have Seller taken as a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loanswhole;
(iv4) No consent, approval, authorization or order of, registration of any court or filing with, governmental agency or notice on behalf of the Seller to any governmental authority or court body is required, under federal laws or the laws of the State of New York, required for the execution, delivery and performance by the Seller of, or compliance by the Seller with, this Agreement or the consummation by of the transactions contemplated hereby, or if any such consent, approval, authorization or order is required, the Seller of any other transaction contemplated hereby and by has obtained the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificatessame;
(v5) The Seller is not an approved originator/servicer for Xxxxxx Xxx or Xxxxxxx Mac in violation ofgood standing and is a HUD approved mortgagee pursuant to Section 203 and Section 211 of the National Housing Act; and
(6) Except as otherwise disclosed in the Prospectus Supplement, and the execution and delivery of this Agreement by no litigation, action, suit, proceeding or investigation is pending against the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over the Seller or its assets, which violation might have consequences that would materially and adversely affect the condition (financial or otherwise) or the operation of the Seller or its assets or might have consequences that would materially and adversely affect the performance of its obligations and duties hereunder;
(vi) The Seller 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) Immediately prior to the sale of the Mortgage Loans to the Purchaser as herein contemplated, the Seller was the owner of the related Mortgage and the indebtedness evidenced by the related Mortgage Note, and, upon the payment to the Seller of the Purchase Price, in the event that the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereof;
(viii) There are no actions or proceedings against, or investigations known to it of, the Seller before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans by the Seller or the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by the Seller of its obligations under, or validity or enforceability of, this Agreement;
(ix) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;
(x) The Seller has not dealt with any broker, investment banker, agent or other person, except for the Purchaser or any of its affiliates, that may be entitled to any commission or compensation in connection with the sale of the Mortgage Loans (except that an entity that previously financed the Seller’s ownership of the Mortgage Loans may be entitled to a fee to release its security interest in the Mortgage Loans, which fee shall have been paid and which security interest shall have been released on or prior to the Closing Date);
(xi) There is no litigation currently pending or, to the best of the Seller’s knowledge without independent investigation, threatened against the Seller that would reasonably be expected to adversely affect the transfer of the Mortgage Loans, the issuance of the Certificates or the execution, delivery, performance delivery or enforceability of this Agreement, Agreement or that would result in a material adverse change in the financial condition ability of the Seller; and
(xii) The information set forth in Seller to service the applicable part Mortgage Loans or the Seller to perform any of the Closing Schedule relating to the existence of a Prepayment Charge 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 its other obligations hereunder in accordance with its the terms upon the mortgagor’s full and voluntary principal prepayment under applicable law, 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; (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 under applicable lawhereof.
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (Asset-Backed Pass-Through Certificates, Series 2005-R4), Pooling and Servicing Agreement (Ameriquest Mortgage Securities Inc., Asset-Backed Pass-Through Certificates, Series 2005-R6), Pooling and Servicing Agreement (Ameriquest Mortgage Securities Inc., Asset-Backed Pass-Through Certificates, Series 2005-R5)
Representations, Warranties and Covenants of the Seller. The Seller hereby represents and warrants to the Purchaser, as of Purchaser with respect to the date hereof and Mortgage Loans as of the Closing Date, and covenants, thatDate or as of such date specifically provided herein:
(i) The Seller is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware corporation with full corporate power and authority is duly authorized and qualified to conduct its transact any and all business as presently contemplated by this Agreement to be conducted by it the Seller in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent material necessary to ensure its ability to enforce each Mortgage Loan and to service the consummation Mortgage Loans in accordance with the terms of the transactions contemplated herein. The Agreement has been duly authorized, executed Pooling and delivered by the Seller. Servicing Agreement;
(ii) The Seller had the full corporate power and authority to own the originate, hold and sell each Mortgage Loans and to transfer and convey the Mortgage Loans to the Purchaser Loan and has the full corporate power and authority to execute service each Mortgage Loan, and deliverto execute, engage in deliver and perform, and to enter into and consummate the transactions contemplated by, by this Agreement and perform and observe the terms and conditions of this Agreement;
(ii) The Seller has duly authorized by all necessary corporate action on the part of the Seller the execution, delivery and performance of this Agreement, has duly executed and delivered this Agreement, ; and this Agreement, assuming the due authorization, execution and delivery thereof by the Purchaser, constitutes a legal, valid and binding obligation of the Seller, enforceable against it the Seller in accordance with its terms terms, except as to the extent that (a) the enforceability thereof may be limited by bankruptcy, insolvency or reorganization or by general principles insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally and (b) the remedy of equityspecific 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, execution and delivery and performance of this Agreement by the Seller, the servicing of the Mortgage Loans by the Seller (x) does not conflict under the Pooling and Servicing Agreement, 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 Seller and will not conflict with, does not breach and will not (A) result in a breach of and does not constitute and will not constitute a default (or an event, which with notice or lapse of time or both, would constitute a default) under (A) any terms or provisions of the organizational documents of the Seller, (B) any term or provision of the charter or by-laws of the Seller 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, contract, agreement or instrument or indenture, to which the Seller is a party or by which the Seller or any of its property is it may be bound, or (C) any lawstatute, rule, regulation, order, judgment, writ, injunction order or decree regulation applicable to the Seller of any court court, regulatory body, administrative agency or governmental authority body having jurisdiction over the Seller; and the Seller 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 Seller's knowledge, would in the future materially and adversely affect, (x) the ability of the Seller to perform its property and obligations under this Agreement or (y) does not create the business, operations, financial condition, properties or impose and will not result in the creation or imposition of any lien, charge or encumbrance (other than any created hereby in favor assets of the Purchaser and its assignees) which would have Seller taken as a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loanswhole;
(iv) No consent, approval, authorization or order of, registration of any court or filing with, governmental agency or notice on behalf of the Seller to any governmental authority or court body is required, under federal laws or the laws of the State of New York, required for the execution, delivery and performance by the Seller of, or compliance by the Seller with, this Agreement or the consummation by of the transactions contemplated hereby, or if any such consent, approval, authorization or order is required, the Seller of any other transaction contemplated hereby and by has obtained the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificatessame;
(v) The Seller is not an approved originator/servicer for Fannie Mae or Freddie Max xx xoxx stanxxxx xxd is a HUD approved mortgagee pursuant to Section 203 and Section 211 of the National Housing Act; and
(vi) Except as otherwise disclosed in violation ofthe Prospectus Supplement, and the execution and delivery of this Agreement by no litigation is pending against the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over the Seller or its assets, which violation might have consequences that would materially and adversely affect the condition (financial or otherwise) or the operation of the Seller or its assets or might have consequences that would materially and adversely affect the performance of its obligations and duties hereunder;
(vi) The Seller 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) Immediately prior to the sale of the Mortgage Loans to the Purchaser as herein contemplated, the Seller was the owner of the related Mortgage and the indebtedness evidenced by the related Mortgage Note, and, upon the payment to the Seller of the Purchase Price, in the event that the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereof;
(viii) There are no actions or proceedings against, or investigations known to it of, the Seller before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans by the Seller or the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by the Seller of its obligations under, or validity or enforceability of, this Agreement;
(ix) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;
(x) The Seller has not dealt with any broker, investment banker, agent or other person, except for the Purchaser or any of its affiliates, that may be entitled to any commission or compensation in connection with the sale of the Mortgage Loans (except that an entity that previously financed the Seller’s ownership of the Mortgage Loans may be entitled to a fee to release its security interest in the Mortgage Loans, which fee shall have been paid and which security interest shall have been released on or prior to the Closing Date);
(xi) There is no litigation currently pending or, to the best of the Seller’s knowledge without independent investigation, threatened against the Seller that would reasonably be expected to adversely affect the transfer of the Mortgage Loans, the issuance of the Certificates or the execution, delivery, performance delivery or enforceability of this Agreement, Agreement or that would result in a material adverse change in the financial condition ability of the Seller; and
(xii) The information set forth in Seller to service the applicable part Mortgage Loans or to perform any of the Closing Schedule relating to the existence of a Prepayment Charge 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 its other obligations hereunder in accordance with its the terms upon the mortgagor’s full and voluntary principal prepayment under applicable law, 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; (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 under applicable lawhereof.
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (Asset-Backed Pass-Through Certificates Series 2004-R2), Pooling and Servicing Agreement (Asset-Backed Pass-Through Certificates, Series 2004-R5), Pooling and Servicing Agreement (Ameriquest Mortgage Sec Inc Asset Bk Pas THR Cert Se 2004 R3)
Representations, Warranties and Covenants of the Seller. The Seller hereby represents and warrants to the Purchaser, as of the date hereof and as of the Closing Date, and covenants, that:
(i) The Seller is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware corporation with full corporate power and authority is duly authorized and qualified to conduct its transact any and all business as presently contemplated by this Agreement to be conducted by it the Seller in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent material necessary to ensure the consummation ability of the transactions contemplated herein. The Agreement has been duly authorized, executed Master Servicer to enforce each Mortgage Loan and delivered by to service the Seller. Mortgage Loans in accordance with the terms of the Pooling and Servicing Agreement;
(ii) The Seller had the full corporate power and authority to own the hold and sell each Mortgage Loans and to transfer and convey the Mortgage Loans to the Purchaser Loan and has the full corporate power and authority to execute service each Mortgage Loan, and deliverto execute, engage in deliver and perform, and to enter into and consummate the transactions contemplated by, by this Agreement and perform and observe the terms and conditions of this Agreement;
(ii) The Seller has duly authorized by all necessary corporate action on the part of the Seller the execution, delivery and performance of this Agreement, ; this Agreement has been duly executed and delivered this Agreement, by the Seller; and this Agreement, assuming the due authorization, execution and delivery thereof by the Purchaser, constitutes a legal, valid and binding obligation of the Seller, enforceable against it the Seller in accordance with its terms terms, except as to the extent that (a) the enforceability thereof may be limited by bankruptcy, insolvency or reorganization or by general principles insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally and (b) the remedy of equityspecific 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, execution and delivery and performance of this Agreement by the Seller, the servicing of the Mortgage Loans by the Seller (x) does not conflict under the Pooling and Servicing Agreement, 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 Seller and will not conflict with, does not breach and will not (A) result in a breach of and does not constitute and will not constitute a default (or an event, which with notice or lapse of time or both, would constitute a default) under (A) any terms or provisions of the organizational documents of the Seller, (B) any term or provision of the charter or by-laws of the Seller 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, contract, agreement or instrument or indenture, to which the Seller is a party or by which the Seller or any of its property is it may be bound, or (C) any lawstatute, rule, regulation, order, judgment, writ, injunction order or decree regulation applicable to the Seller of any court court, regulatory body, administrative agency or governmental authority body having jurisdiction over the Seller; and the Seller 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 Seller's knowledge, would in the future materially and adversely affect, (x) the ability of the Seller to perform its property and obligations under this Agreement or (y) does not create the business, operations, financial condition, properties or impose and will not result in the creation or imposition of any lien, charge or encumbrance (other than any created hereby in favor assets of the Purchaser and its assignees) which would have Seller taken as a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loanswhole;
(iv) No consent, approval, authorization or order of, registration of any court or filing with, governmental agency or notice on behalf of the Seller to any governmental authority or court body is required, under federal laws or the laws of the State of New York, required for the execution, delivery and performance by the Seller of, or compliance by the Seller with, this Agreement or the consummation by of the transactions contemplated hereby, or if any such consent, approval, authorization or order is required, the Seller of any other transaction contemplated hereby and by has obtained the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificatessame;
(v) The Seller is not an approved originator/servicer for Fannie Mae or Freddie Mac in violation ofgxxx xxaxxxng axx xx x HUD approved mortgagee pursuant to Section 203 and Section 211 of the National Housing Act; and
(vi) Except as otherwise disclosed in the Prospectus Supplement, and the execution and delivery of this Agreement by no litigation is pending against the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over the Seller or its assets, which violation might have consequences that would materially and adversely affect the condition (financial or otherwise) or the operation of the Seller or its assets or might have consequences that would materially and adversely affect the performance of its obligations and duties hereunder;
(vi) The Seller 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) Immediately prior to the sale of the Mortgage Loans to the Purchaser as herein contemplated, the Seller was the owner of the related Mortgage and the indebtedness evidenced by the related Mortgage Note, and, upon the payment to the Seller of the Purchase Price, in the event that the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereof;
(viii) There are no actions or proceedings against, or investigations known to it of, the Seller before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans by the Seller or the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by the Seller of its obligations under, or validity or enforceability of, this Agreement;
(ix) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;
(x) The Seller has not dealt with any broker, investment banker, agent or other person, except for the Purchaser or any of its affiliates, that may be entitled to any commission or compensation in connection with the sale of the Mortgage Loans (except that an entity that previously financed the Seller’s ownership of the Mortgage Loans may be entitled to a fee to release its security interest in the Mortgage Loans, which fee shall have been paid and which security interest shall have been released on or prior to the Closing Date);
(xi) There is no litigation currently pending or, to the best of the Seller’s knowledge without independent investigation, threatened against the Seller that would reasonably be expected to adversely affect the transfer of the Mortgage Loans, the issuance of the Certificates or the execution, delivery, performance delivery or enforceability of this Agreement, Agreement or that would result in a material adverse change in the financial condition ability of the Seller; and
(xii) The information set forth in Seller to service the applicable part Mortgage Loans or the Seller to perform any of the Closing Schedule relating to the existence of a Prepayment Charge 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 its other obligations hereunder in accordance with its the terms upon the mortgagor’s full and voluntary principal prepayment under applicable law, 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; (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 under applicable lawhereof.
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 Asset Bcked Pass Through Certs Ser 2004-W4)
Representations, Warranties and Covenants of the Seller. The Seller Seller, hereby represents represents, warrants and warrants covenants to the PurchaserIndenture Trustee, the Trust, the Sponsor, the Backup Servicer, the Note Insurer and the Master Servicer that as of the date hereof and of this Agreement or as of the Closing Date, and covenants, thatsuch date specifically provided herein:
(ia) The Seller is a Delaware corporation with full duly organized, validly existing and in good standing under the laws of the State of Delaware.
(b) The Seller has the corporate power and authority to conduct its business as presently conducted by it convey the Mortgage Loans and to the extent material execute, deliver and perform, and to the consummation of enter into and consummate the transactions contemplated herein. The by this Agreement.
(c) This Agreement has been duly and validly authorized, executed and delivered by the Seller. The , all requisite corporate action having been taken, and, assuming the due authorization, execution and delivery hereof by the other parties hereto, constitutes or will constitute the legal, valid and binding agreement of the Seller, enforceable against the Seller had in accordance with its terms, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting the full corporate power rights of creditors generally, and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law).
(d) No consent, approval, authorization or order of or registration or filing with, or notice to, any governmental authority to own or court is required for the Mortgage Loans execution, delivery and to transfer and convey performance of or compliance by the Mortgage Loans to Seller with this Agreement or the Purchaser and has consummation by the full corporate power and authority to execute and deliver, engage in Seller of any of the transactions contemplated byhereby, except as have been made on or prior to the Closing Date.
(e) None of the execution and perform and observe delivery of this Agreement, the consummation of the transactions contemplated hereby or thereby, or the fulfillment of or compliance with the terms and conditions of this Agreement;
, (iii) The Seller has duly authorized conflicts or will conflict with or results or will result in a breach of, or constitutes or will constitute a default or results or will result in an acceleration under (A) the execution, delivery and performance articles of this Agreement, has duly executed and delivered this Agreement, and this Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a legal, valid and binding obligation incorporation or bylaws of the Seller, enforceable against it in accordance with its terms except as the enforceability thereof may be limited by bankruptcy, insolvency or reorganization or by general principles of equity;
(iii) The execution, delivery and performance of this Agreement by the Seller (x) does not conflict and will not conflict with, does not breach and will not result in a breach of and does not constitute and will not constitute a default (or an event, which with notice or lapse of time or both, would constitute a default) under (A) any terms or provisions of the organizational documents of the Seller, (B) of any term term, condition or provision of any material agreement, contract, instrument or indenture, deed of trust, contract or other agreement or instrument to which the Seller is a party or by which the Seller or any of its property subsidiaries is a party or by which it or any of its subsidiaries is bound, ; (ii) results or (C) will result in a violation of any law, rule, regulation, order, judgment, writ, injunction judgment or decree applicable to the Seller of any court or governmental authority having jurisdiction over the Seller or any of its property and subsidiaries; or (yiii) does not create or impose and will not result results in the creation or imposition of any lien, charge or encumbrance (other than any created hereby in favor of the Purchaser and its assignees) which would have a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loans;.
(iv) No consent, approval, authorization or order of, registration or filing with, or notice on behalf of the Seller to any governmental authority or court is required, under federal laws or the laws of the State of New York, for the execution, delivery and performance by the Seller of, or compliance by the Seller with, this Agreement or the consummation by the Seller of any other transaction contemplated hereby and by the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificates;
(v) The Seller is not in violation of, and the execution and delivery of this Agreement by the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over the Seller or its assets, which violation might have consequences that would materially and adversely affect the condition (financial or otherwise) or the operation of the Seller or its assets or might have consequences that would materially and adversely affect the performance of its obligations and duties hereunder;
(vi) The Seller 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) Immediately prior to the sale of the Mortgage Loans to the Purchaser as herein contemplated, the Seller was the owner of the related Mortgage and the indebtedness evidenced by the related Mortgage Note, and, upon the payment to the Seller of the Purchase Price, in the event that the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereof;
(viiif) There are no actions actions, suits or proceedings against, before or against or investigations known to it of, the Seller pending, or to the knowledge of the Seller, threatened, before any court, administrative agency or other tribunal (A) that tribunal, and no notice of any such action, which, in the Seller’s reasonable judgment, might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans by the Seller or the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by the Seller of its obligations underunder this Agreement, or the validity or enforceability of, this Agreement;
(ix) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;
(x) The Seller has not dealt with any broker, investment banker, agent or other person, except for the Purchaser or any of its affiliates, that may be entitled to any commission or compensation in connection with the sale of the Mortgage Loans (except that an entity that previously financed the Seller’s ownership of the Mortgage Loans may be entitled to a fee to release its security interest in the Mortgage Loans, which fee shall have been paid and which security interest shall have been released on or prior to the Closing Date);
(xi) There is no litigation currently pending or, to the best of the Seller’s knowledge without independent investigation, threatened against the Seller that would reasonably be expected to adversely affect the transfer of the Mortgage Loans, the issuance of the Certificates or the execution, delivery, performance or enforceability of this Agreement, or that would result in a material adverse change in the financial condition of the Seller; and.
(xiig) The information Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or governmental agency that may materially and adversely affect its performance hereunder. It is understood and agreed that the representations, warranties and covenants set forth in the applicable part this Section 3.05 shall survive delivery of the Closing Schedule relating respective Indenture Trustee’s Mortgage Files to the existence of a Prepayment Charge is complete, true Indenture Trustee 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 upon the mortgagor’s full and voluntary principal prepayment under applicable law, except shall inure to the extent that: (1) benefit of the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ rights; (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 under applicable lawIndenture Trustee.
Appears in 3 contracts
Samples: Sale and Servicing Agreement (Accredited Mortgage Loan Trust 2003-3), Sale and Servicing Agreement (Accredited Mortgage Loan Trust 2003-2), Sale and Servicing Agreement (Accredited Home Lenders Inc Mortgage Loan Trust 2004-1)
Representations, Warranties and Covenants of the Seller. The Seller Seller, hereby represents represents, warrants and warrants covenants to the PurchaserIndenture Trustee, the Trust, the Sponsor, the Backup Servicer, the Note Insurer and the Master Servicer that as of the date hereof and of this Agreement or as of the Closing Date, and covenants, thatsuch date specifically provided herein:
(ia) The Seller is a Delaware corporation with full duly organized, validly existing and in good standing under the laws of the State of Delaware.
(b) The Seller has the corporate power and authority to conduct its business as presently conducted by it convey the Mortgage Loans and to the extent material execute, deliver and perform, and to the consummation of enter into and consummate the transactions contemplated herein. The by this Agreement.
(c) This Agreement has been duly and validly authorized, executed and delivered by the Seller. The , all requisite corporate action having been taken, and, assuming the due authorization, execution and delivery hereof by the other parties hereto, constitutes or will constitute the legal, valid and binding agreement of the Seller, enforceable against the Seller had in accordance with its terms, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting the full corporate power rights of creditors generally, and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law).
(d) No consent, approval, authorization or order of or registration or filing with, or notice to, any governmental authority to own or court is required for the Mortgage Loans execution, delivery and to transfer and convey performance of or compliance by the Mortgage Loans to Seller with this Agreement or the Purchaser and has consummation by the full corporate power and authority to execute and deliver, engage in Seller of any of the transactions contemplated byhereby, except as have been made on or prior to the Closing Date.
(e) None of the execution and perform and observe delivery of this Agreement, the consummation of the transactions contemplated hereby or thereby, or the fulfillment of or compliance with the terms and conditions of this Agreement;
, (iii) The Seller has duly authorized conflicts or will conflict with or results or will result in a breach of, or constitutes or will constitute a default or results or will result in an acceleration under (A) the execution, delivery and performance articles of this Agreement, has duly executed and delivered this Agreement, and this Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a legal, valid and binding obligation incorporation or bylaws of the Seller, enforceable against it in accordance with its terms except as the enforceability thereof may be limited by bankruptcy, insolvency or reorganization or by general principles of equity;
(iii) The execution, delivery and performance of this Agreement by the Seller (x) does not conflict and will not conflict with, does not breach and will not result in a breach of and does not constitute and will not constitute a default (or an event, which with notice or lapse of time or both, would constitute a default) under (A) any terms or provisions of the organizational documents of the Seller, (B) of any term term, condition or provision of any material agreement, contract, instrument or indenture, deed of trust, contract or other agreement or instrument to which the Seller is a party or by which the Seller or any of its property subsidiaries is a party or by which it or any of its subsidiaries is bound, ; (ii) results or (C) will result in a violation of any law, rule, regulation, order, judgment, writ, injunction judgment or decree applicable to the Seller of any court or governmental authority having jurisdiction over the Seller or any of its property and subsidiaries; or (yiii) does not create or impose and will not result results in the creation or imposition of any lien, charge or encumbrance (other than any created hereby in favor of the Purchaser and its assignees) which would have a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loans;.
(iv) No consent, approval, authorization or order of, registration or filing with, or notice on behalf of the Seller to any governmental authority or court is required, under federal laws or the laws of the State of New York, for the execution, delivery and performance by the Seller of, or compliance by the Seller with, this Agreement or the consummation by the Seller of any other transaction contemplated hereby and by the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificates;
(v) The Seller is not in violation of, and the execution and delivery of this Agreement by the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over the Seller or its assets, which violation might have consequences that would materially and adversely affect the condition (financial or otherwise) or the operation of the Seller or its assets or might have consequences that would materially and adversely affect the performance of its obligations and duties hereunder;
(vi) The Seller 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) Immediately prior to the sale of the Mortgage Loans to the Purchaser as herein contemplated, the Seller was the owner of the related Mortgage and the indebtedness evidenced by the related Mortgage Note, and, upon the payment to the Seller of the Purchase Price, in the event that the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereof;
(viiif) There are no actions actions, suits or proceedings against, before or against or investigations known to it of, the Seller pending, or to the knowledge of the Seller, threatened, before any court, administrative agency or other tribunal (A) that tribunal, and no notice of any such action, which, in the Seller's reasonable judgment, might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans by the Seller or the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by the Seller of its obligations underunder this Agreement, or the validity or enforceability of, this Agreement;
(ix) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;
(x) The Seller has not dealt with any broker, investment banker, agent or other person, except for the Purchaser or any of its affiliates, that may be entitled to any commission or compensation in connection with the sale of the Mortgage Loans (except that an entity that previously financed the Seller’s ownership of the Mortgage Loans may be entitled to a fee to release its security interest in the Mortgage Loans, which fee shall have been paid and which security interest shall have been released on or prior to the Closing Date);
(xi) There is no litigation currently pending or, to the best of the Seller’s knowledge without independent investigation, threatened against the Seller that would reasonably be expected to adversely affect the transfer of the Mortgage Loans, the issuance of the Certificates or the execution, delivery, performance or enforceability of this Agreement, or that would result in a material adverse change in the financial condition of the Seller; and.
(xiig) The information Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or governmental agency that may materially and adversely affect its performance hereunder. It is understood and agreed that the representations, warranties and covenants set forth in the applicable part this Section 3.05 shall survive delivery of the Closing Schedule relating respective Indenture Trustee's Mortgage Files to the existence of a Prepayment Charge is complete, true Indenture Trustee 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 upon the mortgagor’s full and voluntary principal prepayment under applicable law, except shall inure to the extent that: (1) benefit of the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ rights; (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 under applicable lawIndenture Trustee.
Appears in 3 contracts
Samples: Sale and Servicing Agreement (Accredited Mort Loan Trust Asset Back Notes Series 2003-1), Sale and Servicing Agreement (Accredited Home Lenders Accredited Mort Loan Trust 2002-2), Sale and Servicing Agreement (Accredited Home Lenders Accredited Mort Loan Trust 2002-2)
Representations, Warranties and Covenants of the Seller. (a) The Seller hereby represents and warrants to and for the Purchaser, as benefit of the date hereof and Purchaser as of the Closing Date, and covenants, Date that:
(i) The Seller is a Delaware corporation with full corporate power and authority to conduct its business as presently conducted by it to the extent material to the consummation of the transactions contemplated herein. The Agreement has been national banking association, duly authorized, executed validly existing and delivered by in good standing under the Seller. The Seller had laws of the full corporate power and authority to own the Mortgage Loans and to transfer and convey the Mortgage Loans to the Purchaser and has the full corporate power and authority to execute and deliver, engage in the transactions contemplated by, and perform and observe the terms and conditions United States of this Agreement;America.
(ii) The execution and delivery of this Agreement by the Seller, and the performance of Seller's obligations under this Agreement, will not violate the Seller's organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets, which default or breach, in the Seller's good faith and commercially reasonable judgment is likely to affect materially and adversely either the ability of the Seller to perform its obligations under this Agreement or its financial condition.
(iii) The Seller has the full power and authority to enter into and perform its obligations under this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement, and this .
(iv) This Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a legalvalid, valid legal and binding obligation of the Seller, enforceable against it the Seller in accordance with its the terms except as the enforceability thereof may be limited by hereof, subject to (A) applicable bankruptcy, insolvency or reorganization or by insolvency, reorganization, fraudulent transfer, moratorium and other laws affecting the enforcement of creditors' rights generally and (B) general principles of equity;
(iii) The execution, delivery and performance regardless of this Agreement by the Seller (x) does not conflict and will not conflict with, does not breach and will not result whether such enforcement is considered in a breach of and does not constitute and will not constitute a default (proceeding in equity or an event, which with notice or lapse of time or both, would constitute a default) under (A) any terms or provisions of the organizational documents of the Seller, (B) any term or provision of any material agreement, contract, instrument or indenture, to which the Seller is a party or by which the Seller or any of its property is bound, or (C) any at law, rule, regulation, order, judgment, writ, injunction or decree of any court or governmental authority having jurisdiction over the Seller or any of its property and (y) does not create or impose and will not result in the creation or imposition of any lien, charge or encumbrance (other than any created hereby in favor of the Purchaser and its assignees) which would have a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loans;
(iv) No consent, approval, authorization or order of, registration or filing with, or notice on behalf of the Seller to any governmental authority or court is required, under federal laws or the laws of the State of New York, for the execution, delivery and performance by the Seller of, or compliance by the Seller with, this Agreement or the consummation by the Seller of any other transaction contemplated hereby and by the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificates;.
(v) The Seller is not in violation of, and the its execution and delivery of this Agreement by the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect toof, any law, any order or decree of any court or arbiter, or any order order, regulation or regulation demand of any federal, state, municipal state or local governmental agency having jurisdiction over the Seller or its assetsregulatory authority, which violation might have consequences that would violation, in the Seller's good faith and reasonable judgment, is likely to affect materially and adversely affect either the condition (financial or otherwise) or the operation ability of the Seller or its assets or might have consequences that would materially and adversely affect the performance of to perform its obligations and duties hereunder;under this Agreement or the financial condition of the Seller.
(vi) The Seller does not believe, nor does it have any reason or cause No litigation is pending with regard to believe, that it cannot perform each and every covenant contained in this Agreement;
(vii) Immediately prior to the sale of the Mortgage Loans to the Purchaser as herein contemplated, which the Seller was the owner has received service of the related Mortgage and the indebtedness evidenced by the related Mortgage Note, and, upon the payment to the Seller of the Purchase Price, in the event that the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereof;
(viii) There are no actions or proceedings against, or investigations known to it of, the Seller before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans by the Seller or the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by the Seller of its obligations under, or validity or enforceability of, this Agreement;
(ix) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;
(x) The Seller has not dealt with any broker, investment banker, agent or other person, except for the Purchaser or any of its affiliates, that may be entitled to any commission or compensation in connection with the sale of the Mortgage Loans (except that an entity that previously financed the Seller’s ownership of the Mortgage Loans may be entitled to a fee to release its security interest in the Mortgage Loans, which fee shall have been paid and which security interest shall have been released on or prior to the Closing Date);
(xi) There is no litigation currently pending process or, to the best of the Seller’s knowledge without independent investigation's knowledge, threatened against the Seller that which if determined adversely to the Seller would reasonably be expected to adversely affect prohibit the transfer of the Mortgage Loans, the issuance of the Certificates or the execution, delivery, performance or enforceability of Seller from entering into this Agreement, or that in the Seller's good faith and reasonable judgment, would result in a material adverse change in be likely to materially and adversely affect either the ability of the Seller to perform its obligations under this Agreement or the financial condition of the Seller; and.
(xiivii) No consent, approval, authorization or order of, or filing or registration with, any state or federal court or governmental agency or body is required for the consummation by the Seller of the transactions contemplated herein, except for those consents, approvals, authorizations and orders that previously have been obtained and those filings and registrations that previously have been completed, and except for those filings and recordings of Mortgage Loan documents and assignments thereof that are contemplated by the Pooling and Servicing Agreement to be completed after the Closing Date.
(b) The information Seller hereby makes the representations and warranties contained in Schedule II (subject to any exceptions thereto listed on Schedule IIA) to and for the benefit of the Purchaser as of the Closing Date (or as of such other dates specifically provided in the particular representation and warranty), with respect to (and solely with respect to) each Mortgage Loan.
(c) Upon discovery of any Material Breach or Material Document Defect, the Purchaser or its designee shall notify the Seller thereof in writing and request that the Seller correct or cure such Material Breach or Material Document Defect. Within 90 days of the earlier of discovery or receipt of written notice by the Seller that there has been a Material Breach or a Material Document Defect (such 90-day period, the "Initial Resolution Period"), the Seller shall (i) cure such Material Breach or Material Document Defect, as the case may be, in all material respects or (ii) repurchase each affected Mortgage Loan or REO Loan (each, a "Defective Mortgage Loan") at the related Purchase Price in accordance with the terms hereof and, if applicable, the terms of the Pooling and Servicing Agreement, with payment to be made in accordance with the reasonable directions of the Purchaser; provided that if the Seller certifies in writing to the Purchaser (i) that, as evidenced by an accompanying Opinion of Counsel, any such Material Breach or Material Document Defect, as the case may be, does not and will not cause the Defective Mortgage Loan, to fail to be a "qualified mortgage" within the meaning of Section 860G(a)(3) of the Code, (ii) that such Material Breach or Material Document Defect, as the case may be, is capable of being corrected or cured but not within the applicable Initial Resolution Period, (iii) that the Seller has commenced and is diligently proceeding with the cure of such Material Breach or Material Document Defect, as the case may be, within the applicable Initial Resolution Period, and (iv) that the Seller anticipates that such Material Breach or Material Document Defect, as the case may be, will be corrected or cured within an additional period not to exceed the Resolution Extension Period (as defined below), then the Seller shall have an additional period equal to the applicable Resolution Extension Period to complete such correction or cure or, failing such, to repurchase the Defective Mortgage Loan; and provided, further, that, if the Seller's obligation to repurchase any Defective Mortgage Loan as a result of a Material Breach or Material Document Defect arises within the three-month period commencing on the Closing Date (or within the two-year period commencing on the Closing Date if the Defective Mortgage Loan is a "defective obligation" within the meaning of Section 860G(a)(4)(B)(ii) of the Code and Treasury Regulations Section 1.860G-2(f)), and if the Defective Mortgage Loan is still subject to the Pooling and Servicing Agreement, the Seller may, at its option, in lieu of repurchasing such Defective Mortgage Loan (but, in any event, no later than such repurchase would have to have been completed), (i) replace such Defective Mortgage Loan with one or more substitute mortgage loans that individually and collectively satisfy the requirements of the definition of "Qualifying Substitute Mortgage Loan" set forth in the applicable part Pooling and Servicing Agreement, and (ii) pay any corresponding Substitution Shortfall Amount, such substitution and payment to be effected in accordance with the terms of the Closing Schedule relating Pooling and Servicing Agreement. Any such repurchase or replacement of a Defective Mortgage Loan shall be on a whole loan, servicing released basis. The Seller shall have no obligation to monitor the Mortgage Loans regarding the existence of a Prepayment Charge is completeMaterial Breach or Material Document Defect, true and correct in all material respects at but if the date Seller discovers a Material Breach or dates respecting which such information is furnished and each Prepayment Charge is permissible and enforceable in accordance Material Document Defect with its terms upon respect to a Mortgage Loan, it will notify the mortgagor’s full and voluntary principal prepayment under applicable law, 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; (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 under applicable lawPurchaser.
Appears in 3 contracts
Samples: Mortgage Loan Purchase and Sale Agreement (Banc of America Commercial Mortgage Inc., Series 2006-2), Mortgage Loan Purchase and Sale Agreement (Banc of America Commercial Mortgage Inc., Series 2006-3), Mortgage Loan Purchase and Sale Agreement (Banc of America Commercial Mortgage Inc., Series 2006-5)
Representations, Warranties and Covenants of the Seller. (a) The Seller hereby represents and warrants to and for the Purchaser, as benefit of the date hereof and Purchaser as of the Closing Date, and covenants, Date that:
(i) The Seller is a Delaware corporation with full corporate power and authority to conduct its business as presently conducted by it to the extent material to the consummation of the transactions contemplated herein. The Agreement has been national banking association, duly authorized, executed validly existing and delivered by in good standing under the Seller. The Seller had laws of the full corporate power and authority to own the Mortgage Loans and to transfer and convey the Mortgage Loans to the Purchaser and has the full corporate power and authority to execute and deliver, engage in the transactions contemplated by, and perform and observe the terms and conditions United States of this Agreement;America.
(ii) The execution and delivery of this Agreement by the Seller, and the performance of Seller’s obligations under this Agreement, will not violate the Seller’s organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets, which default or breach, in the Seller’s good faith and commercially reasonable judgment is likely to affect materially and adversely either the ability of the Seller to perform its obligations under this Agreement or its financial condition.
(iii) The Seller has the full power and authority to enter into and perform its obligations under this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement, and this .
(iv) This Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a legalvalid, valid legal and binding obligation of the Seller, enforceable against it the Seller in accordance with its the terms except as the enforceability thereof may be limited by hereof, subject to (A) applicable bankruptcy, insolvency or reorganization or by insolvency, reorganization, fraudulent transfer, moratorium and other laws affecting the enforcement of creditors’ rights generally and (B) general principles of equity;
(iii) The execution, delivery and performance regardless of this Agreement by the Seller (x) does not conflict and will not conflict with, does not breach and will not result whether such enforcement is considered in a breach of and does not constitute and will not constitute a default (proceeding in equity or an event, which with notice or lapse of time or both, would constitute a default) under (A) any terms or provisions of the organizational documents of the Seller, (B) any term or provision of any material agreement, contract, instrument or indenture, to which the Seller is a party or by which the Seller or any of its property is bound, or (C) any at law, rule, regulation, order, judgment, writ, injunction or decree of any court or governmental authority having jurisdiction over the Seller or any of its property and (y) does not create or impose and will not result in the creation or imposition of any lien, charge or encumbrance (other than any created hereby in favor of the Purchaser and its assignees) which would have a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loans;
(iv) No consent, approval, authorization or order of, registration or filing with, or notice on behalf of the Seller to any governmental authority or court is required, under federal laws or the laws of the State of New York, for the execution, delivery and performance by the Seller of, or compliance by the Seller with, this Agreement or the consummation by the Seller of any other transaction contemplated hereby and by the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificates;.
(v) The Seller is not in violation of, and the its execution and delivery of this Agreement by the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect toof, any law, any order or decree of any court or arbiter, or any order order, regulation or regulation demand of any federal, state, municipal state or local governmental agency having jurisdiction over the Seller or its assetsregulatory authority, which violation might have consequences that would violation, in the Seller’s good faith and reasonable judgment, is likely to affect materially and adversely affect either the condition (financial or otherwise) or the operation ability of the Seller or its assets or might have consequences that would materially and adversely affect the performance of to perform its obligations and duties hereunder;under this Agreement or the financial condition of the Seller.
(vi) The Seller does not believe, nor does it have any reason or cause No litigation is pending with regard to believe, that it cannot perform each and every covenant contained in this Agreement;
(vii) Immediately prior to the sale of the Mortgage Loans to the Purchaser as herein contemplated, which the Seller was the owner has received service of the related Mortgage and the indebtedness evidenced by the related Mortgage Note, and, upon the payment to the Seller of the Purchase Price, in the event that the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereof;
(viii) There are no actions or proceedings against, or investigations known to it of, the Seller before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans by the Seller or the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by the Seller of its obligations under, or validity or enforceability of, this Agreement;
(ix) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;
(x) The Seller has not dealt with any broker, investment banker, agent or other person, except for the Purchaser or any of its affiliates, that may be entitled to any commission or compensation in connection with the sale of the Mortgage Loans (except that an entity that previously financed the Seller’s ownership of the Mortgage Loans may be entitled to a fee to release its security interest in the Mortgage Loans, which fee shall have been paid and which security interest shall have been released on or prior to the Closing Date);
(xi) There is no litigation currently pending process or, to the best of the Seller’s knowledge without independent investigationknowledge, threatened against the Seller that which if determined adversely to the Seller would reasonably be expected to adversely affect prohibit the transfer of the Mortgage Loans, the issuance of the Certificates or the execution, delivery, performance or enforceability of Seller from entering into this Agreement, or that in the Seller’s good faith and reasonable judgment, would result in a material adverse change in be likely to materially and adversely affect either the ability of the Seller to perform its obligations under this Agreement or the financial condition of the Seller; and.
(xiivii) No consent, approval, authorization or order of, or filing or registration with, any state or federal court or governmental agency or body is required for the consummation by the Seller of the transactions contemplated herein, except for those consents, approvals, authorizations or orders that previously have been obtained and those filings and registrations that previously have been completed, and except for those filings and recordings of loan documents and assignments thereof that are contemplated by the Pooling and Servicing Agreement to be completed after the Closing Date.
(b) The information Seller hereby makes the representations and warranties contained in Schedule II (subject to any exceptions thereto listed on Schedule IIA) to and for the benefit of the Purchaser as of the Closing Date (or as of such other dates specifically provided in the particular representation and warranty), with respect to (and solely with respect to) each Mortgage Loan.
(c) Upon discovery of any Material Breach or Material Document Defect, the Purchaser or its designee shall notify the Seller thereof in writing and request that the Seller correct or cure such Material Breach or Material Document Defect. Within [__] days of the earlier of discovery or receipt of written notice by the Seller that there has been a Material Breach or a Material Document Defect (such [__]-day period, the “Initial Resolution Period”), the Seller shall (i) cure such Material Breach or Material Document Defect, as the case may be, in all material respects or (ii) repurchase each affected Mortgage Loan or REO Loan (each, a “Defective Mortgage Loan”) at the related Purchase Price in accordance with the terms hereof and, if applicable, the terms of the Pooling and Servicing Agreement, with payment to be made in accordance with the reasonable directions of the Purchaser; provided that if the Seller certifies in writing to the Purchaser (i) that, as evidenced by an accompanying Opinion of Counsel, any such Material Breach or Material Document Defect, as the case may be, does not and will not cause the Defective Mortgage Loan, to fail to be a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code, (ii) that such Material Breach or Material Document Defect, as the case may be, is capable of being corrected or cured but not within the applicable Initial Resolution Period, (iii) that the Seller has commenced and is diligently proceeding with the cure of such Material Breach or Material Document Defect, as the case may be, within the applicable Initial Resolution Period, and (iv) that the Seller anticipates that such Material Breach or Material Document Defect, as the case may be, will be corrected or cured within an additional period not to exceed the Resolution Extension Period (as defined below), then the Seller shall have an additional period equal to the applicable Resolution Extension Period to complete such correction or cure or, failing such, to repurchase the Defective Mortgage Loan; and provided, further, that, if the Seller’s obligation to repurchase any Defective Mortgage Loan as a result of a Material Breach or Material Document Defect arises within the three-month period commencing on the Closing Date (or within the two-year period commencing on the Closing Date if the Defective Mortgage Loan is a “defective obligation” within the meaning of Section 860G(a)(4)(B)(ii) of the Code and Treasury Regulations Section 1.860G-2(f)), and if the Defective Mortgage Loan is still subject to the Pooling and Servicing Agreement, the Seller may, at its option, in lieu of repurchasing such Defective Mortgage Loan (but, in any event, no later than such repurchase would have to have been completed), (i) replace such Defective Mortgage Loan with one or more substitute mortgage loans that individually and collectively satisfy the requirements of the definition of “Qualifying Substitute Mortgage Loan” set forth in the applicable part Pooling and Servicing Agreement, and (ii) pay any corresponding Substitution Shortfall Amount, such substitution and payment to be effected in accordance with the terms of the Closing Schedule relating Pooling and Servicing Agreement. Any such repurchase or replacement of a Defective Mortgage Loan shall be on a whole loan, servicing released basis. The Seller shall have no obligation to monitor the Mortgage Loans regarding the existence of a Prepayment Charge is completeMaterial Breach or Material Document Defect, true and correct in all material respects at but if the date Seller discovers a Material Breach or dates respecting which such information is furnished and each Prepayment Charge is permissible and enforceable in accordance Material Document Defect with its terms upon respect to a Mortgage Loan, it will notify the mortgagor’s full and voluntary principal prepayment under applicable law, 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; (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 under applicable lawPurchaser.
Appears in 2 contracts
Samples: Mortgage Loan Purchase and Sale Agreement (Banc of America Merrill Lynch Commercial Mortgage Inc.), Mortgage Loan Purchase and Sale Agreement (Banc of America Merrill Lynch Commercial Mortgage Inc.)
Representations, Warranties and Covenants of the Seller. The Seller hereby represents and warrants to the Purchaser, as of the date hereof and as of the Closing Date, and covenants, that:
(i) The Seller is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware corporation with full corporate power and authority is duly authorized and qualified to conduct its transact any and all business as presently contemplated by this Agreement to be conducted by it the Seller in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent material necessary to ensure the consummation ability of the transactions contemplated herein. The Agreement has been duly authorized, executed Master Servicer to enforce each Mortgage Loan and delivered by to service the Seller. Mortgage Loans in accordance with the terms of the Pooling and Servicing Agreement;
(ii) The Seller had the full corporate power and authority to own the hold and sell each Mortgage Loans and to transfer and convey the Mortgage Loans to the Purchaser Loan and has the full corporate power and authority to execute service each Mortgage Loan, and deliverto execute, engage in deliver and perform, and to enter into and consummate the transactions contemplated by, by this Agreement and perform and observe the terms and conditions of this Agreement;
(ii) The Seller has duly authorized by all necessary corporate action on the part of the Seller the execution, delivery and performance of this Agreement, ; this Agreement has been duly executed and delivered this Agreement, by the Seller; and this Agreement, assuming the due authorization, execution and delivery thereof by the Purchaser, constitutes a legal, valid and binding obligation of the Seller, enforceable against it the Seller in accordance with its terms terms, except as to the extent that (a) the enforceability thereof may be limited by bankruptcy, insolvency or reorganization or by general principles insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally and (b) the remedy of equityspecific 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, execution and delivery and performance of this Agreement by the Seller, the servicing of the Mortgage Loans by the Seller (x) does not conflict under the Pooling and Servicing Agreement, 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 Seller and will not conflict with, does not breach and will not (A) result in a breach of and does not constitute and will not constitute a default (or an event, which with notice or lapse of time or both, would constitute a default) under (A) any terms or provisions of the organizational documents of the Seller, (B) any term or provision of the charter or by-laws of the Seller 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, contract, agreement or instrument or indenture, to which the Seller is a party or by which the Seller or any of its property is it may be bound, or (C) any lawstatute, rule, regulation, order, judgment, writ, injunction order or decree regulation applicable to the Seller of any court court, regulatory body, administrative agency or governmental authority body having jurisdiction over the Seller; and the Seller 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 Seller's knowledge, would in the future materially and adversely affect, (x) the ability of the Seller to perform its property and obligations under this Agreement or (y) does not create the business, operations, financial condition, properties or impose and will not result in the creation or imposition of any lien, charge or encumbrance (other than any created hereby in favor assets of the Purchaser and its assignees) which would have Seller taken as a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loanswhole;
(iv) No consent, approval, authorization or order of, registration of any court or filing with, governmental agency or notice on behalf of the Seller to any governmental authority or court body is required, under federal laws or the laws of the State of New York, required for the execution, delivery and performance by the Seller of, or compliance by the Seller with, this Agreement or the consummation by of the transactions contemplated hereby, or if any such consent, approval, authorization or order is required, the Seller of any other transaction contemplated hereby and by has obtained the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificatessame;
(v) The Seller is not an approved originator/servicer for Fannie Mae or Freddie Mac in violation ofxxxx xtxxxing xxx xx a HUD approved mortgagee pursuant to Section 203 and Section 211 of the National Housing Act; and
(vi) Except as otherwise disclosed in the Prospectus Supplement, and the execution and delivery of this Agreement by no litigation is pending against the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over the Seller or its assets, which violation might have consequences that would materially and adversely affect the condition (financial or otherwise) or the operation of the Seller or its assets or might have consequences that would materially and adversely affect the performance of its obligations and duties hereunder;
(vi) The Seller 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) Immediately prior to the sale of the Mortgage Loans to the Purchaser as herein contemplated, the Seller was the owner of the related Mortgage and the indebtedness evidenced by the related Mortgage Note, and, upon the payment to the Seller of the Purchase Price, in the event that the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereof;
(viii) There are no actions or proceedings against, or investigations known to it of, the Seller before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans by the Seller or the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by the Seller of its obligations under, or validity or enforceability of, this Agreement;
(ix) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;
(x) The Seller has not dealt with any broker, investment banker, agent or other person, except for the Purchaser or any of its affiliates, that may be entitled to any commission or compensation in connection with the sale of the Mortgage Loans (except that an entity that previously financed the Seller’s ownership of the Mortgage Loans may be entitled to a fee to release its security interest in the Mortgage Loans, which fee shall have been paid and which security interest shall have been released on or prior to the Closing Date);
(xi) There is no litigation currently pending or, to the best of the Seller’s knowledge without independent investigation, threatened against the Seller that would reasonably be expected to adversely affect the transfer of the Mortgage Loans, the issuance of the Certificates or the execution, delivery, performance delivery or enforceability of this Agreement, Agreement or that would result in a material adverse change in the financial condition ability of the Seller; and
(xii) The information set forth in Seller to service the applicable part Mortgage Loans or the Seller to perform any of the Closing Schedule relating to the existence of a Prepayment Charge 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 its other obligations hereunder in accordance with its the terms upon the mortgagor’s full and voluntary principal prepayment under applicable law, 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; (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 under applicable lawhereof.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Argent Securities Inc Asset Back Pass THR Certs Ser 2004-W6), Pooling and Servicing Agreement (Argent Securities Inc Asset-Backed Pass-Through Certificates Seires 2004-W8)
Representations, Warranties and Covenants of the Seller. The Seller hereby covenants, warrants, and represents as follows:
4.1.1 The Seller will convey to the Purchaser at the closing good and warrants marketable title to said Note and Deed of Trust. The Seller owns the Note and Deed of Trust free and clear of all liens, encumbrances and charges. The Seller presently has such title.
(a) The Seller is currently in full compliance with all Covenants, Conditions and Agreements set forth in the Deed of Trust and further, Covenants and Represents that this Agreement does not violate any such Agreements or Warranties of Seller with Owners of the within described property or others.
4.1.2 Copies of the Seller's Note and Deed of Trust, including all amendments thereto, have been delivered to the Purchaser, as of the date hereof and as of the Closing Datesuch copies are true, complete and covenants, that:correct in every particular.
(i) 4.1.3 The Seller is a Delaware corporation with full corporate has the power to enter into this agreement and authority to conduct carry out its business as presently conducted by it obligations hereunder. No court or other proceedings are necessary to the extent material to authorize the consummation of this agreement and the transactions contemplated hereinhereby. The Agreement This agreement has been duly authorized, executed and delivered by the Seller. The Seller had the full corporate power and authority to own the Mortgage Loans and to transfer and convey the Mortgage Loans to the Purchaser and has the full corporate power and authority to execute and deliver, engage in the transactions contemplated by, and perform and observe the terms and conditions of this Agreement;
(ii) The Seller has duly authorized the execution, delivery and performance of this Agreement, has duly executed and delivered this Agreement, and this Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a legal, valid and binding obligation of the Seller, enforceable against it in accordance with its terms except as the enforceability thereof may be limited by bankruptcy, insolvency or reorganization or by general principles of equity;
(iii) . The execution, delivery execution and performance of this Agreement agreement by the Seller (x) does not conflict and will not conflict withviolate, does not breach and will not or result in a breach of and does not constitute and will not of, or constitute a default (under any judgment, order or an eventdecree to which he may be subject. Neither the execution and delivery of this agreement, which with notice or lapse of time or both, would constitute a default) under (A) any terms or provisions nor the consummation of the organizational documents of transaction contemplated hereby, nor compliance with the Sellerterms and provisions hereof, (B) any term or provision of any material agreement, contract, instrument or indenture, to which the Seller is a party or by which the Seller or any of its property is bound, or (C) any law, rule, regulation, order, judgment, writ, injunction or decree of any court or governmental authority having jurisdiction over the Seller or any of its property and (y) does not create or impose and will not result in the creation or imposition of any lien, charge or encumbrance (other than upon any created hereby in favor of the Purchaser and its assignees) which would have a material adverse effect upon Seller's assets pursuant to the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loans;
(iv) No consent, approval, authorization or order of, registration or filing with, or notice on behalf of the Seller to any governmental authority or court is required, under federal laws or the laws of the State of New York, for the execution, delivery and performance by the Seller terms of, or compliance by conflict in any way with the Seller withprovision of, this Agreement or constitute a default under, or require the consummation by the Seller consent of any other transaction contemplated hereby and by the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificates;
(v) The Seller is not in violation of, and the execution and delivery of this Agreement by the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect party to, any order indenture, mortgage, deed of trust, agreement, lease or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over other instrument to which the Seller is a party or its assetsby which he may be bound, or to which violation might have consequences that would materially and adversely affect the condition (financial or otherwise) or the operation of the Seller or its assets or might have consequences that would materially and adversely affect the performance of its obligations and duties hereunder;he may be subject.
(vi) 4.1.4 The Seller does has not believebecome in any way obligated for any broker's, nor does it have any reason finder's, agent's or cause to believe, that it cannot perform each and every covenant contained in this Agreement;
(vii) Immediately prior to the sale of the Mortgage Loans to the Purchaser as herein contemplated, the Seller was the owner of the related Mortgage and the indebtedness evidenced by the related Mortgage Note, and, upon the payment to the Seller of the Purchase Price, in the event that the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files similar fee with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereof;
(viii) There are no actions or proceedings against, or investigations known to it of, the Seller before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans by the Seller or the consummation of the transactions contemplated by this Agreement agreement other than to its accountants and attorneys.
4.1.5 No representation or (C) that might prohibit or materially and adversely affect the performance by warranty of the Seller of its obligations undermade in this Agreement, nor in any document, certificate, or validity or enforceability of, this Agreement;
(ix) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller schedule required to be furnished pursuant to this Agreement are not subject agreement, contains or will contain any untrue statement of a material fact, and copies of any documents furnished to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;
(x) The Seller has not dealt with any broker, investment banker, agent or other person, except for the Purchaser or any of its affiliates, that may will be entitled to any commission or compensation in connection with the sale of the Mortgage Loans (except that an entity that previously financed the Seller’s ownership of the Mortgage Loans may be entitled to a fee to release its security interest in the Mortgage Loans, which fee shall have been paid and which security interest shall have been released on or prior to the Closing Date);
(xi) There is no litigation currently pending or, to the best of the Seller’s knowledge without independent investigation, threatened against the Seller that would reasonably be expected to adversely affect the transfer of the Mortgage Loans, the issuance of the Certificates or the execution, delivery, performance or enforceability of this Agreement, or that would result in a material adverse change in the financial condition of the Seller; and
(xii) The information set forth in the applicable part of the Closing Schedule relating to the existence of a Prepayment Charge is complete, true and correct in all material respects at copies of such documents.
4.1.6 The Seller does not have any knowledge of any claim, litigation, threatened litigation or any other action which has been instituted or threatened affecting its ability to perform its obligations under this agreement.
4.1.7 All of the date or dates respecting which such information is furnished foregoing representations and each Prepayment Charge is permissible warranties will be true on and enforceable in accordance with its terms upon as of the mortgagor’s full and voluntary principal prepayment under applicable law, 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; (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 under applicable lawclosing date.
Appears in 2 contracts
Samples: Promissory Note Agreement (Eclipse Corp/Co), Sale Agreement (Eclipse Corp/Co)
Representations, Warranties and Covenants of the Seller. The Seller hereby represents and warrants to the Purchaser, as of the date hereof and as of the Closing Date, and covenants, that:
(i) The Seller is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware corporation with full corporate power and authority is qualified and in good standing to conduct its do business in each jurisdiction where such qualification is necessary, except where the failure so to qualify would not reasonably be expected to have a material adverse effect on the Seller’s business as presently conducted by it or on the Seller’s ability to the extent material enter into this Agreement and to the consummation of consummate the transactions contemplated herein. The Agreement has been duly authorized, executed and delivered by the Seller. The Seller had the full corporate power and authority to own the Mortgage Loans and to transfer and convey the Mortgage Loans to the Purchaser and has the full corporate power and authority to execute and deliver, engage in the transactions contemplated by, and perform and observe the terms and conditions of this Agreement;hereby.
(ii) The Seller has duly authorized the execution, delivery and performance of this Agreement, has duly executed and delivered this Agreement, and this Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a legal, valid and binding obligation of the Seller, enforceable against it in accordance with its terms except as the enforceability thereof may be limited by bankruptcy, insolvency or reorganization or by general principles of equity;.
(iii) The execution, delivery and performance of this Agreement by the Seller (x) does not conflict and will not conflict with, does not breach and will not result in a breach of and does not constitute and will not constitute a default (or an event, which with notice or lapse of time or both, would constitute a default) under (A) any terms or provisions of the organizational documents of the Seller, (B) any term or provision of any material agreement, contract, instrument or indenture, to which the Seller is a party or by which the Seller or any of its property is bound, or (C) any law, rule, regulation, order, judgment, writ, injunction or decree of any court or governmental authority having jurisdiction over the Seller or any of its property and (y) does not create or impose and will not result in the creation or imposition of any lien, charge or encumbrance (other than any created hereby in favor of the Purchaser and its assignees) which would have a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loans;.
(iv) No consent, approval, authorization or order of, registration or filing with, or notice on behalf of the Seller to any governmental authority or court is required, under federal laws or the laws of the State of New York, for the execution, delivery and performance by the Seller of, or compliance by the Seller with, this Agreement or the consummation by the Seller of any other transaction contemplated hereby and by the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificates;.
(v) This Agreement does not contain any untrue statement of material fact or omit to state a material fact necessary to make the statements contained herein not misleading. The written statements, reports and other documents prepared and furnished or to be prepared and furnished by the Seller pursuant to this Agreement or in connection with the transactions contemplated hereby taken in the aggregate do not contain any untrue statement of material fact or omit to state a material fact necessary to make the statements contained therein not misleading.
(vi) The Seller is not in violation of, and the execution and delivery of this Agreement by the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over the Seller or its assets, which violation might have consequences that would materially and adversely affect the condition (financial or otherwise) or the operation of the Seller or its assets or might have consequences that would materially and adversely affect the performance of its obligations and duties hereunder;.
(vivii) The Seller 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;.
(viiviii) Immediately prior to the sale of the Mortgage Loans to the Purchaser as herein contemplated, the Seller was the owner of the related Mortgage and the indebtedness evidenced by the related Mortgage Note, and, upon the payment to the Seller of the Purchase Price, in the event that the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereof;.
(viiiix) There are no actions or proceedings against, or investigations known to it of, the Seller before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans by the Seller or the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by the Seller of its obligations under, or validity or enforceability of, this Agreement;.
(ixx) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;.
(xxi) The Seller has not dealt with any broker, investment banker, agent or other person, except for the Purchaser or any of its affiliates, that may be entitled to any commission or compensation in connection with the sale of the Mortgage Loans (except that an entity that previously financed the Seller’s ownership of the Mortgage Loans may be entitled to a fee to release its security interest in the Mortgage Loans, which fee shall have been paid and which security interest shall have been released on or prior to the Closing Date);.
(xixii) There is no litigation currently pending or, to the best of the Seller’s knowledge without independent investigation, threatened against the Seller that would reasonably be expected to adversely affect the transfer of the Mortgage Loans, the issuance of the Certificates or the execution, delivery, performance or enforceability of this Agreement, or that would result in a material adverse change in the financial condition of the Seller; and.
(xiixiii) The information set forth in the applicable part Seller is a HUD approved mortgagee pursuant to Section 203 of the Closing Schedule relating to the existence of a Prepayment Charge 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 upon the mortgagor’s full and voluntary principal prepayment under applicable law, 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; (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 under applicable lawNational Housing Act.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Nomura Asset Acceptance Corporation, Alternative Loan Trust, Series 2006-Af1), Mortgage Loan Purchase Agreement (Nomura Home Equity Loan, Inc., Home Equity Loan Trust, Series 2006-He3)
Representations, Warranties and Covenants of the Seller. The Seller hereby represents represents, warrants and warrants covenants to the Purchaser, Purchaser as of the date hereof and as of the Closing Date, and covenants, thatfollows:
(ia) The Seller is a Delaware corporation with duly organized, validly existing and in good standing under the laws of the Republic of Panama and it has the full corporate power and authority to conduct its business as presently now being conducted and to own, operate or lease the properties and assets it currently owns, operates or holds under lease. The Seller is duly licensed and qualified to do business and is in good standing as a foreign corporation in each jurisdiction where the character of its business or the nature of its properties or assets makes such qualification or licensing necessary, except for those jurisdictions where the failure to be so qualified, licensed or in good standing would not have a material adverse effect on it.
(b) The Seller has full power and authority to execute and deliver this Agreement, to perform its obligations hereunder and thereunder and to consummate the transactions contemplated hereunder. The execution and delivery of this Agreement and the performance by it to the extent material to Seller of its obligations hereunder and the consummation of the transactions contemplated hereinhereunder and thereunder, have been duly authorized by the Board of Directors of the Seller and, to the extent necessary under the laws of the Republic of Panama or the organization documents of the Seller, by its stockholders. The This Agreement has been duly authorized, executed and delivered by the Seller. The Seller had and constitute the full corporate power and authority to own the Mortgage Loans and to transfer and convey the Mortgage Loans to the Purchaser and has the full corporate power and authority to execute and deliver, engage in the transactions contemplated by, and perform and observe the terms and conditions of this Agreement;
(ii) The Seller has duly authorized the execution, delivery and performance of this Agreement, has duly executed and delivered this Agreement, and this Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a legal, valid and binding obligation obligations of the Seller, enforceable against it in accordance with its terms except as the enforceability thereof may be limited by their respective terms, subject to bankruptcy, insolvency or reorganization or by insolvency, reorganization, fraudulent conveyance, and other laws of general principles applicability affecting the rights and remedies of equity;creditors.
(iiic) The execution, delivery and performance of this Agreement by the Seller (x) does not conflict and will not conflict with, does not breach and will not result in a breach of and does not constitute and will not constitute a default (or an event, which with notice or lapse of time or both, would constitute a default) under (A) any terms or provisions of the organizational documents of the Seller, (B) any term or provision of any material agreement, contract, instrument or indenture, to which the Seller is a party or by which the Seller or any of its property is bound, or (C) any law, rule, regulation, order, judgment, writ, injunction or decree of any court or governmental authority having jurisdiction over the Seller or any of its property and (y) does not create or impose and will not result in the creation or imposition of any lien, charge or encumbrance (other than any created hereby in favor of the Purchaser and its assignees) which would have a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loans;
(iv) No consent, approval, authorization or order of, registration or filing with, or notice on behalf of the Seller to any governmental authority or court is required, under federal laws or the laws of the State of New York, for the execution, delivery and performance by the Seller of this Agreement and the consummation of the transactions contemplated herein do not and will not: (i) conflict with, result in the breach, modification, termination or violation of, or compliance loss of any benefit under, constitute a default under, accelerate the performance required by, result in or give right to a right to amend or modify the terms of, result in the creation of any lien or encumbrance upon any assets or properties, or in any manner release any party thereto from any obligation under, any mortgage, note, bond, indenture, contract agreement, lease, license or other instrument or obligations of any kind or nature by which the seller or any of its properties or assets, may be bound or affected; (ii) conflict with, violate or result in any loss of benefit under, any order, judgment, writ, injunction, regulation, statute or decree; (iii) conflict with, violate or result in any loss of benefit under, any permit, concession or franchise; or (iv) conflict with or violate any provision of the Certificate of Incorporation, charter or organization documents or By-laws, each as heretofore amended, of the Seller.
(d) There are not outstanding or threatened any claims or proceedings of any nature as against the Seller with, this Agreement or which could in any manner affect the consummation by the Seller of any other transaction contemplated hereby and by the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificates;
(v) The Seller is not in violation of, and the execution and delivery of this Agreement by the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over the Seller or its assets, which violation might have consequences that would materially and adversely affect the condition (financial or otherwise) or the operation of the Seller or its assets or might have consequences that would materially and adversely affect the performance of its obligations and duties hereunder;
(vi) The Seller 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) Immediately prior to the sale of the Mortgage Loans to the Purchaser as herein contemplated, the Seller was the owner of the related Mortgage and the indebtedness evidenced by the related Mortgage Note, and, upon the payment to the Seller of the Purchase Price, in the event that the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereof;
(viii) There are no actions or proceedings against, or investigations known to it of, the Seller before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans by the Seller or the consummation of the transactions contemplated by this Agreement or herein.
(Ce) that might prohibit or materially All of the representations, warranties and adversely affect the performance covenants made by the Seller shall survive the execution and delivery of its obligations under, or validity or enforceability of, this Agreement;.
(ixf) The consummation of the transactions contemplated by this Agreement PHGW Shares and Notes are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages owned by the Seller pursuant to this Agreement are not subject free and clear of any liens, encumbrances or restrictions of any kind or nature, except in respect to the bulk transfer or any similar statutory provisions legend referred to in effect in any relevant jurisdiction, except any as may have been complied with;
(xSection 2(h) The Seller has not dealt with any broker, investment banker, agent or other person, except for the Purchaser or any of its affiliates, that may be entitled to any commission or compensation in connection with the sale of the Mortgage Loans (except that an entity that previously financed the Seller’s ownership of the Mortgage Loans may be entitled to a fee to release its security interest in the Mortgage Loans, which fee shall have been paid and which security interest shall have been released on or prior to the Closing Date);
(xi) There is no litigation currently pending or, to the best of the Seller’s knowledge without independent investigation, threatened against the Seller that would reasonably be expected to adversely affect the transfer of the Mortgage Loans, the issuance of the Certificates or the execution, delivery, performance or enforceability of this Agreement, or that would result in a material adverse change in the financial condition of the Seller; and
(xii) The information set forth in the applicable part of the Closing Schedule relating to the existence of a Prepayment Charge 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 upon the mortgagor’s full and voluntary principal prepayment under applicable law, 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; (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 under applicable lawhereof.
Appears in 2 contracts
Samples: Stock and Promissory Notes Purchase Agreement (Phone1globalwide Inc), Stock and Promissory Notes Purchase Agreement (Phone1globalwide Inc)
Representations, Warranties and Covenants of the Seller. The Upon the execution of the applicable Terms Agreement, the Seller hereby represents represents, warrants and warrants covenants to the Purchaser, each Underwriter as of the date hereof and as of the Closing Date, and covenants, thatDate (unless otherwise specified) as follows:
(ia) The Seller has been duly organized and is validly existing as a Delaware corporation with national banking association, in good standing under the laws of the United States. The Seller has, in all material respects, full corporate power and authority to own its properties and conduct its business as presently conducted described in the Disclosure Materials, and to execute, deliver and perform the Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement, this Agreement and the applicable Terms Agreement, and to consummate the transactions contemplated by it the Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement, this Agreement and the applicable Terms Agreement, and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the extent securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on the Seller and its subsidiaries, taken as a whole, or (ii) would have a material adverse effect on the Seller’s ability to consummate the transactions contemplated by the Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement, this Agreement and the applicable Terms Agreement.
(b) The execution, delivery and performance by the Seller of this Agreement, the applicable Terms Agreement, the Asset Representations Review Agreement, the Transfer Agreement, the Receivables Purchase Agreement and the Pooling and Servicing Agreement, and the consummation of the transactions contemplated herein. The Agreement has hereby and thereby have been duly authorized, executed and delivered authorized by all necessary corporate action on the part of the Seller. The Neither the execution and delivery by the Seller had of such instruments, nor the full corporate power and authority to own performance by the Mortgage Loans and to transfer and convey the Mortgage Loans to the Purchaser and has the full corporate power and authority to execute and deliver, engage in Seller of the transactions contemplated byherein or therein contemplated, and perform and observe nor the compliance by the Seller with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and conditions provisions of, or constitute a material default under, any of this Agreement;
the provisions of the Articles of Association or By-laws of the Seller, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Seller is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Seller’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument.
(c) The Seller has duly authorized the execution, delivery and performance of this Agreement, has duly executed and delivered this Agreement and the applicable Terms Agreement.
(d) The Seller has authorized the conveyance of the Receivables and the conveyance of an interest in the Seller’s interest in any related Funds Collateral to the Company under the Receivables Purchase Agreement.
(e) Complete and correct copies of publicly available portions of the Consolidated Reports of Condition and Income of the Bank for the year ended December 31, 2018 and the quarter ended June 30, 2019, as submitted to the Governors of the Federal Reserve System by the Bank, are publicly available through xxxxx://xxx.xxxxx.xxx/public/ManageFacsimiles.aspx. Except as set forth in or contemplated in the Preliminary Prospectus, there has been no material adverse change in the condition (financial or otherwise) of the Bank since December 31, 2018.
(f) Each of the Pooling and Servicing Agreement, the Receivables Purchase Agreement, the Transfer Agreement, and this Agreement, assuming due authorization, execution and delivery by the Purchaser, Asset Representations Review Agreement constitutes a legal, valid and binding obligation of the Seller, enforceable against it the Seller in accordance with its terms terms, except as to the extent that the enforceability thereof may be limited by subject to bankruptcy, insolvency insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general and the rights of creditors of national banking associations, as such laws would apply in the event of the insolvency, liquidation or reorganization or by other similar occurrence with respect to the Seller or in the event of any moratorium or similar occurrence affecting the Seller and to general principles of equity;. All approvals, authorizations, consents, orders or other actions of any court, governmental agency or body or official required in connection with the transfer of the Receivables pursuant to the Receivables Purchase Agreement, have been or will be taken or obtained on or before the Closing Date.
(iiig) (i) The executionMaster Trust is not now, delivery and performance following the issuance of the Collateral Certificate, will not be, required to be registered under the Investment Company Act of 1940, as amended (the “1940 Act”).
(ii) The Master Trust is not now, and immediately following the issuance of the Notes pursuant to the Indenture will not be, a “covered fund” for purposes of regulations adopted under Section 13 of the Bank Holding Company Act of 1956 (hereinafter referred to as the “Xxxxxxx Rule”). In reaching this Agreement by conclusion, although other statutory or regulatory exclusions or exemptions under the 1940 Act or the Xxxxxxx Rule may be available, the Seller has relied on the exclusion from registration set forth in Rule 3a-7 under the 1940 Act.
(xh) does not conflict The representations and warranties of the Seller in the Pooling and Servicing Agreement and the Receivables Purchase Agreement are true and correct in all material respects.
(i) The Seller has provided a written representation to each of the Hired NRSROs (as defined below), which satisfied the requirements of paragraph (a)(3)(iii) of Rule 17g-5 of the Exchange Act (“Rule 17g-5”), as amended (the “17g-5 Representation”). The Seller has complied, and will not conflict withcontinue to comply, does not breach and will not result in a breach of and does not constitute and will not constitute a default (or an eventwith the 17g-5 Representation, which with notice or lapse of time or both, would constitute a default) under (A) any terms or provisions of the organizational documents of the Seller, (B) any term or provision of any material agreement, contract, instrument or indenture, to which the Seller is a party or by which the Seller or any of its property is bound, or (C) any law, rule, regulation, order, judgment, writ, injunction or decree of any court or governmental authority having jurisdiction over the Seller or any of its property and (y) does not create or impose and will not result in the creation or imposition of any lien, charge or encumbrance (other than any created hereby in favor breach of the Purchaser and its assignees) which 17g-5 Representation that would not have a material adverse effect upon on the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loans;Notes.
(iv) No consent, approval, authorization or order of, registration or filing with, or notice on behalf of the Seller to any governmental authority or court is required, under federal laws or the laws of the State of New York, for the execution, delivery and performance by the Seller of, or compliance by the Seller with, this Agreement or the consummation by the Seller of any other transaction contemplated hereby and by the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificates;
(vj) The Seller is has not in violation of, and engaged any third party to provide due diligence services within the execution and delivery meaning of this Agreement Rule 17g-10(d)(1) under the Exchange Act or obtained any third-party due diligence report within the meaning of Rule 15Ga-2(d) under the Exchange Act with respect to the assets held by the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order Master Trust or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over the Seller or its assets, which violation might have consequences that would materially and adversely affect the condition (financial or otherwise) or the operation of the Seller or its assets or might have consequences that would materially and adversely affect the performance of its obligations and duties hereunder;
(vi) The Seller 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) Immediately prior to the sale of the Mortgage Loans to the Purchaser as herein contemplated, the Seller was the owner of the related Mortgage and the indebtedness evidenced by the related Mortgage Note, and, upon the payment to the Seller of the Purchase Price, in the event that the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereof;
(viii) There are no actions or proceedings against, or investigations known to it of, the Seller before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans by the Seller or the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by the Seller of its obligations under, or validity or enforceability of, this Agreement;other Program Agreements.
(ix) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;
(xk) The Seller has expects to comply, as of the date hereof, and does comply, as of the Closing Date, in all material respects with Regulation RR, 17 C.F.R. §246.1, et seq. (the “Credit Risk Retention Rules”), either directly or (to the extent permitted by the Credit Risk Retention Rules) through a “Wholly-Owned Affiliate” (as defined in the Credit Risk Retention Rules). The Seller, or one or more of its Wholly-Owned Affiliates, expects to satisfy, as of the date hereof, and does satisfy, on the Closing Date, the Credit Risk Retention Rules by maintaining a “seller’s interest” (as defined in the Credit Risk Retention Rules) in the Issuing Entity of not dealt less than 5% of the aggregate unpaid principal balance of all outstanding investor “ABS Interests” (as defined in the Credit Risk Retention Rules) in the Issuing Entity, determined in accordance with the Credit Risk Retention Rules, without any impermissible transfer, hedging or financing of such retained interest.
(l) As used in this paragraph, “EU due diligence and risk retention rules” refers to Articles 5 and 6 of Regulation (EU) 2017/2402 of the European Parliament and of the Council of December 12, 2017 (the “EU Securitization Regulation”), together with any brokerrelevant regulatory technical standards adopted by the European Commission and any guidance published by the European Union supervisory authorities with respect thereto or to precedent legislation (together, investment banker“delegated regulations and guidance”), agent or other personeach as in effect and applicable on the date the Notes are issued. With reference to the EU due diligence and risk retention rules, except the Seller covenants and agrees that (i) as “originator” for the Purchaser purposes of the EU due diligence and risk retention rules, it currently retains, and on an ongoing basis will retain, a material net economic interest that is not less than five per cent of the nominal value of the securitized exposures (measured at origination), in a form that is intended to qualify as an originator’s interest as provided in option (b) of Article 6(3) of the EU Securitization Regulation, by holding all the membership interest in the Company, which in turn holds all or part of the Transferor’s Interest; (ii) it will not (and will not permit the Company or any of its affiliates, that may other affiliates to) allow the retained interest to be entitled subject to any commission credit risk mitigation, short position or compensation other hedge or to be sold, if as a result, the Seller would not retain a material net economic interest in connection with the sale an amount that is not less than five percent of the Mortgage Loans (except that an entity that previously financed the Seller’s ownership nominal value of the Mortgage Loans may be entitled to a fee to release its security interest in the Mortgage Loans, which fee shall have been paid and which security interest shall have been released on or prior to the Closing Date);
(xi) There is no litigation currently pending or, to the best of the Seller’s knowledge without independent investigation, threatened against the Seller that would reasonably be expected to adversely affect the transfer of the Mortgage Loans, the issuance of the Certificates or the execution, delivery, performance or enforceability of this Agreement, or that would result in a material adverse change in the financial condition of the Seller; and
(xii) The information set forth in the applicable part of the Closing Schedule relating to the existence of a Prepayment Charge 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 upon the mortgagor’s full and voluntary principal prepayment under applicable lawsecuritized exposures, except to the extent that: permitted in accordance with Article 6(1) of the EU Securitization Regulation (1) the enforceability thereof may be limited as supplemented by bankruptcy, insolvency, moratorium, receivership applicable delegated regulations and other similar laws relating to creditors’ rightsguidance); (2iii) it will not change the collectability thereof may be limited due retention option or the method of calculating its net economic interest in the securitized exposures while the Notes are outstanding, except under exceptional circumstances in accordance with the EU Securitization Regulation (as supplemented by applicable delegated regulations and guidance); and (iv) it will provide ongoing confirmation of its continued compliance with its obligations in clauses (i) and (ii) in this paragraph in or concurrently with the delivery of each monthly certificateholders’ statement pursuant to acceleration in connection with a foreclosure or other involuntary prepayment; or (3) subsequent changes in applicable law may limit or prohibit enforceability thereof under applicable lawthe Series Supplement.
Appears in 2 contracts
Samples: Underwriting Agreement (Capital One Funding, LLC), Underwriting Agreement (Capital One Funding, LLC)
Representations, Warranties and Covenants of the Seller. (a) The Seller hereby represents and warrants to the Purchasermakes, as of the date hereof (or as of such other date specifically provided in the particular representation or warranty), to and for the benefit of the Purchaser, the Trustee on behalf of the Certificateholders and the respective successors of the Purchaser and the Trustee, each of the representations and warranties set forth in Exhibit C subject to the exceptions set forth in Exhibit D and any schedule referenced in Exhibit C.
(b) In addition, the Seller, as of the Closing Datedate hereof, hereby represents and warrants to, and covenantscovenants with, the Purchaser that:
(i) The Seller is a Delaware corporation corporation, duly organized, validly existing and in good standing under the laws of the State of Maryland, and is in compliance with full corporate power and authority to conduct its business as presently conducted by it the laws of each State in which any Mortgaged Property is located to the extent material necessary to ensure the consummation enforceability of the transactions contemplated herein. The Agreement has been duly authorized, executed and delivered by the Seller. The Seller had the full corporate power and authority to own the each Mortgage Loans Loan and to transfer and convey the Mortgage Loans to the Purchaser and has the full corporate power and authority to execute and deliver, engage in the transactions contemplated by, and perform and observe the terms and conditions of its obligations under this Agreement;.
(ii) The execution and delivery of this Agreement by the Seller, and the performance of, and compliance with, the terms of this Agreement by the Seller, do not violate the Seller's organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets, in each case which materially and adversely affects the ability of the Seller to carry out the transactions contemplated by this Agreement.
(iii) The Seller has the full power and authority to enter into and consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement, and this .
(iv) This Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a legalvalid, valid legal and binding obligation of the Seller, enforceable against it the Seller in accordance with its the terms except as hereof, subject to (A) applicable bankruptcy, insolvency, reorganization, receivership, moratorium and other laws affecting the enforceability thereof enforcement of creditors' rights generally, and the rights of creditors of national banks, or any other laws that may be limited by bankruptcyapplicable in the context of the insolvency of a national banking association, insolvency or reorganization or by (B) general principles of equity;
, regardless of whether such enforcement is considered in a proceeding in equity or at law, and (iiiC) The executionpublic policy considerations underlying the securities laws, delivery and performance to the extent that such public policy considerations limit the enforceability of the provisions of this Agreement by the Seller (x) does not conflict and will not conflict with, does not breach and will not result in a breach of and does not constitute and will not constitute a default (that purport to provide indemnification or an event, which with notice or lapse of time or both, would constitute a default) under (A) any terms or provisions of the organizational documents of the Seller, (B) any term or provision of any material agreement, contract, instrument or indenture, to which the Seller is a party or by which the Seller or any of its property is bound, or (C) any law, rule, regulation, order, judgment, writ, injunction or decree of any court or governmental authority having jurisdiction over the Seller or any of its property and (y) does not create or impose and will not result in the creation or imposition of any lien, charge or encumbrance (other than any created hereby in favor of the Purchaser and its assignees) which would have a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loans;
(iv) No consent, approval, authorization or order of, registration or filing with, or notice on behalf of the Seller to any governmental authority or court is required, under federal laws or the laws of the State of New York, contribution for the execution, delivery and performance by the Seller of, or compliance by the Seller with, this Agreement or the consummation by the Seller of any other transaction contemplated hereby and by the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificates;liabilities.
(v) The Seller is not in violation of, and the its execution and delivery of this Agreement by the Seller and its performance of, and compliance with with, the terms of this Agreement will do not constitute a violation with respect toof, any law, any judgment, order or decree of any court or arbiter, or any order order, regulation or regulation demand of any federal, statestate or local governmental or regulatory authority, municipal or governmental agency having jurisdiction over which violation, in the Seller's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Seller to perform its obligations under this Agreement or its assetsthe financial condition of the Seller.
(vi) No litigation is pending or, which violation might have consequences that would to the best of the Seller's knowledge, threatened against the Seller the outcome of which, in the Seller's good faith and reasonable judgment, is likely to materially and adversely affect the condition (financial or otherwise) or the operation ability of the Seller or its assets or might have consequences that would materially and adversely affect the performance of to perform its obligations and duties hereunder;
(vi) The Seller does not believe, nor does it have any reason under this Agreement or cause to believe, that it cannot perform each and every covenant contained in this Agreement;the financial condition of the Seller.
(vii) Immediately prior to the sale of the Mortgage Loans to the Purchaser as herein contemplated, the Seller was the owner of the related Mortgage and the indebtedness evidenced by the related Mortgage Note, and, upon the payment to the Seller of the Purchase Price, in the event that the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereof;
(viii) There are no actions or proceedings against, or investigations known to it of, the Seller before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans by the Seller or the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by the Seller of its obligations under, or validity or enforceability of, this Agreement;
(ix) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;
(x) The Seller has not dealt with any broker, investment banker, agent or other person, except for other than the Purchaser or any of its Purchaser, the Underwriters, the Initial Purchaser, and their respective affiliates, that may be entitled to any commission or compensation in connection with the sale of the Mortgage Loans (except that an entity that previously financed or the Seller’s ownership consummation of any of the Mortgage Loans may be entitled to a fee to release its security interest in the Mortgage Loans, which fee shall have been paid and which security interest shall have been released on or prior to the Closing Date);other transactions contemplated hereby.
(xiviii) There is no litigation currently pending orExcept with respect to Deutsche Bank Securities Inc., to the best an affiliate of the Seller’s knowledge without independent investigation, threatened against acting as Underwriter and Initial Purchaser, neither the Seller that would reasonably be expected nor anyone acting on its behalf has (A) offered, pledged, sold, disposed of or otherwise transferred any Certificate, any interest in any Certificate or any other similar security to adversely affect the any person in any manner, (B) solicited any offer to buy or to accept a pledge, disposition or other transfer of any Certificate, any interest in any Certificate or any other similar security from any person in any manner, (C) otherwise approached or negotiated with respect to any Certificate, any interest in any Certificate or any other similar security with any person in any manner, (D) made any general solicitation by means of general advertising or in any other manner with respect to any Certificate, any interest in any Certificate or any similar security, or (E) taken any other action that (in the Mortgage Loans, case of any of the acts described in clauses (A) through (D) above) would constitute or result in a violation of the Securities Act or any state securities law relating to or in connection with the issuance of the Certificates or require registration or qualification pursuant to the executionSecurities Act or any state securities law of any Certificate not otherwise intended to be a Registered Certificate. In addition, deliverythe Seller will not act, performance nor has it authorized or enforceability will it authorize any person (other than an Underwriter and/or the Initial Purchaser) to act, in any manner set forth in the foregoing sentence with respect to any of the Certificates or interests therein. For purposes of this Agreementparagraph 4(b)(viii), or the term "similar security" shall be deemed to include, without limitation, any security evidencing or, upon issuance, that would result in a material adverse change have evidenced an interest in the financial condition of the Seller; andMortgage Loans or any substantial number thereof.
(xiiix) The Insofar as it relates to the Mortgage Loans, the information set forth in the applicable part of the Closing Schedule relating Annex A-1 and Annex A-2 to the existence of a Prepayment Charge Prospectus Supplement (as defined in the GACC Indemnification Agreement) (the "Loan Detail") and, to the extent consistent therewith, the information set forth on the diskette attached to the Prospectus Supplement and the accompanying prospectus (the "Diskette"), is complete, true and correct in all material respects at respects. Insofar as it relates to the date Mortgage Loans and/or the Seller and does not represent a restatement or dates respecting which such aggregation of the information is furnished on the Loan Detail, the information set forth in the Memorandum (as defined in the GACC Indemnification Agreement) and each Prepayment Charge is permissible in the Prospectus Supplement under the headings "Summary of the Prospectus Supplement--Relevant Parties and enforceable in accordance with its terms upon Dates--Sponsors" "--The Mortgage Pool," "Risk Factors, "The Sponsors, Mortgage Loan Sellers and Originators" and "Description of the mortgagor’s full Mortgage Pool" and voluntary principal prepayment under applicable lawthe information set forth on Annex A-1 and Annex A-2 and Annex B to the Prospectus Supplement, except and to the extent that: (1) it contains information consistent with that on such Annex A-1 and Annex A-2 set forth on the enforceability thereof may be limited by bankruptcyDiskette, insolvency, moratorium, receivership and other similar laws relating to creditors’ rights; (2) the collectability thereof may be limited due to acceleration in connection with does not contain any untrue statement of a foreclosure or other involuntary prepayment; material fact or (3in the case of the Memorandum, when read together with the other information specified therein as being available for review by investors) subsequent changes omit to state any material fact necessary to make the statements therein, in applicable law may limit or prohibit enforceability thereof light of the circumstances under applicable lawwhich they were made, not misleading.
Appears in 2 contracts
Samples: Mortgage Loan Purchase Agreement (CD 2006-Cd3 Mortgage Trust), Mortgage Loan Purchase Agreement (Deutsche Mortgage & Asset Receiving Corp)
Representations, Warranties and Covenants of the Seller. The Seller hereby represents and warrants to the Purchaser, as of Purchaser with respect to the date hereof and Initial Mortgage Loans as of the Closing Date, Date and covenants, thatwith respect to the Subsequent Mortgage Loans as of the respective Subsequent Transfer Date or as of such date specifically provided herein:
(i) The Seller is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware corporation with full corporate power and authority is duly authorized and qualified to conduct its transact any and all business as presently contemplated by this Agreement to be conducted by it the Seller in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent material necessary to ensure its ability to enforce each Mortgage Loan and to service the consummation Mortgage Loans in accordance with the terms of the transactions contemplated herein. The Agreement has been duly authorized, executed Pooling and delivered by the Seller. Servicing Agreement;
(ii) The Seller had the full corporate power and authority to own the originate, hold and sell each Mortgage Loans and to transfer and convey the Mortgage Loans to the Purchaser Loan and has the full corporate power and authority to execute service each Mortgage Loan, and deliverto execute, engage in deliver and perform, and to enter into and consummate the transactions contemplated by, by this Agreement and perform and observe the terms and conditions of this Agreement;
(ii) The Seller has duly authorized by all necessary corporate action on the part of the Seller the execution, delivery and performance of this Agreement, has duly executed and delivered this Agreement, ; and this Agreement, assuming the due authorization, execution and delivery thereof by the Purchaser, constitutes a legal, valid and binding obligation of the Seller, enforceable against it the Seller in accordance with its terms terms, except as to the extent that (a) the enforceability thereof may be limited by bankruptcy, insolvency or reorganization or by general principles insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally and (b) the remedy of equityspecific 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, execution and delivery and performance of this Agreement by the Seller, the servicing of the Mortgage Loans by the Seller (x) does not conflict under the Pooling and Servicing Agreement, 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 Seller and will not conflict with, does not breach and will not (A) result in a breach of and does not constitute and will not constitute a default (or an event, which with notice or lapse of time or both, would constitute a default) under (A) any terms or provisions of the organizational documents of the Seller, (B) any term or provision of the charter or by-laws of the Seller 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, contract, agreement or instrument or indenture, to which the Seller is a party or by which the Seller or any of its property is it may be bound, or (C) any lawstatute, rule, regulation, order, judgment, writ, injunction order or decree regulation applicable to the Seller of any court court, regulatory body, administrative agency or governmental authority body having jurisdiction over the Seller; and the Seller 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 Seller's knowledge, would in the future materially and adversely affect, (x) the ability of the Seller to perform its property and obligations under this Agreement or (y) does not create the business, operations, financial condition, properties or impose and will not result in the creation or imposition of any lien, charge or encumbrance (other than any created hereby in favor assets of the Purchaser and its assignees) which would have Seller taken as a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loanswhole;
(iv) No consent, approval, authorization or order of, registration of any court or filing with, governmental agency or notice on behalf of the Seller to any governmental authority or court body is required, under federal laws or the laws of the State of New York, required for the execution, delivery and performance by the Seller of, or compliance by the Seller with, this Agreement or the consummation by of the transactions contemplated hereby, or if any such consent, approval, authorization or order is required, the Seller of any other transaction contemplated hereby and by has obtained the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificatessame;
(v) The Seller is not an approved originator/servicer for Xxxxxx Xxx or Xxxxxxx Mac in violation ofgood standing and is a HUD approved mortgagee pursuant to Section 203 and Section 211 of the National Housing Act; and
(vi) Except as otherwise disclosed in the Prospectus Supplement, and the execution and delivery of this Agreement by no litigation is pending against the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over the Seller or its assets, which violation might have consequences that would materially and adversely affect the condition (financial or otherwise) or the operation of the Seller or its assets or might have consequences that would materially and adversely affect the performance of its obligations and duties hereunder;
(vi) The Seller 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) Immediately prior to the sale of the Mortgage Loans to the Purchaser as herein contemplated, the Seller was the owner of the related Mortgage and the indebtedness evidenced by the related Mortgage Note, and, upon the payment to the Seller of the Purchase Price, in the event that the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereof;
(viii) There are no actions or proceedings against, or investigations known to it of, the Seller before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans by the Seller or the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by the Seller of its obligations under, or validity or enforceability of, this Agreement;
(ix) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;
(x) The Seller has not dealt with any broker, investment banker, agent or other person, except for the Purchaser or any of its affiliates, that may be entitled to any commission or compensation in connection with the sale of the Mortgage Loans (except that an entity that previously financed the Seller’s ownership of the Mortgage Loans may be entitled to a fee to release its security interest in the Mortgage Loans, which fee shall have been paid and which security interest shall have been released on or prior to the Closing Date);
(xi) There is no litigation currently pending or, to the best of the Seller’s knowledge without independent investigation, threatened against the Seller that would reasonably be expected to adversely affect the transfer of the Mortgage Loans, the issuance of the Certificates or the execution, delivery, performance delivery or enforceability of this Agreement, Agreement or that would result in a material adverse change in the financial condition ability of the Seller; and
(xii) The information set forth in Seller to service the applicable part Mortgage Loans or to perform any of the Closing Schedule relating to the existence of a Prepayment Charge 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 its other obligations hereunder in accordance with its the terms upon the mortgagor’s full and voluntary principal prepayment under applicable law, 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; (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 under applicable lawhereof.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Ameriquest Mortgage Sec Inc Asset Back Pass THR Cer Se 03 12), Pooling and Servicing Agreement (Ameriquest Mortgage Sec Inc Asset Back Pass THR Ser 2003-13)
Representations, Warranties and Covenants of the Seller. The Seller hereby represents represents, warrants and warrants covenants to the PurchaserIndenture Trustee, the Trust, the Sponsor and the Servicer that as of the date hereof and of this Agreement or as of the Closing Date, and covenants, thatsuch date specifically provided herein:
(ia) The Seller is a Delaware corporation with full corporate Maryland real estate investment trust duly organized, validly existing and in good standing under the laws of the State of Maryland.
(b) The Seller has the trust power and authority to conduct its business as presently conducted by it convey the Mortgage Loans and to the extent material execute, deliver and perform, and to the consummation of enter into and consummate the transactions contemplated herein. The by this Agreement.
(c) This Agreement has been duly and validly authorized, executed and delivered by the Seller. The , all requisite corporate action having been taken, and, assuming the due authorization, execution and delivery hereof by the other parties hereto, constitutes or will constitute the legal, valid and binding agreement of the Seller, enforceable against the Seller had in accordance with its terms, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting the full corporate power rights of creditors generally, and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law).
(d) No consent, approval, authorization or order of or registration or filing with, or notice to, any governmental authority to own or court is required for the Mortgage Loans execution, delivery and to transfer and convey performance of or compliance by the Mortgage Loans to Seller with this Agreement or the Purchaser and has consummation by the full corporate power and authority to execute and deliver, engage in Seller of any of the transactions contemplated byhereby, except as have been made on or prior to the Closing Date.
(e) None of the execution and perform and observe delivery of this Agreement, the consummation of the transactions contemplated hereby or thereby, or the fulfillment of or compliance with the terms and conditions of this Agreement;
, (iii) The Seller has duly authorized conflicts or will conflict with or results or will result in a breach of, or constitutes or will constitute a default or results or will result in an acceleration under (A) the execution, delivery and performance certificate of this Agreement, has duly executed and delivered this Agreement, and this Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a legal, valid and binding obligation trust or bylaws of the Seller, enforceable against it in accordance with its terms except as the enforceability thereof may be limited by bankruptcy, insolvency or reorganization or by general principles of equity;
(iii) The execution, delivery and performance of this Agreement by the Seller (x) does not conflict and will not conflict with, does not breach and will not result in a breach of and does not constitute and will not constitute a default (or an event, which with notice or lapse of time or both, would constitute a default) under (A) any terms or provisions of the organizational documents of the Seller, (B) of any term term, condition or provision of any material agreement, contract, instrument or indenture, deed of trust, contract or other agreement or instrument to which the Seller is a party or by which the Seller or any of its property subsidiaries is a party or by which it or any of its subsidiaries is bound, ; (ii) results or (C) will result in a violation of any law, rule, regulation, order, judgment, writ, injunction judgment or decree applicable to the Seller of any court or governmental authority having jurisdiction over the Seller or any of its property and subsidiaries; or (yiii) does not create or impose and will not result results in the creation or imposition of any lien, charge or encumbrance (other than any created hereby in favor of the Purchaser and its assignees) which would have a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loans;.
(ivf) No consent, approval, authorization or order of, registration or filing with, or notice on behalf of the Seller to any governmental authority or court is required, under federal laws or the laws of the State of New York, for the execution, delivery and performance by the Seller of, or compliance by the Seller with, this Agreement or the consummation by the Seller of any other transaction contemplated hereby and by the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificates;
(v) The Seller is not in violation of, and the execution and delivery of this Agreement by the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over the Seller or its assets, which violation might have consequences that would materially and adversely affect the condition (financial or otherwise) or the operation of the Seller or its assets or might have consequences that would materially and adversely affect the performance of its obligations and duties hereunder;
(vi) The Seller 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) Immediately prior to the sale of the Mortgage Loans to the Purchaser Except as herein contemplated, the Seller was the owner of the related Mortgage and the indebtedness evidenced by the related Mortgage Note, and, upon the payment to the Seller of the Purchase Price, set forth in the event that Prospectus Supplement under the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereof;
(viii) There heading “Risk Factors,” there are no actions actions, suits or proceedings against, before or against or investigations known to it of, the Seller pending, or to the knowledge of the Seller, threatened, before any court, administrative agency or other tribunal (A) that tribunal, and no notice of any such action, which, in the Seller’s reasonable judgment, might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans by the Seller or the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by the Seller of its obligations underunder this Agreement, or the validity or enforceability of, this Agreement;
(ix) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;
(x) The Seller has not dealt with any broker, investment banker, agent or other person, except for the Purchaser or any of its affiliates, that may be entitled to any commission or compensation in connection with the sale of the Mortgage Loans (except that an entity that previously financed the Seller’s ownership of the Mortgage Loans may be entitled to a fee to release its security interest in the Mortgage Loans, which fee shall have been paid and which security interest shall have been released on or prior to the Closing Date);
(xi) There is no litigation currently pending or, to the best of the Seller’s knowledge without independent investigation, threatened against the Seller that would reasonably be expected to adversely affect the transfer of the Mortgage Loans, the issuance of the Certificates or the execution, delivery, performance or enforceability of this Agreement.
(g) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or governmental agency that may materially and adversely affect its performance hereunder.
(h) The Seller hereby covenants that it will file a federal income tax return for its taxable year ending December 31, 2004 on Internal Revenue Service Form 1120 REIT on which the Seller elects to be taxed as a REIT. The Seller hereby represents that it has been organized in conformity with the requirements for qualification for taxation as a REIT and hereby covenants that it at all times the Seller owns Trust Certificates, either directly, or indirectly through one or more Qualified REIT Subsidiaries, will conduct its operations so as to qualify as a REIT. If, at any time the Seller owns Trust Certificates, either directly, or indirectly through one or more Qualified REIT Subsidiaries, the Seller determines that would result in is has failed to qualify as a material adverse change in REIT, the financial condition Seller shall, within 30 days of such discovery, notify the Seller; and
(xii) The information Indenture Trustee of such failure. It is understood and agreed that the representations, warranties and covenants set forth in the applicable part this Section 3.06 shall survive delivery of the Closing Schedule relating respective Indenture Trustee’s Mortgage Files to the existence of a Prepayment Charge is complete, true Indenture Trustee 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 upon the mortgagor’s full and voluntary principal prepayment under applicable law, except shall inure to the extent that: (1) benefit of the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ rights; (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 under applicable lawIndenture Trustee.
Appears in 2 contracts
Samples: Sale and Servicing Agreement (Accredited Mortgage Loan Trust 2005-1), Sale and Servicing Agreement (Accredited Mortgage Loan Trust 2004-4)
Representations, Warranties and Covenants of the Seller. (a) The Seller hereby represents and warrants to the Purchaser, as of the date hereof and as of the Closing Date, and covenants, that:
(i) The Seller is duly organized, validly existing and in good standing as a corporation under the laws of the State of Delaware corporation with full corporate power and authority to conduct its business as presently conducted by it to the extent material to the consummation of the transactions contemplated herein. The Agreement Seller has been duly authorized, executed and delivered by the Seller. The Seller had the full corporate power and authority to own the Mortgage Loans and to transfer and convey the Mortgage Loans to the Purchaser and has the full corporate power and authority to execute and deliver, engage in the transactions contemplated by, and perform and observe the terms and conditions of this Agreement;.
(ii) The Seller has duly authorized the execution, delivery and performance of this Agreement, has duly executed and delivered this Agreement, and this Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a legal, valid and binding obligation of the Seller, enforceable against it in accordance with its terms except as the enforceability thereof may be limited by bankruptcy, insolvency or reorganization or by general principles of equity;.
(iii) The execution, delivery and performance of this Agreement by the Seller (x) does not conflict and will not conflict with, does not breach and will not result in a breach of and does not constitute and will not constitute a default (or an event, which with notice or lapse of time or both, would constitute a default) under (A) any terms or provisions of the organizational documents articles of incorporation or by-laws of the Seller, (B) any term or provision of any material agreement, contract, instrument or indenture, to which the Seller is a party or by which the Seller or any of its property is bound, bound or (C) any law, rule, regulation, order, judgment, writ, injunction or decree of any court or governmental authority having jurisdiction over the Seller or any of its property and (y) does not create or impose and will not result in the creation or imposition of any lienl ien, charge or encumbrance (other than any created hereby in favor of the Purchaser and its assignees) which would have a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loans;.
(iv) No consent, approval, authorization or order of, registration or filing with, or notice on behalf of the Seller to any governmental authority or court is required, under federal laws or the laws of the State of New YorkDelaware, for the execution, delivery and performance by the Seller of, or compliance by the Seller with, this Agreement or the consummation by the Seller of any other transaction contemplated hereby and by the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificates;.
(v) This Agreement does not contain any untrue statement of material fact or omit to state a material fact necessary to make the statements contained herein not misleading. The written statements, reports and other documents prepared and furnished or to be prepared and furnished by the Seller pursuant to this Agreement or in connection with the transactions contemplated hereby taken in the aggregate do not contain any untrue statement of material fact or omit to state a material fact necessary to make the statements contained therein not misleading.
(vi) The Seller is not in violation of, and the execution and delivery of this Agreement by the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over the Seller or its assets, which violation might have consequences that would materially and adversely affect the condition (financial or otherwise) or the operation of the Seller or its assets or might have consequences that would materially and adversely affect the performance of its obligations and duties hereunder;
(vi) The Seller 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) Immediately prior to the sale of the Mortgage Loans to the Purchaser as herein contemplated, the Seller was the owner of the related Mortgage and the indebtedness evidenced by the related Mortgage Note, and, upon the payment to the Seller of the Purchase Price, in the event that the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereof;
(viii) There are no actions or proceedings against, or investigations known to it of, the Seller before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans by the Seller or the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by the Seller of its obligations under, or validity or enforceability of, this Agreement;
(ix) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;
(x) The Seller has not dealt with any broker, investment banker, agent or other person, except for the Purchaser or any of its affiliates, that may be entitled to any commission or compensation in connection with the sale of the Mortgage Loans (except that an entity that previously financed the Seller’s ownership of the Mortgage Loans may be entitled to a fee to release its security interest in the Mortgage Loans, which fee shall have been paid and which security interest shall have been released on or prior to the Closing Date);
(xi) There is no litigation currently pending or, to the best of the Seller’s knowledge without independent investigation, threatened against the Seller that would reasonably be expected to adversely affect the transfer of the Mortgage Loans, the issuance of the Certificates or the execution, delivery, performance or enforceability of this Agreement, or that would result in a material adverse change in the financial condition of the Seller; and
(xii) The information set forth in the applicable part of the Closing Schedule relating to the existence of a Prepayment Charge 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 upon the mortgagor’s full and voluntary principal prepayment under applicable law, 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; (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 under applicable law.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (First Franklin Mortgage Loan Trust, Series 2005-Ff7), Pooling and Servicing Agreement (First Franklin Mortgage Loan Trust, Series 2005-Ff7)
Representations, Warranties and Covenants of the Seller. (a) The Seller hereby represents and warrants to and for the Purchaser, as benefit of the date hereof and Purchaser as of the Closing Date, and covenants, Date that:
(i) The Seller Eurohypo is duly licensed and authorized to transact business in the State of New York as a Delaware corporation with full corporate power and authority to conduct its business as presently conducted by it to the extent material to the consummation branch of a foreign bank under Article V of the transactions contemplated herein. The Agreement has been duly authorized, executed and delivered by Banking Law of the Seller. The Seller had the full corporate power and authority to own the Mortgage Loans and to transfer and convey the Mortgage Loans to the Purchaser and has the full corporate power and authority to execute and deliver, engage in the transactions contemplated by, and perform and observe the terms and conditions of this Agreement;United States.
(ii) The execution and delivery of this Agreement by the Seller, and the performance of Seller's obligations under this Agreement, will not violate the Seller's organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets, which default or breach, in the Seller's good faith and commercially reasonable judgment is likely to affect materially and adversely either the ability of the Seller to perform its obligations under this Agreement or its financial condition.
(iii) The Seller has the full power and authority to enter into and perform its obligations under this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement, and this .
(iv) This Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a legalvalid, valid legal and binding obligation of the Seller, enforceable against it the Seller in accordance with its the terms except as the enforceability thereof may be limited by hereof, subject to (A) applicable bankruptcy, insolvency or reorganization or by insolvency, reorganization, fraudulent transfer, moratorium and other laws affecting the enforcement of creditors' rights generally and (B) general principles of equity;
(iii) The execution, delivery and performance regardless of this Agreement by the Seller (x) does not conflict and will not conflict with, does not breach and will not result whether such enforcement is considered in a breach of and does not constitute and will not constitute a default (proceeding in equity or an event, which with notice or lapse of time or both, would constitute a default) under (A) any terms or provisions of the organizational documents of the Seller, (B) any term or provision of any material agreement, contract, instrument or indenture, to which the Seller is a party or by which the Seller or any of its property is bound, or (C) any at law, rule, regulation, order, judgment, writ, injunction or decree of any court or governmental authority having jurisdiction over the Seller or any of its property and (y) does not create or impose and will not result in the creation or imposition of any lien, charge or encumbrance (other than any created hereby in favor of the Purchaser and its assignees) which would have a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loans;
(iv) No consent, approval, authorization or order of, registration or filing with, or notice on behalf of the Seller to any governmental authority or court is required, under federal laws or the laws of the State of New York, for the execution, delivery and performance by the Seller of, or compliance by the Seller with, this Agreement or the consummation by the Seller of any other transaction contemplated hereby and by the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificates;.
(v) The Seller is not in violation of, and the its execution and delivery of this Agreement by the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect toof, any law, any order or decree of any court or arbiter, or any order order, regulation or regulation demand of any federal, state, municipal state or local governmental agency having jurisdiction over the Seller or its assetsregulatory authority, which violation might have consequences that would violation, in the Seller's good faith and reasonable judgment, is likely to affect materially and adversely affect either the condition (financial or otherwise) or the operation ability of the Seller or its assets or might have consequences that would materially and adversely affect the performance of to perform its obligations and duties hereunder;under this Agreement or the financial condition of the Seller.
(vi) The Seller does not believe, nor does it have any reason or cause No litigation is pending with regard to believe, that it cannot perform each and every covenant contained in this Agreement;
(vii) Immediately prior to the sale of the Mortgage Loans to the Purchaser as herein contemplated, which the Seller was the owner has received service of the related Mortgage and the indebtedness evidenced by the related Mortgage Note, and, upon the payment to the Seller of the Purchase Price, in the event that the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereof;
(viii) There are no actions or proceedings against, or investigations known to it of, the Seller before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans by the Seller or the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by the Seller of its obligations under, or validity or enforceability of, this Agreement;
(ix) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;
(x) The Seller has not dealt with any broker, investment banker, agent or other person, except for the Purchaser or any of its affiliates, that may be entitled to any commission or compensation in connection with the sale of the Mortgage Loans (except that an entity that previously financed the Seller’s ownership of the Mortgage Loans may be entitled to a fee to release its security interest in the Mortgage Loans, which fee shall have been paid and which security interest shall have been released on or prior to the Closing Date);
(xi) There is no litigation currently pending process or, to the best of the Seller’s knowledge without independent investigation's knowledge, threatened against the Seller that which if determined adversely to the Seller would reasonably be expected to adversely affect prohibit the transfer of the Mortgage Loans, the issuance of the Certificates or the execution, delivery, performance or enforceability of Seller from entering into this Agreement, or that in the Seller's good faith and reasonable judgment, would result in a material adverse change in be likely to materially and adversely affect either the ability of the Seller to perform its obligations under this Agreement or the financial condition of the Seller; and.
(xiivii) No consent, approval, authorization or order of, or filing or registration with, any state or federal court or governmental agency or body is required for the consummation by the Seller of the transactions contemplated herein, except for those consents, approvals, authorizations or orders that previously have been obtained and those filings and registrations that previously have been completed, and except for those filings and recordings of Mortgage Loan documents and assignments thereof that are contemplated by the Pooling and Servicing Agreement to be completed after the Closing Date.
(b) The information Seller hereby makes the representations and warranties contained in Schedule II (subject to any exceptions thereto listed on Schedule IIA) to and for the benefit of the Purchaser as of the Closing Date (or as of such other dates specifically provided in the particular representation and warranty), with respect to (and solely with respect to) each Mortgage Loan.
(c) Upon discovery of any Material Breach or Material Document Defect, the Purchaser or its designee shall notify the Seller thereof in writing and request that the Seller correct or cure such Material Breach or Material Document Defect. Within 90 days of the earlier of discovery or receipt of written notice by the Seller that there has been a Material Breach or a Material Document Defect (such 90-day period, the "Initial Resolution Period"), the Seller shall (i) cure such Material Breach or Material Document Defect, as the case may be, in all material respects or (ii) repurchase each affected Mortgage Loan or REO Loan (each, a "Defective Mortgage Loan") at the related Purchase Price in accordance with the terms hereof and, if applicable, the terms of the Pooling and Servicing Agreement, with payment to be made in accordance with the reasonable directions of the Purchaser; provided that if the Seller certifies in writing to the Purchaser (i) that, as evidenced by an accompanying Opinion of Counsel, any such Material Breach or Material Document Defect, as the case may be, does not and will not cause the Defective Mortgage Loan, to fail to be a "qualified mortgage" within the meaning of Section 860G(a)(3) of the Code, (ii) that such Material Breach or Material Document Defect, as the case may be, is capable of being corrected or cured but not within the applicable Initial Resolution Period, (iii) that the Seller has commenced and is diligently proceeding with the cure of such Material Breach or Material Document Defect, as the case may be, within the applicable Initial Resolution Period, and (iv) that the Seller anticipates that such Material Breach or Material Document Defect, as the case may be, will be corrected or cured within an additional period not to exceed the Resolution Extension Period (as defined below), then the Seller shall have an additional period equal to the applicable Resolution Extension Period to complete such correction or cure or, failing such, to repurchase the Defective Mortgage Loan; and provided, further, if the Seller's obligation to repurchase any Defective Mortgage Loan as a result of a Material Breach or Material Document Defect arises within the three-month period commencing on the Closing Date (or within the two-year period commencing on the Closing Date if the Defective Mortgage Loan is a "defective obligation" within the meaning of Section 860G(a)(4)(B)(ii) of the Code and Treasury Regulations Section 1.860G-2(f)), and if the Defective Mortgage Loan is still subject to the Pooling and Servicing Agreement, the Seller may, at its option, in lieu of repurchasing such Defective Mortgage Loan (but, in any event, no later than such repurchase would have to have been completed), (i) replace such Defective Mortgage Loan with one or more substitute mortgage loans that individually and collectively satisfy the requirements of the definition of "Qualifying Substitute Mortgage Loan" set forth in the applicable part Pooling and Servicing Agreement, and (ii) pay any corresponding Substitution Shortfall Amount, such substitution and payment to be effected in accordance with the terms of the Closing Schedule relating Pooling and Servicing Agreement. Any such repurchase or replacement of a Defective Mortgage Loan shall be on a whole loan, servicing released basis. The Seller shall have no obligation to monitor the Mortgage Loans regarding the existence of a Prepayment Charge is completeMaterial Breach or Material Document Defect, true and correct in all material respects at but if the date Seller discovers a Material Breach or dates respecting which such information is furnished and each Prepayment Charge is permissible and enforceable in accordance Material Document Defect with its terms upon respect to a Mortgage Loan, it will notify the mortgagor’s full and voluntary principal prepayment under applicable law, 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; (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 under applicable lawPurchaser.
Appears in 2 contracts
Samples: Mortgage Loan Purchase and Sale Agreement (Banc of America Commercial Mortgage Inc., Series 2007-1), Mortgage Loan Purchase and Sale Agreement (Banc of America Commercial Mortgage Inc., Series 2007-1)
Representations, Warranties and Covenants of the Seller. 5.01 The Seller hereby represents and warrants to the Purchaser, as Purchaser to the intent that each of the following representations and warranties is accurate in all respects and not misleading at the date hereof of this Agreement and that if for any reason there is any interval of time between the time of this Agreement and Completion, such representations and warranties will continue to be accurate in all respects and not misleading at all times subsequent to the date of this Agreement up to and including the Completion Date as if repeated on each such day immediately before Completion:
(a) it is the sole beneficial owner of, or otherwise has full authority, including all shareholder and/or regulatory authority, to sell, transfer or dispose of, the Shares;
(b) it is entitled to sell its Shares free from any claims, equities, liens, charges and encumbrances (including without limitation any claims of the Closing Datebeneficiaries or other persons under any settlement or trust document or otherwise);
(c) this Agreement constitutes and the other documents executed by it which are to be delivered at Completion will, when executed, constitute binding obligations of it in accordance with their respective terms;
(d) the execution and delivery of, and covenants, thatthe performance of its obligations under this Agreement will not:
(i) The Seller is a Delaware corporation with full corporate power and authority to conduct its business as presently conducted by it to the extent material to the consummation of the transactions contemplated herein. The Agreement has been duly authorized, executed and delivered by the Seller. The Seller had the full corporate power and authority to own the Mortgage Loans and to transfer and convey the Mortgage Loans to the Purchaser and has the full corporate power and authority to execute and deliver, engage in the transactions contemplated by, and perform and observe the terms and conditions of this Agreement;
(ii) The Seller has duly authorized the execution, delivery and performance of this Agreement, has duly executed and delivered this Agreement, and this Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a legal, valid and binding obligation of the Seller, enforceable against it in accordance with its terms except as the enforceability thereof may be limited by bankruptcy, insolvency or reorganization or by general principles of equity;
(iii) The execution, delivery and performance of this Agreement by the Seller (x) does not conflict and will not conflict with, does not breach and will not result in a breach of and does not constitute and will not any provision of the memorandum or articles of association (or other similar constitutional documents) of it (being a corporation or company); or
(ii) result in a breach of, or constitute a default (or an eventunder, which with notice or lapse of time or both, would constitute a default) under (A) any terms or provisions of the organizational documents of the Seller, (B) any term or provision of any material agreement, contract, instrument or indenture, to which the Seller it is a party or by which the Seller or any of its property it is bound, or ; or
(Ciii) result in a breach of any law, rule, regulation, order, judgment, writ, injunction judgment or decree of any court or governmental authority having jurisdiction over the Seller agency to which it is a party or any of its property and (y) does not create or impose and will not result in the creation or imposition of any lien, charge or encumbrance (other than any created hereby in favor of the Purchaser and its assignees) by which would have a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loans;it is bound.
(ive) No consentit acknowledges that no action has been or will be taken with any relevant securities, approval, authorization governmental or order of, registration or filing with, or notice on behalf of the Seller regulatory authorities in any jurisdiction with respect to any governmental authority or court is required, under federal laws or the laws of the State of New York, for the execution, delivery and validity or performance by the Seller of, or compliance by the Seller with, of this Agreement and confirms that (where applicable) it has obtained or the consummation by the Seller complied with all authorizations and/or regulations of any other transaction contemplated hereby and by the Pooling and Servicing Agreement; providedrelevant securities, however, that the Seller makes no representation governmental or warranty regarding federal or state securities laws regulatory authorities in connection with the sale execution, validity and performance of this Agreement.
5.02 The Seller shall not (save only as may be necessary to give effect to this Agreement) do or distribution allow and shall procure that no act or omission will occur before Completion which would constitute a material breach of any of the Certificates;Warranties if they were given at Completion or which would make any of the Warranties materially inaccurate or misleading if they were so given.
(v) The 5.03 In the event of it being found prior to Completion that any of the Warranties are materially untrue or incorrect, or in the event of any matter or thing arising or becoming known or being notified to the Purchaser which is materially inconsistent with any of the Warranties or in the event of the Seller is becoming unable or failing to do anything in any material respect required to be done by it at or before Completion, the Purchaser shall not in violation of, be bound to complete the purchase of the Shares and the execution and delivery of Purchaser may by written notice rescind this Agreement without liability on its part. The right conferred upon the Purchaser by this Clause is in addition to and without prejudice to any other rights of the Purchaser (including any rights to claim damages or compensation from the Seller by reason of any such breach or non-fulfilment) and its performance and compliance with the terms of this Agreement will failure to exercise it shall not constitute a violation with respect to, any order or decree waiver of any court such rights.
5.04 The Seller hereby undertakes to indemnify and keep indemnified the Purchaser against any loss or liability suffered by the Purchaser as a result of or in connection with any order or regulation breach of any federal, state, municipal or governmental agency having jurisdiction over the Seller or its assets, which violation might have consequences that would materially and adversely affect the condition (financial or otherwise) or the operation of the Seller or its assets or might have consequences Warranties and against any reasonable costs and expenses incurred in connection therewith provided that would materially and adversely affect the performance of its obligations and duties hereunder;
(vi) The Seller does not believe, nor does it have any reason or cause to believe, that it cannot perform each and every covenant indemnity contained in this Agreement;
(vii) Immediately prior Clause shall be without prejudice to the sale any other rights and remedies of the Mortgage Loans to the Purchaser as herein contemplated, the Seller was the owner of the related Mortgage and the indebtedness evidenced by the related Mortgage Note, and, upon the payment to the Seller of the Purchase Price, in the event that the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereof;
(viii) There are no actions or proceedings against, or investigations known to it of, the Seller before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans by the Seller or the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by the Seller of its obligations under, or validity or enforceability of, this Agreement;
(ix) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;
(x) The Seller has not dealt with any broker, investment banker, agent or other person, except for the Purchaser or any of its affiliates, that may be entitled relation to any commission or compensation in connection with the sale of the Mortgage Loans (except that an entity that previously financed the Seller’s ownership of the Mortgage Loans may be entitled to a fee to release its security interest in the Mortgage Loans, which fee shall have been paid and which security interest shall have been released on or prior to the Closing Date);
(xi) There is no litigation currently pending or, to the best of the Seller’s knowledge without independent investigation, threatened against the Seller that would reasonably be expected to adversely affect the transfer of the Mortgage Loans, the issuance of the Certificates or the execution, delivery, performance or enforceability of this Agreement, or that would result in a material adverse change in the financial condition of the Seller; and
(xii) The information set forth in the applicable part of the Closing Schedule relating to the existence of a Prepayment Charge 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 upon the mortgagor’s full and voluntary principal prepayment under applicable law, 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; (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 under applicable lawbreach.
Appears in 2 contracts
Samples: Shareholder Agreement (Studio Ii Brands Inc), Share Purchase Agreement (Studio Ii Brands Inc)
Representations, Warranties and Covenants of the Seller. The Seller hereby represents and warrants to the Purchaser, Purchaser as of the date hereof and as of the Closing Date, and covenants, covenants that:
(i1) The Seller is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware corporation with full corporate power and authority is duly authorized and qualified to conduct its transact any and all business as presently contemplated by this Agreement to be conducted by it the Seller in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent material necessary to ensure the consummation ability of the transactions contemplated herein. The Agreement has been duly authorized, executed Master Servicer to enforce each Mortgage Loan and delivered by to service the Seller. Mortgage Loans in accordance with the terms of the Pooling and Servicing Agreement;
(2) The Seller had the full corporate power and authority to own the originate, hold and sell each Mortgage Loans and to transfer and convey the Mortgage Loans to the Purchaser Loan and has the full corporate power and authority to execute service each Mortgage Loan, and deliverto execute, engage in deliver and perform, and to enter into and consummate the transactions contemplated by, by this Agreement and perform and observe the terms and conditions of this Agreement;
(ii) The Seller has duly authorized by all necessary corporate action on the part of the Seller the execution, delivery and performance of this Agreement, ; this Agreement has been duly executed and delivered this Agreement, by the Seller and this Agreement, assuming the due authorization, execution and delivery thereof by the Purchaser, constitutes a legal, valid and binding obligation of the Seller, enforceable against it the Seller in accordance with its terms terms, except as to the extent that (a) the enforceability thereof may be limited by bankruptcy, insolvency or reorganization or by general principles insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally and (b) the remedy of equityspecific 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;
(iii3) The execution, execution and delivery and performance of this Agreement by the Seller, the servicing of the Mortgage Loans by the Seller (x) does not conflict under the Pooling and Servicing Agreement, 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 Seller and will not conflict with, does not breach and will not (A) result in a breach of and does not constitute and will not constitute a default (or an event, which with notice or lapse of time or both, would constitute a default) under (A) any terms or provisions of the organizational documents of the Seller, (B) any term or provision of the charter or by-laws of the Seller 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, contract, agreement or instrument or indenture, to which the Seller is a party or by which the Seller or any of its property is it may be bound, or (C) any lawstatute, rule, regulation, order, judgment, writ, injunction order or decree regulation applicable to the Seller of any court court, regulatory body, administrative agency or governmental authority body having jurisdiction over the Seller; and the Seller 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 Seller's knowledge, would in the future materially and adversely affect, (x) the ability of the Seller to perform its property and obligations under this Agreement or (y) does not create the business, operations, financial condition, properties or impose and will not result in the creation or imposition of any lien, charge or encumbrance (other than any created hereby in favor assets of the Purchaser and its assignees) which would have Seller taken as a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loanswhole;
(iv4) No consent, approval, authorization or order of, registration of any court or filing with, governmental agency or notice on behalf of the Seller to any governmental authority or court body is required, under federal laws or the laws of the State of New York, required for the execution, delivery and performance by the Seller of, or compliance by the Seller with, this Agreement or the consummation by of the transactions contemplated hereby, or if any such consent, approval, authorization or order is required, the Seller of any other transaction contemplated hereby and by has obtained the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificatessame;
(v5) The Seller is not an approved originator/servicer for Fannie Mae or Freddie Max xx xoxx stanxxxx xxd is a HUD approved mortgagee pursuant to Section 203 and Section 211 of the National Housing Act; and
(6) Except as otherwise disclosed in violation ofthe Prospectus Supplement, and the execution and delivery of this Agreement by no litigation, action, suit, proceeding or investigation is pending against the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over the Seller or its assets, which violation might have consequences that would materially and adversely affect the condition (financial or otherwise) or the operation of the Seller or its assets or might have consequences that would materially and adversely affect the performance of its obligations and duties hereunder;
(vi) The Seller 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) Immediately prior to the sale of the Mortgage Loans to the Purchaser as herein contemplated, the Seller was the owner of the related Mortgage and the indebtedness evidenced by the related Mortgage Note, and, upon the payment to the Seller of the Purchase Price, in the event that the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereof;
(viii) There are no actions or proceedings against, or investigations known to it of, the Seller before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans by the Seller or the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by the Seller of its obligations under, or validity or enforceability of, this Agreement;
(ix) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;
(x) The Seller has not dealt with any broker, investment banker, agent or other person, except for the Purchaser or any of its affiliates, that may be entitled to any commission or compensation in connection with the sale of the Mortgage Loans (except that an entity that previously financed the Seller’s ownership of the Mortgage Loans may be entitled to a fee to release its security interest in the Mortgage Loans, which fee shall have been paid and which security interest shall have been released on or prior to the Closing Date);
(xi) There is no litigation currently pending or, to the best of the Seller’s knowledge without independent investigation, threatened against the Seller that would reasonably be expected to adversely affect the transfer of the Mortgage Loans, the issuance of the Certificates or the execution, delivery, performance delivery or enforceability of this Agreement, Agreement or that would result in a material adverse change in the financial condition ability of the Seller; and
(xii) The information set forth in Seller to service the applicable part Mortgage Loans or the Seller to perform any of the Closing Schedule relating to the existence of a Prepayment Charge 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 its other obligations hereunder in accordance with its the terms upon the mortgagor’s full and voluntary principal prepayment under applicable law, 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; (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 under applicable lawhereof.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Asset-Backed Pass-Through Certificates Series 2005-R2), Pooling and Servicing Agreement (Ameriquest Mortgage Securities Inc. Series 2005-R3)
Representations, Warranties and Covenants of the Seller. (a) The Seller hereby represents and warrants to the Purchaser, as of the date hereof and as of the Closing Date, and covenants, that:
(i) The Seller is a Delaware corporation with full corporate power limited liability company duly organized, validly existing and authority in good standing under the laws of the State of Nevada and is duly authorized and qualified to conduct its transact any and all business as presently contemplated by this Agreement to be conducted by it the Seller in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent material necessary to the consummation of the transactions contemplated herein. The Agreement has been duly authorized, executed and delivered by the Seller. ensure its ability to enforce each Mortgage Loan;
(ii) The Seller had the full corporate power and authority to own the hold and sell each Mortgage Loans and to transfer and convey the Mortgage Loans to the Purchaser Loan and has the full corporate power and authority to execute execute, deliver and deliverperform, engage in and to enter into and consummate the transactions contemplated by, by this Agreement and perform and observe the terms and conditions of this Agreement;
(ii) The Seller has duly authorized by all necessary corporate action on the part of the Seller the execution, delivery and performance of this Agreement, has duly executed and delivered this Agreement, ; and this Agreement, assuming the due authorization, execution and delivery thereof by the PurchaserPurchaser and the Originator, constitutes a legal, valid and binding obligation of the Seller, enforceable against it the Seller in accordance with its terms terms, except as to the extent that (a) the enforceability thereof may be limited by bankruptcy, insolvency or reorganization or by general principles insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally and (b) the remedy of equityspecific 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, execution and delivery and performance of this Agreement by the Seller, 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 Seller (x) does not conflict and will not conflict with, does not breach and will not (A) result in a breach of and does not constitute and will not constitute a default (or an event, which with notice or lapse of time or both, would constitute a default) under (A) any terms or provisions of the organizational documents of the Seller, (B) any term or provision of the articles of formation or operating agreement of the Seller 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, contract, agreement or instrument or indenture, to which the Seller is a party or by which the Seller or any of its property is it may be bound, or (C) any lawstatute, rule, regulation, order, judgment, writ, injunction order or decree regulation applicable to the Seller of any court court, regulatory body, administrative agency or governmental authority body having jurisdiction over the Seller; and the Seller 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 Seller's knowledge, would in the future materially and adversely affect, (x) the ability of the Seller to perform its property and obligations under this Agreement or (y) does not create the business, operations, financial condition, properties or impose and will not result in the creation or imposition of any lien, charge or encumbrance (other than any created hereby in favor assets of the Purchaser and its assignees) which would have Seller taken as a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loanswhole;
(iv) No consent, approval, authorization or order of, registration of any court or filing with, governmental agency or notice on behalf of the Seller to any governmental authority or court body is required, under federal laws or the laws of the State of New York, required for the execution, delivery and performance by the Seller of, or compliance by the Seller with, this Agreement or the consummation by of the transactions contemplated hereby, or if any such consent, approval, authorization or order is required, the Seller of any other transaction contemplated hereby and by has obtained the Pooling and Servicing Agreementsame; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificates;and
(v) The Seller No litigation is not in violation of, and the execution and delivery of this Agreement by pending against the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over the Seller or its assets, which violation might have consequences that would materially and adversely affect the condition (financial execution, delivery or otherwise) enforceability of this Agreement or the operation ability of the Seller to service the Mortgage Loans or its assets or might have consequences that would materially and adversely affect the performance to perform any of its other obligations and duties hereunder;hereunder in accordance with the terms hereof.
(vib) The Seller does Originator hereby represents and warrants to the Purchaser, as of the date hereof and as of the Closing Date, and covenants, that:
(i) The Originator is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware and is duly authorized and qualified to transact any and all business contemplated by this Agreement to be conducted by the Originator in any state in which a Mortgaged Property is located or is otherwise not believerequired under applicable law to effect such qualification and, nor does it have in any reason or cause event, is in compliance with the doing business laws of any such State, to believe, that it cannot perform the extent necessary to ensure its ability to enforce each Mortgage Loan and every covenant contained to service the Mortgage Loans in this accordance with the terms of the Pooling and Servicing Agreement;
(viiii) Immediately prior The Originator had the full corporate power and authority to originate, hold and sell each Mortgage Loan and has the sale of the full corporate power and authority to service each Mortgage Loans Loan, and to the Purchaser as herein contemplatedexecute, the Seller was the owner of the related Mortgage deliver and the indebtedness evidenced by the related Mortgage Noteperform, and, upon the payment and to the Seller of the Purchase Price, in the event that the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note enter into and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereof;
(viii) There are no actions or proceedings against, or investigations known to it of, the Seller before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans by the Seller or the consummation of consummate the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect has duly authorized by all necessary corporate action on the performance by the Seller of its obligations under, or validity or enforceability of, this Agreement;
(ix) The consummation part of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;
(x) The Seller has not dealt with any broker, investment banker, agent or other person, except for the Purchaser or any of its affiliates, that may be entitled to any commission or compensation in connection with the sale of the Mortgage Loans (except that an entity that previously financed the Seller’s ownership of the Mortgage Loans may be entitled to a fee to release its security interest in the Mortgage Loans, which fee shall have been paid and which security interest shall have been released on or prior to the Closing Date);
(xi) There is no litigation currently pending or, to the best of the Seller’s knowledge without independent investigation, threatened against the Seller that would reasonably be expected to adversely affect the transfer of the Mortgage Loans, the issuance of the Certificates or Originator the execution, delivery, delivery and performance or enforceability of this Agreement; and this Agreement, or that would result in assuming the due authorization, execution and delivery thereof by the Purchaser, constitutes a material adverse change in the financial condition legal, valid and binding obligation of the Seller; and
(xii) The information set forth in Originator, enforceable against the applicable part of the Closing Schedule relating to the existence of a Prepayment Charge 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 Originator in accordance with its terms upon the mortgagor’s full and voluntary principal prepayment under applicable lawterms, except to the extent that: that (1a) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ rights; ' rights generally and (2b) the collectability thereof remedy of specific performance and injunctive and other forms of equitable relief may be limited due 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 Originator, the servicing of the Mortgage Loans by the Originator under the Pooling and Servicing Agreement, 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 Originator and will not (A) result in a breach of any term or provision of the charter or by-laws of the Originator or (B) conflict with, result in a breach, violation or acceleration of, or result in connection with a foreclosure default under, the terms of any other material agreement or instrument to which the Originator is a party or by which it may be bound, or any statute, order or regulation applicable to the Originator of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Originator; and the Originator is not a party to, bound by, or in breach or violation of any indenture or other involuntary prepayment; 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 Originator's knowledge, would in the future materially and adversely affect, (x) the ability of the Originator to perform its obligations under this Agreement or (3y) subsequent changes the business, operations, financial condition, properties or assets of the Originator taken as a whole;
(iv) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Originator of, or compliance by the Originator with, this Agreement or the consummation of the transactions contemplated hereby, or if any such consent, approval, authorization or order is required, the Originator has obtained the same;
(v) The Originator is an approved Originator/servicer for Xxxxxx Xxx or Xxxxxxx Mac in applicable law may limit good standing and is a HUD approved mortgagee pursuant to Section 203 and Section 211 of the National Housing Act; and
(vi) No litigation is pending against the Originator that would materially and adversely affect the execution, delivery or prohibit enforceability thereof under applicable lawof this Agreement or the ability of the Originator to service the Mortgage Loans or to perform any of its other obligations hereunder in accordance with the terms hereof.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Salomon Bros Mort Sec Vii Inc Fl Rt MRT Ps THR Cert 1999 Aq1), Pooling and Servicing Agreement (Salomon Brothers Mort Sec Vii Inc Fl Rte Cert Se 1999-Aq2)
Representations, Warranties and Covenants of the Seller. The Upon the execution of the applicable Terms Agreement, the Seller hereby represents represents, warrants and warrants covenants to the Purchaser, each Underwriter as of the date hereof and as of the Closing Date, and covenants, thatDate (unless otherwise specified) as follows:
(ia) The Seller has been duly organized and is validly existing as a Delaware corporation with national banking association, in good standing under the laws of the United States. The Seller has, in all material respects, full corporate power and authority to own its properties and conduct its business as presently conducted described in the Disclosure Materials, and to execute, deliver and perform the Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement, this Agreement and the applicable Terms Agreement, and to consummate the transactions contemplated by it the Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement, this Agreement and the applicable Terms Agreement, and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the extent securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on the Seller and its subsidiaries, taken as a whole, or (ii) would have a material adverse effect on the Seller’s ability to consummate the transactions contemplated by the Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement, this Agreement and the applicable Terms Agreement.
(b) The execution, delivery and performance by the Seller of this Agreement, the applicable Terms Agreement, the Asset Representations Review Agreement, the Transfer Agreement, the Receivables Purchase Agreement and the Pooling and Servicing Agreement, and the consummation of the transactions contemplated herein. The Agreement has hereby and thereby have been duly authorized, executed and delivered authorized by all necessary corporate action on the part of the Seller. The Neither the execution and delivery by the Seller had of such instruments, nor the full corporate power and authority to own performance by the Mortgage Loans and to transfer and convey the Mortgage Loans to the Purchaser and has the full corporate power and authority to execute and deliver, engage in Seller of the transactions contemplated byherein or therein contemplated, and perform and observe nor the compliance by the Seller with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and conditions provisions of, or constitute a material default under, any of this Agreement;
the provisions of the Articles of Association or By-laws of the Seller, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Seller is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Seller’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument.
(c) The Seller has duly authorized the execution, delivery and performance of this Agreement, has duly executed and delivered this Agreement and the applicable Terms Agreement.
(d) The Seller has authorized the conveyance of the Receivables and the conveyance of an interest in the Seller’s interest in any related Funds Collateral to the Company under the Receivables Purchase Agreement.
(e) Complete and correct copies of publicly available portions of the Consolidated Reports of Condition and Income of the Bank for the year ended December 31, 2020 and the quarter ended March 31, 2021, as submitted to the Governors of the Federal Reserve System by the Bank, are publicly available through xxxxx://xxx.xxxxx.xxx/public/ManageFacsimiles.aspx. Except as set forth in or contemplated in the Preliminary Prospectus, there has been no material adverse change in the condition (financial or otherwise) of the Bank since December 31, 2020.
(f) Each of the Pooling and Servicing Agreement, the Receivables Purchase Agreement, the Transfer Agreement, and this Agreement, assuming due authorization, execution and delivery by the Purchaser, Asset Representations Review Agreement constitutes a legal, valid and binding obligation of the Seller, enforceable against it the Seller in accordance with its terms terms, except as to the extent that the enforceability thereof may be limited by subject to bankruptcy, insolvency insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general and the rights of creditors of national banking associations, as such laws would apply in the event of the insolvency, liquidation or reorganization or by other similar occurrence with respect to the Seller or in the event of any moratorium or similar occurrence affecting the Seller and to general principles of equity;. All approvals, authorizations, consents, orders or other actions of any court, governmental agency or body or official required in connection with the transfer of the Receivables pursuant to the Receivables Purchase Agreement, have been or will be taken or obtained on or before the Closing Date.
(iiig) (i) The executionMaster Trust is not now, delivery and performance following the issuance of the Collateral Certificate, will not be, required to be registered under the Investment Company Act of 1940, as amended (the “1940 Act”).
(ii) The Master Trust is not now, and immediately following the issuance of the Notes pursuant to the Indenture will not be, a “covered fund” for purposes of regulations adopted under Section 13 of the Bank Holding Company Act of 1956 (hereinafter referred to as the “Xxxxxxx Rule”). In reaching this Agreement by conclusion, although other statutory or regulatory exclusions or exemptions under the 1940 Act or the Xxxxxxx Rule may be available, the Seller has relied on the exclusion from registration set forth in Rule 3a-7 under the 1940 Act.
(xh) does not conflict The representations and warranties of the Seller in the Pooling and Servicing Agreement and the Receivables Purchase Agreement are true and correct in all material respects.
(i) The Seller has provided a written representation to each of the Hired NRSROs (as defined below), which satisfied the requirements of paragraph (a)(3)(iii) of Rule 17g-5 of the Exchange Act (“Rule 17g-5”), as amended (the “17g-5 Representation”). The Seller has complied, and will not conflict withcontinue to comply, does not breach and will not result in a breach of and does not constitute and will not constitute a default (or an eventwith the 17g-5 Representation, which with notice or lapse of time or both, would constitute a default) under (A) any terms or provisions of the organizational documents of the Seller, (B) any term or provision of any material agreement, contract, instrument or indenture, to which the Seller is a party or by which the Seller or any of its property is bound, or (C) any law, rule, regulation, order, judgment, writ, injunction or decree of any court or governmental authority having jurisdiction over the Seller or any of its property and (y) does not create or impose and will not result in the creation or imposition of any lien, charge or encumbrance (other than any created hereby in favor breach of the Purchaser and its assignees) which 17g-5 Representation that would not have a material adverse effect upon on the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loans;Notes.
(iv) No consent, approval, authorization or order of, registration or filing with, or notice on behalf of the Seller to any governmental authority or court is required, under federal laws or the laws of the State of New York, for the execution, delivery and performance by the Seller of, or compliance by the Seller with, this Agreement or the consummation by the Seller of any other transaction contemplated hereby and by the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificates;
(vj) The Seller is has not in violation of, and engaged any third party to provide due diligence services within the execution and delivery meaning of this Agreement Rule 17g-10(d)(1) under the Exchange Act or obtained any third-party due diligence report within the meaning of Rule 15Ga-2(d) under the Exchange Act with respect to the assets held by the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order Master Trust or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over the Seller or its assets, which violation might have consequences that would materially and adversely affect the condition (financial or otherwise) or the operation of the Seller or its assets or might have consequences that would materially and adversely affect the performance of its obligations and duties hereunder;
(vi) The Seller 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) Immediately prior to the sale of the Mortgage Loans to the Purchaser as herein contemplated, the Seller was the owner of the related Mortgage and the indebtedness evidenced by the related Mortgage Note, and, upon the payment to the Seller of the Purchase Price, in the event that the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereof;
(viii) There are no actions or proceedings against, or investigations known to it of, the Seller before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans by the Seller or the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by the Seller of its obligations under, or validity or enforceability of, this Agreement;other Program Agreements.
(ix) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;
(xk) The Seller has expects to comply, as of the date hereof, and does comply, as of the Closing Date, in all material respects with Regulation RR, 17 C.F.R. §246.1, et seq. (the “Credit Risk Retention Rules”), either directly or (to the extent permitted by the Credit Risk Retention Rules) through a “Wholly-Owned Affiliate” (as defined in the Credit Risk Retention Rules). The Seller, or one or more of its Wholly-Owned Affiliates, expects to satisfy, as of the date hereof, and does satisfy, on the Closing Date, the Credit Risk Retention Rules by maintaining a “seller’s interest” (as defined in the Credit Risk Retention Rules) in the Issuing Entity of not dealt less than 5% of the aggregate unpaid principal balance of all outstanding investor “ABS Interests” (as defined in the Credit Risk Retention Rules) in the Issuing Entity, determined in accordance with the Credit Risk Retention Rules, without any brokerimpermissible transfer, investment bankerhedging or financing of such retained interest.
(l) As used herein (i) “EU Securitization Regulation” refers to Regulation (EU) 2017/2402 of the European Parliament and of the Council of December 12, agent or 2017 laying down a general framework for securitization and creating a specific framework for simple, transparent and standardized securitization and amending certain other personEuropean Union directives and regulations, except as amended and (ii) “UK Securitization Regulation” means Regulation (EU) 2017/2402 as it forms part of UK domestic law under the European Union (Withdrawal) Xxx 0000, as amended by the Securitization (Amendment) (EU Exit) Regulations 2019. With reference to the EU Securitization Regulation and the UK Securitization Regulation, the Seller covenants and agrees that (i) as “originator” for the Purchaser purposes of each of the EU Securitization Regulation and the UK Securitization Regulation, it currently retains, and on an ongoing basis will retain, a material net economic interest that is not less than 5% of the nominal value of the securitized exposures (measured at origination), in a form that is intended to qualify as an originator’s interest as provided in option (b) of Article 6(3) of each of the EU Securitization Regulation and UK Securitization Regulation, by holding all the membership interest in the Company, which in turn holds all or part of the Transferor’s Interest; (ii) it will not (and will not permit the Company or any of its affiliatesother affiliates to) sell, that may be entitled to any commission transfer or compensation in connection with the sale of the Mortgage Loans (except that an entity that previously financed the Seller’s ownership of the Mortgage Loans may be entitled to a fee to release its security interest in the Mortgage Loans, which fee shall have been paid and which security interest shall have been released on otherwise surrender all or prior to the Closing Date);
(xi) There is no litigation currently pending or, to the best of the Seller’s knowledge without independent investigation, threatened against the Seller that would reasonably be expected to adversely affect the transfer of the Mortgage Loans, the issuance of the Certificates or the execution, delivery, performance or enforceability of this Agreement, or that would result in a material adverse change in the financial condition of the Seller; and
(xii) The information set forth in the applicable part of the Closing Schedule relating rights, benefits or obligations from the retained interest or subject it to the existence of a Prepayment Charge is completeany credit risk mitigation, 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 upon the mortgagor’s full and voluntary principal prepayment under applicable lawhedging, except to the extent that: permitted under each of the EU Securitization Regulation and UK Securitization Regulation (1) the enforceability thereof may be limited as supplemented by bankruptcy, insolvency, moratorium, receivership applicable delegated regulations and other similar laws relating to creditors’ rightsguidance); (2iii) it will not change the collectability thereof may be limited due retention option or the method of calculating its net economic interest in the securitized exposures while the Notes are outstanding, except under exceptional circumstances in accordance with each of the EU Securitization Regulation and UK Securitization Regulation (as supplemented by applicable delegated regulations and guidance); and (iv) it will provide ongoing confirmation of its continued compliance with its obligations in clauses (i) and (ii) in this paragraph in or concurrently with the delivery of each monthly certificateholders’ statement pursuant to acceleration in connection with a foreclosure or other involuntary prepayment; or (3) subsequent changes in applicable law may limit or prohibit enforceability thereof under applicable lawthe Series Supplement.
Appears in 2 contracts
Samples: Underwriting Agreement (Capital One Funding, LLC), Underwriting Agreement (Capital One Funding, LLC)
Representations, Warranties and Covenants of the Seller. The Seller hereby represents and warrants to the PurchaserPurchaser with respect to the Initial Mortgage Loans, as of the date hereof and as of the Closing Date, and covenantswith respect to the Subsequent Mortgage Loans as of the respective Subsequent Transfer Date or as of such date specifically provided herein, and covenants that:
(i1) The Seller is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware corporation with full corporate power and authority is duly authorized and qualified to conduct its transact any and all business as presently contemplated by this Agreement to be conducted by it the Seller in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent material necessary to ensure the consummation ability of the transactions contemplated herein. The Agreement has been duly authorized, executed Master Servicer to enforce each Mortgage Loan and delivered by to service the Seller. Mortgage Loans in accordance with the terms of the Pooling and Servicing Agreement;
(2) The Seller had the full corporate power and authority to own the hold and sell each Mortgage Loans and to transfer and convey the Mortgage Loans to the Purchaser Loan and has the full corporate power and authority to execute service each Mortgage Loan, and deliverto execute, engage in deliver and perform, and to enter into and consummate the transactions contemplated by, by this Agreement and perform and observe the terms and conditions of this Agreement;
(ii) The Seller has duly authorized by all necessary corporate action on the part of the Seller the execution, delivery and performance of this Agreement, ; this Agreement has been duly executed and delivered this Agreement, by the Seller; and this Agreement, assuming the due authorization, execution and delivery thereof by the Purchaser, constitutes a legal, valid and binding obligation of the Seller, enforceable against it the Seller in accordance with its terms terms, except as to the extent that (a) the enforceability thereof may be limited by bankruptcy, insolvency or reorganization or by general principles insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally and (b) the remedy of equityspecific 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;
(iii3) The execution, execution and delivery and performance of this Agreement by the Seller, the servicing of the Mortgage Loans by the Seller (x) does not conflict prior to the transfer thereof of the Master Servicer, 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 Seller and will not conflict with, does not breach and will not (A) result in a breach of and does not constitute and will not constitute a default (or an event, which with notice or lapse of time or both, would constitute a default) under (A) any terms or provisions of the organizational documents of the Seller, (B) any term or provision of the charter or by-laws of the Seller 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, contract, agreement or instrument or indenture, to which the Seller is a party or by which the Seller or any of its property is it may be bound, or (C) any lawstatute, rule, regulation, order, judgment, writ, injunction order or decree regulation applicable to the Seller of any court court, regulatory body, administrative agency or governmental authority body having jurisdiction over the Seller; and the Seller 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 Seller's knowledge, would in the future materially and adversely affect, (x) the ability of the Seller to perform its property and obligations under this Agreement or (y) does not create the business, operations, financial condition, properties or impose and will not result in the creation or imposition of any lien, charge or encumbrance (other than any created hereby in favor assets of the Purchaser and its assignees) which would have Seller taken as a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loanswhole;
(iv4) No consent, approval, authorization or order of, registration of any court or filing with, governmental agency or notice on behalf of the Seller to any governmental authority or court body is required, under federal laws or the laws of the State of New York, required for the execution, delivery and performance by the Seller of, or compliance by the Seller with, this Agreement or the consummation by of the transactions contemplated hereby, or if any such consent, approval, authorization or order is required, the Seller of any other transaction contemplated hereby and by has obtained the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificatessame;
(v5) The Seller is not an approved originator/servicer for Fannie Mae or Freddie Mac ix xxxx xxxndinx xxx xs a HUD approved mortgagee pursuant to Section 203 and Section 211 of the National Housing Act; and
(6) Except as otherwise disclosed in violation ofthe Prospectus Supplement, and dated November [__], 2004 (the execution and delivery of this Agreement by "Prospectus Supplement"), no litigation is pending against the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over the Seller or its assets, which violation might have consequences that would materially and adversely affect the condition (financial or otherwise) or the operation of the Seller or its assets or might have consequences that would materially and adversely affect the performance of its obligations and duties hereunder;
(vi) The Seller 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) Immediately prior to the sale of the Mortgage Loans to the Purchaser as herein contemplated, the Seller was the owner of the related Mortgage and the indebtedness evidenced by the related Mortgage Note, and, upon the payment to the Seller of the Purchase Price, in the event that the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereof;
(viii) There are no actions or proceedings against, or investigations known to it of, the Seller before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans by the Seller or the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by the Seller of its obligations under, or validity or enforceability of, this Agreement;
(ix) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;
(x) The Seller has not dealt with any broker, investment banker, agent or other person, except for the Purchaser or any of its affiliates, that may be entitled to any commission or compensation in connection with the sale of the Mortgage Loans (except that an entity that previously financed the Seller’s ownership of the Mortgage Loans may be entitled to a fee to release its security interest in the Mortgage Loans, which fee shall have been paid and which security interest shall have been released on or prior to the Closing Date);
(xi) There is no litigation currently pending or, to the best of the Seller’s knowledge without independent investigation, threatened against the Seller that would reasonably be expected to adversely affect the transfer of the Mortgage Loans, the issuance of the Certificates or the execution, delivery, performance delivery or enforceability of this Agreement, Agreement or that would result in a material adverse change in the financial condition ability of the Seller; and
(xii) The information set forth in Seller to service the applicable part Mortgage Loans or the Seller to perform any of the Closing Schedule relating to the existence of a Prepayment Charge 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 its other obligations hereunder in accordance with its the terms upon the mortgagor’s full and voluntary principal prepayment under applicable law, 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; (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 under applicable lawhereof.
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 Seller. The Seller hereby represents and warrants to the Purchaser, as of the date hereof and as of the Closing Date, and covenants, that:
(i) The Seller is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware corporation with full corporate power and authority is qualified and in good standing to conduct its do business in each jurisdiction where such qualification is necessary, except where the failure so to qualify would not reasonably be expected to have a material adverse effect on the Seller’s business as presently conducted by it or on the Seller’s ability to the extent material enter into this Agreement and to the consummation of consummate the transactions contemplated herein. The Agreement has been duly authorized, executed and delivered by the Seller. The Seller had the full corporate power and authority to own the Mortgage Loans and to transfer and convey the Mortgage Loans to the Purchaser and has the full corporate power and authority to execute and deliver, engage in the transactions contemplated by, and perform and observe the terms and conditions of this Agreement;hereby.
(ii) The Seller has duly authorized the execution, delivery and performance of this Agreement, has duly executed and delivered this Agreement, and this Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a legal, valid and binding obligation of the Seller, enforceable against it in accordance with its terms except as the enforceability thereof may be limited by bankruptcy, insolvency or reorganization or by general principles of equity;.
(iii) The execution, delivery and performance of this Agreement by the Seller (x) does not conflict and will not conflict with, does not breach and will not result in a breach of and does not constitute and will not constitute a default (or an event, which with notice or lapse of time or both, would constitute a default) under (A) any terms or provisions of the organizational documents of the Seller, (B) any term or provision of any material agreement, contract, instrument or indenture, to which the Seller is a party or by which the Seller or any of its property is bound, or (C) any law, rule, regulation, order, judgment, writ, injunction or decree of any court or governmental authority having jurisdiction over the Seller or any of its property and (y) does not create or impose and will not result in the creation or imposition of any lien, charge or encumbrance (other than any created hereby in favor of the Purchaser and its assignees) which would have a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loans;.
(iv) No consent, approval, authorization or order of, registration or filing with, or notice on behalf of the Seller to any governmental authority or court is required, under federal laws or the laws of the State of New York, for the execution, delivery and performance by the Seller of, or compliance by the Seller with, this Agreement or the consummation by the Seller of any other transaction contemplated hereby and by the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificates;.
(v) This Agreement does not contain any untrue statement of material fact or omit to state a material fact necessary to make the statements contained herein not misleading. The written statements, reports and other documents prepared and furnished or to be prepared and furnished by the Seller pursuant to this Agreement or in connection with the transactions contemplated hereby taken in the aggregate do not contain any untrue statement of material fact or omit to state a material fact necessary to make the statements contained therein not misleading.
(vi) The Seller is not in violation of, and the execution and delivery of this Agreement by the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over the Seller or its assets, which violation might have consequences that would materially and adversely affect the condition (financial or otherwise) or the operation of the Seller or its assets or might have consequences that would materially and adversely affect the performance of its obligations and duties hereunder;.
(vivii) The Seller 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;.
(viiviii) Immediately prior to the sale of the Mortgage Loans to the Purchaser as herein contemplated, the Seller was the owner of the related Mortgage and the indebtedness evidenced by the related Mortgage Note, and, upon the payment to the Seller of the Purchase Price, in the event that the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereof;.
(viiiix) There are no actions or proceedings against, or investigations known to it of, the Seller before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans by the Seller or the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by the Seller of its obligations under, or validity or enforceability of, this Agreement;.
(ixx) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;.
(xxi) The Seller has not dealt with any broker, investment banker, agent or other person, except for the Purchaser or any of its affiliates, that may be entitled to any commission or compensation in connection with the sale of the Mortgage Loans (except that an entity that previously financed the Seller’s ownership of the Mortgage Loans may be entitled to a fee to release its security interest in the Mortgage Loans, which fee shall have been paid and which security interest shall have been released on or prior to the Closing Date);.
(xixii) There is no litigation currently pending or, to the best of the Seller’s knowledge without independent investigation, threatened against the Seller that would reasonably be expected to adversely affect the transfer of the Mortgage Loans, the issuance of the Certificates or the execution, delivery, performance or enforceability of this Agreement, or that would result in a material adverse change in the financial condition of the Seller; and.
(xiixiii) The information set forth in the applicable part of the Closing Mortgage Loan Schedule relating to the existence of a Prepayment Charge is complete, true and correct in all material respects at the date or dates respecting which such information is furnished and each Prepayment Charge was originated in compliance with all applicable federal, state and local laws and is permissible and enforceable in accordance with its terms upon the mortgagor’s full and voluntary principal prepayment under applicable law, (except to the extent that: (1) that the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ rights; (2) rights generally or the collectability thereof may be limited due to acceleration in connection with a foreclosure or other involuntary prepayment; or (3foreclosure) subsequent changes in under the applicable law may limit or prohibit enforceability thereof under applicable state law.
(xiv) The Seller is a HUD approved mortgagee pursuant to Section 203 of the National Housing Act.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Nomura Asset Acceptance Corporation, Alternative Loan Trust, Series 2006-Ar1), Pooling and Servicing Agreement (Nomura Home Equity Loan, Inc., Home Equity Loan Trust, Series 2006-He2)
Representations, Warranties and Covenants of the Seller. The Seller hereby represents represents, warrants and warrants covenants to the PurchaserTrust Collateral Agent, the Insurer and the Servicer, which representations, warranties and covenants shall survive as of the date hereof and long as any Note shall be outstanding or this Agreement has not been terminated, that as of the Closing Date and each Subsequent Transfer Date, and covenants, that:
(ia) The the Seller is a Delaware corporation with full corporate power business trust duly organized, validly existing, and authority in good standing under the laws of the State of Delaware and has all licenses and approvals necessary to conduct carry on its business as presently now being conducted by and shall appoint and employ agents or attorneys in each jurisdiction where it shall be necessary to take action under this Agreement and the extent material to other Transaction Documents; the consummation of the transactions contemplated herein. The Agreement Seller has been duly authorized, executed and delivered by the Seller. The Seller had the full corporate power and authority to own the Mortgage Loans its property, to carry on its business as presently conducted, and to transfer and convey the Mortgage Loans to the Purchaser and has the full corporate power and authority to execute and deliverexecute, engage in the transactions contemplated by, deliver and perform and observe each of the terms and conditions of this Agreement;
(ii) The Seller has duly authorized Transaction Documents to which it is a party; the execution, delivery and performance of this Agreement, has duly executed and each of the Transaction Documents to which it is a party (including all instruments of transfer to be delivered this Agreement, and this Agreement, assuming due authorization, execution and delivery pursuant to any such Transaction Documents to which it is a party) by the Purchaser, constitutes a legal, valid Seller and binding obligation the consummation of the Sellertransactions contemplated hereby and thereby have been duly and validly authorized; each of the Transaction Documents to which it is a party evidences the valid, binding and enforceable against it in accordance with its terms except as obligations of the enforceability thereof may be limited by bankruptcy, Seller (subject to applicable bankruptcy and insolvency or reorganization or by laws and other similar laws affecting the enforcement of creditors' rights generally and to general principles of equity, regardless of whether enforcement is sought in a proceeding in equity or at law); and all requisite action has been taken by the Seller to make each of the Transaction Documents to which it is a party valid and binding upon the Seller (subject as aforesaid in the preceding clause);
(iiib) The execution, delivery and performance of this Agreement by the Seller (x) does not conflict and will not conflict with, does not breach and will not result in a breach of and does not constitute and will not constitute a default (or an event, which with notice or lapse of time or both, would constitute a default) under (A) any terms or provisions of the organizational documents of the Seller, (B) any term or provision of any material agreement, contract, instrument or indenture, to which the Seller is a not required to obtain the consent of any other party or by which obtain the Seller or any of its property is bound, or (C) any law, rule, regulation, order, judgment, writ, injunction or decree of any court or governmental authority having jurisdiction over the Seller or any of its property and (y) does not create or impose and will not result in the creation or imposition of any lien, charge or encumbrance (other than any created hereby in favor of the Purchaser and its assignees) which would have a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loans;
(iv) No consent, approvallicense, approval or authorization or order of, registration or filing with, or notice on behalf of the Seller to any governmental authority or court is required, under federal laws or the laws of the State of New York, for the execution, delivery and performance by the Seller of, or compliance by the Seller make any registration or declaration with, this Agreement any governmental authority, bureau or the consummation by the Seller of any other transaction contemplated hereby and by the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws agency in connection with the sale execution, delivery, performance, validity or distribution enforceability of the Certificatesthis Agreement or any other Transaction Document to which it is a party;
(vc) The Seller is not in violation of, and the execution and delivery of this Agreement by the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over the Seller or its assets, which violation might have consequences that would materially and adversely affect the condition (financial or otherwise) or the operation of the Seller or its assets or might have consequences that would materially and adversely affect the performance of its obligations and duties hereunder;
(vi) The Seller 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) Immediately prior to the sale of the Mortgage Loans to the Purchaser as herein contemplated, the Seller was the owner of the related Mortgage and the indebtedness evidenced by the related Mortgage Note, and, upon the payment to the Seller of the Purchase Price, in the event that the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereof;
(viii) There are no actions or proceedings against, or investigations known to it of, the Seller before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans by the Seller or the consummation of the transactions contemplated by this Agreement and the other Transaction Documents will not result in the breach of any term or provision of the trust agreement of the Seller or result in the breach of any term or provision of, or conflict with or constitute a default (Cwith or without notice, lapse of time or both) under or result in the acceleration of any obligation under, any agreement, indenture or loan or credit agreement or other instrument to which the Seller or its property is subject or result in the creation or imposition of any Lien upon any of its properties pursuant to the terms of any such agreement, indenture or loan or credit agreement or other instrument (aside from the lien created pursuant to this Agreement), or result in the violation of any law (including, without limitation, any bulk transfer or similar law), rule, regulation, order, judgment or decree to which the Seller or its property or the Receivables are subject;
(d) no statement, report or other document furnished or to be furnished pursuant to this Agreement or in connection with the transaction contemplated hereby contains or will, when furnished, contain any untrue statement of a material fact or omits or will, when furnished, omit to state a material fact necessary to make the statements contained therein not misleading, in light of the circumstances under which they were made;
(e) neither the Seller nor any of its subsidiaries or Affiliates is 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 may in the future materially and adversely affect, the ability of the Seller to perform its obligations under this Agreement or any other Transaction Document;
(f) this Agreement and each Conveyance Agreement, when duly executed and delivered, shall effect a valid sale, transfer and assignment of the Receivables and the remaining Trust Property, enforceable against the Seller and creditors of and purchasers from the Seller;
(g) there are no actions, suits, proceedings or investigations pending or, to the Seller's knowledge, threatened against the Seller or NAFI, before any court, regulatory body, administrative agency or other tribunal or governmental instrumentality having jurisdiction over the Seller or its properties (i) asserting the invalidity of this Agreement or any of the Transaction Documents, (ii) seeking to prevent the issuance of the Notes or the consummation of any of the transactions contemplated by this Agreement or any of the Transaction Documents, (iii) seeking any determination or ruling that might prohibit or materially and adversely affect the performance by the Seller of its obligations under, or the validity or enforceability of, this Agreement;
(ix) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;
(x) The Seller has not dealt with any broker, investment banker, agent or other person, except for the Purchaser or any of its affiliatesthe Transaction Documents, (iv) involving the Seller and which might adversely affect the federal income tax or other federal, state or local tax attributes of the Notes, or (v) that may be entitled to any commission could have a material adverse effect on the Receivables.
(h) the Seller has obtained or compensation made all necessary consents, approvals, waivers and notifications of creditors, lessors and other non-governmental persons, in each case, in connection with the sale execution and delivery of this Agreement and the other Transaction Documents, and the consummation of all the transactions herein and therein contemplated;
(i) the Seller shall not take any action to impair the Trust Collateral Agent's rights on behalf of the Mortgage Loans Noteholders and the Insurer in any Contract;
(except that an entity that previously financed j) the Seller has filed all federal, state, county, local and foreign income, franchise and other tax returns required to be filed by it through the date hereof, and has paid all taxes reflected as due thereon;
(k) since the date of its organization, the Seller has maintained its chief executive office in the State of Florida or the State of Delaware, and there have been no other locations of the Seller’s ownership of 's principal office during the Mortgage Loans may be entitled to a fee to release its security interest in the Mortgage Loans, which fee shall have been paid and which security interest shall have been released on or prior to four (4) months preceding the Closing Date);
(xil) There Seller is no litigation currently pending or, solvent and will not become insolvent after giving effect to the best of transactions contemplated hereunder; Seller is paying its debts as they become due; Seller, after giving effect to the Seller’s knowledge without independent investigationcontemplated transactions, threatened against will have adequate capital to conduct its business;
(m) since February 1995, "National Financial Auto Funding Trust" is the only trade name under which the Seller that would reasonably be expected has operated its business and, prior to adversely affect such date, NAFCO Funding Trust was the transfer of only trade name under which the Mortgage Loans, the issuance of the Certificates or the execution, delivery, performance or enforceability of this Agreement, or that would result in a material adverse change in the financial condition of the Seller; and
(xii) The information set forth in the applicable part of the Closing Schedule relating to the existence of a Prepayment Charge 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 Seller operated its terms upon the mortgagor’s full and voluntary principal prepayment under applicable law, 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; (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 under applicable law.business;
Appears in 2 contracts
Samples: Sale and Servicing Agreement (National Financial Auto Funding Trust), Sale and Servicing Agreement (National Auto Finance Co Inc)
Representations, Warranties and Covenants of the Seller. The Seller hereby represents and warrants to the Purchaser, as of the date hereof and as of the Closing Date, and covenants, that:
(i) The Seller is duly organized, validly existing and in good standing as a Delaware corporation under the laws of the State of California with full corporate power and authority to conduct its business as presently conducted by it to the extent material to the consummation of the transactions contemplated herein. The Agreement Seller has been duly authorized, executed and delivered by the Seller. The Seller had the full corporate power and authority to own the Mortgage Loans and to transfer and convey the Mortgage Loans to the Purchaser and has the full corporate power and authority to execute and deliver, engage in the transactions contemplated by, and perform and observe the terms and conditions of this Agreement;.
(ii) The Seller has duly authorized the execution, delivery and performance of this Agreement, has duly executed and delivered this Agreement, and this Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a legal, valid and binding obligation of the Seller, enforceable against it in accordance with its terms except as the enforceability thereof may be limited by bankruptcy, insolvency or reorganization or by general principles of equity;.
(iii) The execution, delivery and performance of this Agreement by the Seller (x) does not conflict and will not conflict with, does not breach and will not result in a breach of and does not constitute and will not constitute a default (or an event, which with notice or lapse of time or both, would constitute a default) under (A) any terms or provisions of the organizational documents articles of incorporation or by-laws of the Seller, (B) any term or provision of any material agreement, contract, instrument or indenture, to which the Seller is a party or by which the Seller or any of its property is bound, bound or (C) any law, rule, regulation, order, judgment, writ, injunction or decree of any court or governmental authority having jurisdiction over the Seller or any of its property and (y) does not create or impose and will not result in the creation or imposition of any lien, charge or encumbrance (other than any created hereby in favor of the Purchaser and its assignees) which would have a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loans;.
(iv) No consent, approval, authorization or order of, registration or filing with, or notice on behalf of the Seller to any governmental authority or court is required, under federal laws or the laws of the State of New YorkCalifornia, for the execution, delivery and performance by the Seller of, or compliance by the Seller with, this Agreement or the consummation by the Seller of any other transaction contemplated hereby and by the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificates;.
(v) This Agreement does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained herein not misleading. The written statements, reports and other documents prepared and furnished or to be prepared and furnished by the Seller pursuant to this Agreement or in connection with the transactions contemplated hereby taken in the aggregate do not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein not misleading.
(vi) The Seller is not in violation of, and the execution and delivery of this Agreement by the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over the Seller or its assets, which violation might have consequences that would materially and adversely affect the condition (financial or otherwise) or the operation of the Seller or its assets or might have consequences that would materially and adversely affect the performance of its obligations and duties hereunder;.
(vivii) The Seller 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;.
(viiviii) Immediately prior to the sale of the Mortgage Loans to the Purchaser as herein contemplated, the Seller was will be the owner of the related Mortgage and the indebtedness evidenced by the related Mortgage Note, and, upon the payment to the Seller of the Mortgage Loan Purchase Price, in the event that the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereof;.
(viiiix) There are no actions or proceedings against, or investigations known to it of, the Seller before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans by the Seller or the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by the Seller of its obligations under, or validity or enforceability of, this Agreement;.
(ixx) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;provisions.
(xxi) The [intentionally omitted]
(xii) Neither the Seller nor the Originator has not dealt with any broker, investment banker, agent or other person, except for the Purchaser or any of its affiliates, that may be entitled to any commission or compensation in connection with the sale of the Mortgage Loans (except that an entity that previously financed the Seller’s 's ownership of the Mortgage Loans may be entitled to a fee to release its security interest in the Mortgage Loans, which fee shall have been paid and which security interest shall have been released on or prior to the Closing Date);.
(xixiii) There is no litigation currently pending or, to the best of the Seller’s 's knowledge without independent investigation, threatened against the Seller or the Originator that would reasonably be expected to adversely affect the transfer of the Mortgage Loans, the issuance of the Certificates or the execution, delivery, performance or enforceability of this Agreement, or that would result in a material adverse change in the financial condition of the Seller; and
(xii) The information set forth in the applicable part of the Closing Schedule relating to the existence of a Prepayment Charge 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 upon the mortgagor’s full and voluntary principal prepayment under applicable law, 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; (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 under applicable law.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (New Century Home Equity Loan Trust Series 2003-5), Pooling and Servicing Agreement (New Century Mortgage Sec Home Equity Loan Ser 2003-4)
Representations, Warranties and Covenants of the Seller. The Seller hereby represents and warrants to the Purchaser, as of the date hereof and as of the Closing Date, and covenants, that:
(i) The Seller is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware corporation with full corporate power and authority is qualified and in good standing to conduct its do business in each jurisdiction where such qualification is necessary, except where the failure so to qualify would not reasonably be expected to have a material adverse effect on the Seller’s business as presently conducted by it or on the Seller’s ability to the extent material enter into this Agreement and to the consummation of consummate the transactions contemplated herein. The Agreement has been duly authorized, executed and delivered by the Seller. The Seller had the full corporate power and authority to own the Mortgage Loans and to transfer and convey the Mortgage Loans to the Purchaser and has the full corporate power and authority to execute and deliver, engage in the transactions contemplated by, and perform and observe the terms and conditions of this Agreement;hereby.
(ii) The Seller has duly authorized the execution, delivery and performance of this Agreement, has duly executed and delivered this Agreement, and this Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a legal, valid and binding obligation of the Seller, enforceable against it in accordance with its terms except as the enforceability thereof may be limited by bankruptcy, insolvency or reorganization or by general principles of equity;.
(iii) The execution, delivery and performance of this Agreement by the Seller (x) does not conflict and will not conflict with, does not breach and will not result in a breach of and does not constitute and will not constitute a default (or an event, which with notice or lapse of time or both, would constitute a default) under (A) any terms or provisions of the organizational documents of the Seller, (B) any term or provision of any material agreement, contract, instrument or indenture, to which the Seller is a party or by which the Seller or any of its property is bound, or (C) any law, rule, regulation, order, judgment, writ, injunction or decree of any court or governmental authority having jurisdiction over the Seller or any of its property and (y) does not create or impose and will not result in the creation or imposition of any lien, charge or encumbrance (other than any created hereby in favor of the Purchaser and its assignees) which would have a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loans;.
(iv) No consent, approval, authorization or order of, registration or filing with, or notice on behalf of the Seller to any governmental authority or court is required, under federal laws or the laws of the State of New York, for the execution, delivery and performance by the Seller of, or compliance by the Seller with, this Agreement or the consummation by the Seller of any other transaction contemplated hereby and by the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificates;.
(v) This Agreement does not contain any untrue statement of material fact or omit to state a material fact necessary to make the statements contained herein not misleading. The written statements, reports and other documents prepared and furnished or to be prepared and furnished by the Seller pursuant to this Agreement or in connection with the transactions contemplated hereby taken in the aggregate do not contain any untrue statement of material fact or omit to state a material fact necessary to make the statements contained therein not misleading.
(vi) The Seller is not in violation of, and the execution and delivery of this Agreement by the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over the Seller or its assets, which violation might have consequences that would materially and adversely affect the condition (financial or otherwise) or the operation of the Seller or its assets or might have consequences that would materially and adversely affect the performance of its obligations and duties hereunder;.
(vivii) The Seller 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;.
(viiviii) Immediately prior to the sale of the Mortgage Loans to the Purchaser as herein contemplated, the Seller was the owner of the related Mortgage and the indebtedness evidenced by the related Mortgage Note, and, upon the payment to the Seller of the Purchase Price, in the event that the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereof;.
(viiiix) There are no actions or proceedings against, or investigations known to it of, the Seller before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans by the Seller or the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by the Seller of its obligations under, or validity or enforceability of, this Agreement;.
(ixx) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;.
(xxi) The Seller has not dealt with any broker, investment banker, agent or other person, except for the Purchaser or any of its affiliates, that may be entitled to any commission or compensation in connection with the sale of the Mortgage Loans (except that an entity that previously financed the Seller’s ownership of the Mortgage Loans may be entitled to a fee to release its security interest in the Mortgage Loans, which fee shall have been paid and which security interest shall have been released on or prior to the Closing Date);.
(xixii) There is no litigation currently pending or, to the best of the Seller’s knowledge without independent investigation, threatened against the Seller that would reasonably be expected to adversely affect the transfer of the Mortgage Loans, the issuance of the Certificates or the execution, delivery, performance or enforceability of this Agreement, or that would result in a material adverse change in the financial condition of the Seller; and.
(xiixiii) The information set forth in the applicable part of the Closing Mortgage Loan Schedule relating to the existence of a Prepayment Charge is complete, true and correct in all material respects at the date or dates respecting which such information is furnished and each Prepayment Charge was originated in compliance with all applicable federal, state and local laws and is permissible and enforceable in accordance with its terms upon the mortgagor’s full and voluntary principal prepayment under applicable law, (except to the extent that: (1) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ rightsrights generally; (2) the collectability thereof may be limited due to acceleration in connection with a foreclosure or other involuntary prepaymentforeclosure; or (3) subsequent changes in applicable law may limit or prohibit enforceability thereof thereof) under the applicable state law.
(xiv) The Seller is a HUD approved mortgagee pursuant to Section 203 of the National Housing Act.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Nomura Asset Acceptance Corporation, Alternative Loan Trust, Series 2006-Wf1), Pooling and Servicing Agreement (Nomura Asset Acceptance Corporation, Alternative Loan Trust, Series 2006-Wf1)
Representations, Warranties and Covenants of the Seller. The Seller hereby represents and warrants to the Purchaser, as of the date hereof and as of the Closing Date, and covenants, that:
(i) The Seller is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware corporation with full corporate power and authority is qualified and in good standing to conduct its do business in each jurisdiction where such qualification is necessary, except where the failure to so qualify would not reasonably be expected to have a material adverse effect on the Seller’s business as presently conducted by it or on the Seller’s ability to the extent material enter into this Agreement and to the consummation of consummate the transactions contemplated herein. The Agreement has been duly authorized, executed and delivered by the Seller. The Seller had the full corporate power and authority to own the Mortgage Loans and to transfer and convey the Mortgage Loans to the Purchaser and has the full corporate power and authority to execute and deliver, engage in the transactions contemplated by, and perform and observe the terms and conditions of this Agreement;hereby.
(ii) The Seller has duly authorized the execution, delivery and performance of this Agreement, has duly executed and delivered this Agreement, and this Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a legal, valid and binding obligation of the Seller, enforceable against it in accordance with its terms except as the enforceability thereof may be limited by bankruptcy, insolvency or reorganization or by general principles of equity;.
(iii) The execution, delivery and performance of this Agreement by the Seller (x) does not conflict and will not conflict with, does not breach and will not result in a breach of and does not constitute and will not constitute a default (or an event, which with notice or lapse of time or both, would constitute a default) under (A) any terms or provisions of the organizational documents of the Seller, (B) any term or provision of any material agreement, contract, instrument or indenture, to which the Seller is a party or by which the Seller or any of its property is bound, or (C) any law, rule, regulation, order, judgment, writ, injunction or decree of any court or governmental authority having jurisdiction over the Seller or any of its property and (y) does not create or impose and will not result in the creation or imposition of any lien, charge or encumbrance (other than any created hereby in favor of the Purchaser and its assignees) which would have a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loans;.
(iv) No consent, approval, authorization or order of, registration or filing with, or notice on behalf of the Seller to any governmental authority or court is required, under federal laws or the laws of the State of New York, for the execution, delivery and performance by the Seller of, or compliance by the Seller with, this Agreement or the consummation by the Seller of any other transaction contemplated hereby and by the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificates;.
(v) This Agreement does not contain any untrue statement of material fact or omit to state a material fact necessary to make the statements contained herein not misleading. The written statements, reports and other documents prepared and furnished or to be prepared and furnished by the Seller pursuant to this Agreement or in connection with the transactions contemplated hereby taken in the aggregate do not contain any untrue statement of material fact or omit to state a material fact necessary to make the statements contained therein not misleading.
(vi) The Seller is not in violation of, and the execution and delivery of this Agreement by the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over the Seller or its assets, which violation might have consequences that would materially and adversely affect the condition (financial or otherwise) or the operation of the Seller or its assets or might have consequences that would materially and adversely affect the performance of its obligations and duties hereunder;.
(vivii) The Seller 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;.
(viiviii) Immediately prior to the sale of the Mortgage Loans to the Purchaser as herein contemplated, the Seller was the owner of the related Mortgage and the indebtedness evidenced by the related Mortgage Note, and, upon the payment to the Seller of the Purchase Price, in the event that the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereof;.
(viiiix) There are no actions or proceedings against, or investigations known to it of, the Seller before any court, administrative or other tribunal (A) that might prohibit its it from entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans by the Seller or the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by the Seller of its obligations under, or validity or enforceability of, this Agreement;.
(ixx) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;.
(xxi) The Seller has not dealt with any broker, investment banker, agent or other person, except for the Purchaser or any of its affiliates, that may be entitled to any commission or compensation in connection with the sale of the Mortgage Loans (except that an entity that previously financed the Seller’s ownership of the Mortgage Loans may be entitled to a fee to release its security interest in the Mortgage Loans, which fee shall have been paid and which security interest shall have been released on or prior to the Closing Date);.
(xixii) There is no litigation currently pending or, to the best of the Seller’s knowledge without independent investigation, threatened against the Seller that would reasonably be expected to adversely affect the transfer of the Mortgage Loans, the issuance of the Certificates or the execution, delivery, performance or enforceability of this Agreement, or that would result in a material adverse change in the financial condition of the Seller; and.
(xiixiii) The information set forth in the applicable part Seller is a HUD approved mortgagee pursuant to Section 203 of the Closing Schedule relating to the existence of a Prepayment Charge 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 upon the mortgagor’s full and voluntary principal prepayment under applicable law, 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; (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 under applicable lawNational Housing Act.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Nomura Home Equity Loan, Inc., Home Equity Loan Trust, Series 2007-3), Pooling and Servicing Agreement (Nomura Asset Acceptance Corporation, Alternative Loan Trust, Series 2007-2)
Representations, Warranties and Covenants of the Seller. The Seller hereby represents and warrants to the Purchaser, as of the date hereof and as of the Closing Date, and covenants, that:
(i) The Seller is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware corporation with full corporate power and authority is duly authorized and qualified to conduct its transact any and all business as presently contemplated by this Agreement to be conducted by it the Seller in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent material necessary to ensure the consummation ability of the transactions contemplated herein. The Agreement has been duly authorized, executed Master Servicer to enforce each Mortgage Loan and delivered by to service the Seller. Mortgage Loans in accordance with the terms of the Pooling and Servicing Agreement;
(ii) The Seller had the full corporate power and authority to own the hold and sell each Mortgage Loans and to transfer and convey the Mortgage Loans to the Purchaser Loan and has the full corporate power and authority to execute service each Mortgage Loan, and deliverto execute, engage in deliver and perform, and to enter into and consummate the transactions contemplated by, by this Agreement and perform and observe the terms and conditions of this Agreement;
(ii) The Seller has duly authorized by all necessary corporate action on the part of the Seller the execution, delivery and performance of this Agreement, ; this Agreement has been duly executed and delivered this Agreement, by the Seller; and this Agreement, assuming the due authorization, execution and delivery thereof by the Purchaser, constitutes a legal, valid and binding obligation of the Seller, enforceable against it the Seller in accordance with its terms terms, except as to the extent that (a) the enforceability thereof may be limited by bankruptcy, insolvency or reorganization or by general principles insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally and (b) the remedy of equityspecific 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, execution and delivery and performance of this Agreement by the Seller, the servicing of the Mortgage Loans by the Seller (x) does not conflict under the Pooling and Servicing Agreement, 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 Seller and will not conflict with, does not breach and will not (A) result in a breach of and does not constitute and will not constitute a default (or an event, which with notice or lapse of time or both, would constitute a default) under (A) any terms or provisions of the organizational documents of the Seller, (B) any term or provision of the charter or by-laws of the Seller 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, contract, agreement or instrument or indenture, to which the Seller is a party or by which the Seller or any of its property is it may be bound, or (C) any lawstatute, rule, regulation, order, judgment, writ, injunction order or decree regulation applicable to the Seller of any court court, regulatory body, administrative agency or governmental authority body having jurisdiction over the Seller; and the Seller 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 Seller's knowledge, would in the future materially and adversely affect, (x) the ability of the Seller to perform its property and obligations under this Agreement or (y) does not create the business, operations, financial condition, properties or impose and will not result in the creation or imposition of any lien, charge or encumbrance (other than any created hereby in favor assets of the Purchaser and its assignees) which would have Seller taken as a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loanswhole;
(iv) No consent, approval, authorization or order of, registration of any court or filing with, governmental agency or notice on behalf of the Seller to any governmental authority or court body is required, under federal laws or the laws of the State of New York, required for the execution, delivery and performance by the Seller of, or compliance by the Seller with, this Agreement or the consummation by of the transactions contemplated hereby, or if any such consent, approval, authorization or order is required, the Seller of any other transaction contemplated hereby and by has obtained the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificatessame;
(v) The Seller is not an approved originator/servicer for Fannie Mae or Freddie Mac in violation ofxxxx xtxxxing xxx xx a HUD approved mortgagee pursuant to Section 203 and Section 211 of the National Housing Act; and
(vi) Except as otherwise disclosed in the Prospectus Supplement, and the execution and delivery of this Agreement by no litigation is pending against the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over the Seller or its assets, which violation might have consequences that would materially and adversely affect the condition (financial or otherwise) or the operation of the Seller or its assets or might have consequences that would materially and adversely affect the performance of its obligations and duties hereunder;
(vi) The Seller 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) Immediately prior to the sale of the Mortgage Loans to the Purchaser as herein contemplated, the Seller was the owner of the related Mortgage and the indebtedness evidenced by the related Mortgage Note, and, upon the payment to the Seller of the Purchase Price, in the event that the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereof;
(viii) There are no actions or proceedings against, or investigations known to it of, the Seller before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans by the Seller or the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by the Seller of its obligations under, or validity or enforceability of, this Agreement;
(ix) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;
(x) The Seller has not dealt with any broker, investment banker, agent or other person, except for the Purchaser or any of its affiliates, that may be entitled to any commission or compensation in connection with the sale of the Mortgage Loans (except that an entity that previously financed the Seller’s ownership of the Mortgage Loans may be entitled to a fee to release its security interest in the Mortgage Loans, which fee shall have been paid and which security interest shall have been released on or prior to the Closing Date);
(xi) There is no litigation currently pending or, to the best of the Seller’s knowledge without independent investigation, threatened against the Seller that would reasonably be expected to adversely affect the transfer of the Mortgage Loans, the issuance of the Certificates or the execution, delivery, performance delivery or enforceability of this Agreement, Agreement or that would result in a material adverse change in the financial condition ability of the Seller; and
(xii) The information set forth in Originator to service the applicable part Mortgage Loans or the Seller to perform any of the Closing Schedule relating to the existence of a Prepayment Charge 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 its other obligations hereunder in accordance with its the terms upon the mortgagor’s full and voluntary principal prepayment under applicable law, 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; (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 under applicable lawhereof.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Argent Securities Inc Asst Back Pass THR Certs Ser 20003-W10), Pooling and Servicing Agreement (Asset-Backed Pass-Through Certificates Series 2004-W1)
Representations, Warranties and Covenants of the Seller. (a) The Seller hereby represents and warrants to and for the Purchaser, as benefit of the date hereof and Purchaser as of the Closing Date, and covenants, Date that:
(i) The Seller is a Delaware corporation with full corporate power and authority to conduct its business as presently conducted by it to the extent material to the consummation of the transactions contemplated herein. The Agreement has been national banking association, duly authorized, executed validly existing and delivered by in good standing under the Seller. The Seller had laws of the full corporate power and authority to own the Mortgage Loans and to transfer and convey the Mortgage Loans to the Purchaser and has the full corporate power and authority to execute and deliver, engage in the transactions contemplated by, and perform and observe the terms and conditions United States of this Agreement;America.
(ii) The execution and delivery of this Agreement by the Seller, and the performance of Seller's obligations under this Agreement, will not violate the Seller's organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets, which default or breach, in the Seller's good faith and commercially reasonable judgment is likely to affect materially and adversely either the ability of the Seller to perform its obligations under this Agreement or its financial condition.
(iii) The Seller has the full power and authority to enter into and perform its obligations under this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement, and this .
(iv) This Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a legalvalid, valid legal and binding obligation of the Seller, enforceable against it the Seller in accordance with its the terms except as the enforceability thereof may be limited by hereof, subject to (A) applicable bankruptcy, insolvency or reorganization or by insolvency, reorganization, fraudulent transfer, moratorium and other laws affecting the enforcement of creditors' rights generally and (B) general principles of equity;
(iii) The execution, delivery and performance regardless of this Agreement by the Seller (x) does not conflict and will not conflict with, does not breach and will not result whether such enforcement is considered in a breach of and does not constitute and will not constitute a default (proceeding in equity or an event, which with notice or lapse of time or both, would constitute a default) under (A) any terms or provisions of the organizational documents of the Seller, (B) any term or provision of any material agreement, contract, instrument or indenture, to which the Seller is a party or by which the Seller or any of its property is bound, or (C) any at law, rule, regulation, order, judgment, writ, injunction or decree of any court or governmental authority having jurisdiction over the Seller or any of its property and (y) does not create or impose and will not result in the creation or imposition of any lien, charge or encumbrance (other than any created hereby in favor of the Purchaser and its assignees) which would have a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loans;
(iv) No consent, approval, authorization or order of, registration or filing with, or notice on behalf of the Seller to any governmental authority or court is required, under federal laws or the laws of the State of New York, for the execution, delivery and performance by the Seller of, or compliance by the Seller with, this Agreement or the consummation by the Seller of any other transaction contemplated hereby and by the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificates;.
(v) The Seller is not in violation of, and the its execution and delivery of this Agreement by the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect toof, any law, any order or decree of any court or arbiter, or any order order, regulation or regulation demand of any federal, state, municipal state or local governmental agency having jurisdiction over the Seller or its assetsregulatory authority, which violation might have consequences that would violation, in the Seller's good faith and reasonable judgment, is likely to affect materially and adversely affect either the condition (financial or otherwise) or the operation ability of the Seller or its assets or might have consequences that would materially and adversely affect the performance of to perform its obligations and duties hereunder;under this Agreement or the financial condition of the Seller.
(vi) The Seller does not believe, nor does it have any reason or cause No litigation is pending with regard to believe, that it cannot perform each and every covenant contained in this Agreement;
(vii) Immediately prior to the sale of the Mortgage Loans to the Purchaser as herein contemplated, which the Seller was the owner has received service of the related Mortgage and the indebtedness evidenced by the related Mortgage Note, and, upon the payment to the Seller of the Purchase Price, in the event that the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereof;
(viii) There are no actions or proceedings against, or investigations known to it of, the Seller before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans by the Seller or the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by the Seller of its obligations under, or validity or enforceability of, this Agreement;
(ix) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;
(x) The Seller has not dealt with any broker, investment banker, agent or other person, except for the Purchaser or any of its affiliates, that may be entitled to any commission or compensation in connection with the sale of the Mortgage Loans (except that an entity that previously financed the Seller’s ownership of the Mortgage Loans may be entitled to a fee to release its security interest in the Mortgage Loans, which fee shall have been paid and which security interest shall have been released on or prior to the Closing Date);
(xi) There is no litigation currently pending process or, to the best of the Seller’s knowledge without independent investigation's knowledge, threatened against the Seller that which if determined adversely to the Seller would reasonably be expected to adversely affect prohibit the transfer of the Mortgage Loans, the issuance of the Certificates or the execution, delivery, performance or enforceability of Seller from entering into this Agreement, or that in the Seller's good faith and reasonable judgment, would result in a material adverse change in be likely to materially and adversely affect either the ability of the Seller to perform its obligations under this Agreement or the financial condition of the Seller; and.
(xiivii) No consent, approval, authorization or order of, or filing or registration with, any state or federal court or governmental agency or body is required for the consummation by the Seller of the transactions contemplated herein, except for those consents, approvals, authorizations or orders that previously have been obtained and those filings and registrations that previously have been completed, and except for those filings and recordings of loan documents and assignments thereof that are contemplated by the Pooling and Servicing Agreement to be completed after the Closing Date.
(b) The information Seller hereby makes the representations and warranties contained in Schedule II (subject to any exceptions thereto listed on Schedule IIA) to and for the benefit of the Purchaser as of the Closing Date (or as of such other dates specifically provided in the particular representation and warranty), with respect to (and solely with respect to) each Mortgage Loan.
(c) Upon discovery of any Material Breach or Material Document Defect, the Purchaser or its designee shall notify the Seller thereof in writing and request that the Seller correct or cure such Material Breach or Material Document Defect. Within 90 days of the earlier of discovery or receipt of written notice by the Seller that there has been a Material Breach or a Material Document Defect (such 90-day period, the "Initial Resolution Period"), the Seller shall (i) cure such Material Breach or Material Document Defect, as the case may be, in all material respects or (ii) repurchase each affected Mortgage Loan or REO Loan (each, a "Defective Mortgage Loan") at the related Purchase Price in accordance with the terms hereof and, if applicable, the terms of the Pooling and Servicing Agreement, with payment to be made in accordance with the reasonable directions of the Purchaser; provided that if the Seller certifies in writing to the Purchaser (i) that, as evidenced by an accompanying Opinion of Counsel, any such Material Breach or Material Document Defect, as the case may be, does not and will not cause the Defective Mortgage Loan, to fail to be a "qualified mortgage" within the meaning of Section 860G(a)(3) of the Code, (ii) that such Material Breach or Material Document Defect, as the case may be, is capable of being corrected or cured but not within the applicable Initial Resolution Period, (iii) that the Seller has commenced and is diligently proceeding with the cure of such Material Breach or Material Document Defect, as the case may be, within the applicable Initial Resolution Period, and (iv) that the Seller anticipates that such Material Breach or Material Document Defect, as the case may be, will be corrected or cured within an additional period not to exceed the Resolution Extension Period (as defined below), then the Seller shall have an additional period equal to the applicable Resolution Extension Period to complete such correction or cure or, failing such, to repurchase the Defective Mortgage Loan; and provided, further, if the Seller's obligation to repurchase any Defective Mortgage Loan as a result of a Material Breach or Material Document Defect arises within the three-month period commencing on the Closing Date (or within the two-year period commencing on the Closing Date if the Defective Mortgage Loan is a "defective obligation" within the meaning of Section 860G(a)(4)(B)(ii) of the Code and Treasury Regulations Section 1.860G-2(f)), and if the Defective Mortgage Loan is still subject to the Pooling and Servicing Agreement, the Seller may, at its option, in lieu of repurchasing such Defective Mortgage Loan (but, in any event, no later than such repurchase would have to have been completed), (i) replace such Defective Mortgage Loan with one or more substitute mortgage loans that individually and collectively satisfy the requirements of the definition of "Qualifying Substitute Mortgage Loan" set forth in the applicable part Pooling and Servicing Agreement, and (ii) pay any corresponding Substitution Shortfall Amount, such substitution and payment to be effected in accordance with the terms of the Closing Schedule relating Pooling and Servicing Agreement. Any such repurchase or replacement of a Defective Mortgage Loan shall be on a whole loan, servicing released basis. The Seller shall have no obligation to monitor the Mortgage Loans regarding the existence of a Prepayment Charge is completeMaterial Breach or Material Document Defect, true and correct in all material respects at but if the date Seller discovers a Material Breach or dates respecting which such information is furnished and each Prepayment Charge is permissible and enforceable in accordance Material Document Defect with its terms upon respect to a Mortgage Loan, it will notify the mortgagor’s full and voluntary principal prepayment under applicable law, 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; (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 under applicable lawPurchaser.
Appears in 2 contracts
Samples: Mortgage Loan Purchase and Sale Agreement (Banc of America Commercial Mortgage Inc., Series 2007-5), Mortgage Loan Purchase and Sale Agreement (Banc of America Commercial Mortgage Inc., Series 2008-Ls1)
Representations, Warranties and Covenants of the Seller. The Seller hereby represents and warrants and covenants to the Purchaser, as of the date hereof and as of the Closing Date, and covenants, that:
(i) The Seller is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware corporation with full corporate power and authority is duly authorized and qualified to conduct its transact any and all business as presently contemplated by this Agreement to be conducted by it the Seller in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such state, to the extent material necessary to ensure its ability to enforce each Mortgage Loan and to service the consummation Mortgage Loans in accordance with the terms of the transactions contemplated herein. The Agreement has been duly authorized, executed Pooling and delivered by the Seller. Servicing Agreement;
(ii) The Seller had the full corporate power and authority to own the originate, hold and sell each Mortgage Loans and to transfer and convey the Mortgage Loans to the Purchaser Loan and has the full corporate power and authority to execute service each Mortgage Loan, and deliverto execute, engage in deliver and perform, and to enter into and consummate the transactions contemplated by, by this Agreement and perform and observe the terms and conditions of this Agreement;
(ii) The Seller has duly authorized by all necessary corporate action on the part of the Seller the execution, delivery and performance of this Agreement, has duly executed and delivered this Agreement, ; and this Agreement, assuming the due authorization, execution and delivery thereof by the Purchaser, constitutes a legal, valid and binding obligation of the Seller, enforceable against it the Seller in accordance with its terms terms, except as to the extent that the enforceability thereof may be limited by (a) bankruptcy, insolvency or reorganization or by insolvency, moratorium, receivership, conservatorship, arrangement, moratorium and other similar laws relating to creditors’ rights generally and (b) the general principles of equity, whether such enforcement is sought in equity or at law;
(iii) The execution, execution and delivery and performance of this Agreement by the Seller, the servicing of the Mortgage Loans by the Seller (x) under the Pooling and Servicing Agreement, 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 Seller and does not conflict and will not conflict with, does not breach and will not (A) result in a breach of and does not constitute and will not constitute a default (any term or an event, which with notice or lapse of time or both, would constitute a default) under (A) any terms or provisions provision of the organizational documents charter or by-laws of the Seller, (B) any term conflict with, result in a breach, violation or provision acceleration of, or result in a default under, the terms of any other material agreement, contract, instrument or indenture, indenture to which the Seller is a party or by which the Seller or any of its property is it may be bound, or (C) any lawstatute, rule, regulation, order, judgment, writ, injunction order or decree regulation applicable to the Seller of any court court, regulatory body, administrative agency or governmental authority body having jurisdiction over the Seller or any of its property and or (yC) does not create or impose and will not result in the creation or imposition of any lien, charge or encumbrance (other than any created hereby in favor of the Purchaser and its assignees) which would have a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loans; and the Seller 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 Seller’s knowledge, would in the future result in the creation or imposition of any lien, charge or encumbrance which would have a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loans or materially and adversely affect (x) the ability of the Seller to perform its obligations under this Agreement or the Pooling and Servicing Agreement or (y) the business, operations, financial condition, properties or assets of the Seller taken as a whole;
(iv) No consent, approval, authorization authorization, or order of, registration any court or filing with, governmental agency or notice on behalf of the Seller to any governmental authority or court body is required, under federal laws or the laws of the State of New York, required for the execution, delivery and performance by the Seller of, or compliance by the Seller with, this Agreement or the consummation by of the transactions contemplated hereby, or if any such consent, approval, authorization or order is required, the Seller of any other transaction contemplated hereby and by has obtained the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificatessame;
(v) The Seller is not an approved seller/servicer for Xxxxxx Xxx or Freddie Mac in violation ofgood standing and is a HUD approved mortgagee pursuant to Section 203 and Section 211 of the National Housing Act;
(vi) No litigation or proceeding is pending or, and to the execution and delivery best knowledge of this Agreement by the Seller, threatened, against the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over the Seller or its assets, which violation might have consequences that would materially and adversely affect the condition (financial execution, delivery or otherwise) enforceability of this Agreement or the operation Pooling and Servicing Agreement or the issuance of the Certificates or the ability of the Seller to service the Mortgage Loans or to perform any of its assets or might have consequences other obligations hereunder in accordance with the terms hereof and the terms of the Pooling and Servicing Agreement or, that would materially and adversely affect result in a material adverse change in the performance financial or operating conditions of its obligations and duties hereunder;
(vi) The Seller does not believe, nor does it have any reason or cause to believe, that it cannot perform each and every covenant contained in this Agreementthe Seller;
(vii) Immediately prior No certificate of an officer, statement or other information furnished in writing or report delivered by the Seller to the sale Purchaser, any Affiliate of the Purchaser or the Trustee for use in connection with the purchase of the Mortgage Loans to the Purchaser as herein contemplated, the Seller was the owner of the related Mortgage and the indebtedness evidenced by transactions contemplated hereunder and under the related Mortgage NotePooling and Servicing Agreement contains any untrue statement of a material fact, andor omits a material fact necessary to make the information, upon the payment to the Seller of the Purchase Pricecertificate, statement or report not misleading in the event that the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereofany material respect;
(viii) There are no actions or proceedings against, or investigations known to it of, the Seller before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans by the Seller or the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by the Seller of its obligations under, or validity or enforceability of, this Agreement;
(ix) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;
(x) The Seller has not dealt with any broker, investment banker, agent or other person, except for the Purchaser or any of its affiliates, that may be entitled to any commission or compensation in connection with the sale of the Mortgage Loans (except that an entity that previously financed the Seller’s ownership of the Mortgage Loans may be entitled to a fee to release its security interest in the Mortgage Loans, which fee shall have been paid and which security interest shall have been released on or prior to the Closing Date);
(xiix) There is no litigation currently pending orEach Mortgage Note, each Mortgage, each Assignment and any other document required to be delivered by or on behalf of the Seller under this Agreement or the Pooling and Servicing Agreement to the best Purchaser or any assignee, transferee or designee of the Seller’s knowledge without independent investigationPurchaser for each Mortgage Loan has been or will be, threatened against in accordance with Section 4(b) hereof, delivered to the Purchaser or any such assignee, transferee or designee. With respect to each Mortgage Loan, the Seller is in possession of a complete Mortgage File in compliance with the Pooling and Servicing Agreement, except for such documents that would reasonably be expected have been delivered (1) to adversely affect the Purchaser or any assignee, transferee or designee of the Purchaser or (2) for recording to the appropriate public recording office and have not yet been returned;
(x) The Seller (A) is a solvent entity and is paying its debts as they become due, (B) immediately after giving effect to the transfer of the Mortgage Loans, will be a solvent entity and will have sufficient resources to pay its debts as they become due and (C) did not sell the issuance Mortgage Loans to the Purchaser with the intent to hinder, delay or defraud any of the Certificates or the execution, delivery, performance or enforceability of this Agreement, or that would result in a material adverse change in the financial condition of the Sellerits creditors; and
(xiixi) The information set forth in the applicable part transfer of the Closing Schedule relating Mortgage Loans to the existence of a Prepayment Charge is complete, true and correct in all material respects Purchaser at the date or dates respecting which such information is furnished Closing Date will be treated by the Seller for financial accounting and each Prepayment Charge is permissible and enforceable in accordance with its terms upon the mortgagor’s full and voluntary principal prepayment under applicable law, 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; (2) the collectability thereof may be limited due to acceleration in connection with reporting purposes as a foreclosure or other involuntary prepayment; or (3) subsequent changes in applicable law may limit or prohibit enforceability thereof under applicable lawsale of assets.
Appears in 2 contracts
Samples: 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 Seller. The Seller hereby represents and warrants to the Purchaser, Purchaser as of the date hereof and as of the Closing Date, and covenants, covenants that:
(i1) The Seller is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware corporation with full corporate power and authority is duly authorized and qualified to conduct its transact any and all business as presently contemplated by this Agreement to be conducted by it the Seller in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent material necessary to ensure the consummation ability of the transactions contemplated herein. The Agreement has been duly authorized, executed Master Servicer to enforce each Mortgage Loan and delivered by to service the Seller. Mortgage Loans in accordance with the terms of the Pooling and Servicing Agreement;
(2) The Seller had the full corporate power and authority to own the originate, hold and sell each Mortgage Loans and to transfer and convey the Mortgage Loans to the Purchaser Loan and has the full corporate power and authority to execute service each Mortgage Loan, and deliverto execute, engage in deliver and perform, and to enter into and consummate the transactions contemplated by, by this Agreement and perform and observe the terms and conditions of this Agreement;
(ii) The Seller has duly authorized by all necessary corporate action on the part of the Seller the execution, delivery and performance of this Agreement, ; this Agreement has been duly executed and delivered this Agreement, by the Seller and this Agreement, assuming the due authorization, execution and delivery thereof by the Purchaser, constitutes a legal, valid and binding obligation of the Seller, enforceable against it the Seller in accordance with its terms terms, except as to the extent that (a) the enforceability thereof may be limited by bankruptcy, insolvency or reorganization or by general principles insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally and (b) the remedy of equityspecific 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;
(iii3) The execution, execution and delivery and performance of this Agreement by the Seller, the servicing of the Mortgage Loans by the Seller (x) does not conflict under the Pooling and Servicing Agreement, 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 Seller and will not conflict with, does not breach and will not (A) result in a breach of and does not constitute and will not constitute a default (or an event, which with notice or lapse of time or both, would constitute a default) under (A) any terms or provisions of the organizational documents of the Seller, (B) any term or provision of the charter or by-laws of the Seller 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, contract, agreement or instrument or indenture, to which the Seller is a party or by which the Seller or any of its property is it may be bound, or (C) any lawstatute, rule, regulation, order, judgment, writ, injunction order or decree regulation applicable to the Seller of any court court, regulatory body, administrative agency or governmental authority body having jurisdiction over the Seller; and the Seller 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 Seller's knowledge, would in the future materially and adversely affect, (x) the ability of the Seller to perform its property and obligations under this Agreement or (y) does not create the business, operations, financial condition, properties or impose and will not result in the creation or imposition of any lien, charge or encumbrance (other than any created hereby in favor assets of the Purchaser and its assignees) which would have Seller taken as a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loanswhole;
(iv4) No consent, approval, authorization or order of, registration of any court or filing with, governmental agency or notice on behalf of the Seller to any governmental authority or court body is required, under federal laws or the laws of the State of New York, required for the execution, delivery and performance by the Seller of, or compliance by the Seller with, this Agreement or the consummation by of the transactions contemplated hereby, or if any such consent, approval, authorization or order is required, the Seller of any other transaction contemplated hereby and by has obtained the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificatessame;
(v5) The Seller is not an approved originator/servicer for Xxxxxx Xxx or Xxxxxxx Mac in violation ofgood standing and is a HUD approved mortgagee pursuant to Section 203 and Section 211 of the National Housing Act; and
(6) Except as otherwise disclosed in the Prospectus Supplement, and the execution and delivery of this Agreement by no litigation, action, suit, proceeding or investigation is pending against the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over the Seller or its assets, which violation might have consequences that would materially and adversely affect the condition (financial or otherwise) or the operation of the Seller or its assets or might have consequences that would materially and adversely affect the performance of its obligations and duties hereunder;
(vi) The Seller 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) Immediately prior to the sale of the Mortgage Loans to the Purchaser as herein contemplated, the Seller was the owner of the related Mortgage and the indebtedness evidenced by the related Mortgage Note, and, upon the payment to the Seller of the Purchase Price, in the event that the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereof;
(viii) There are no actions or proceedings against, or investigations known to it of, the Seller before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans by the Seller or the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by the Seller of its obligations under, or validity or enforceability of, this Agreement;
(ix) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;
(x) The Seller has not dealt with any broker, investment banker, agent or other person, except for the Purchaser or any of its affiliates, that may be entitled to any commission or compensation in connection with the sale of the Mortgage Loans (except that an entity that previously financed the Seller’s ownership of the Mortgage Loans may be entitled to a fee to release its security interest in the Mortgage Loans, which fee shall have been paid and which security interest shall have been released on or prior to the Closing Date);
(xi) There is no litigation currently pending or, to the best of the Seller’s knowledge without independent investigation, threatened against the Seller that would reasonably be expected to adversely affect the transfer of the Mortgage Loans, the issuance of the Certificates or the execution, delivery, performance delivery or enforceability of this Agreement, Agreement or that would result in a material adverse change in the financial condition ability of the Seller; and
(xii) The information set forth in Seller to service the applicable part Mortgage Loans or the Seller to perform any of the Closing Schedule relating to the existence of a Prepayment Charge 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 its other obligations hereunder in accordance with its the terms upon the mortgagor’s full and voluntary principal prepayment under applicable law, 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; (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 under applicable lawhereof.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Ameriquest Mortgage Securities Inc. Series 2005-R1), Pooling and Servicing Agreement (Ameriquest Mortgage Securities Inc. Series 2005-R3)
Representations, Warranties and Covenants of the Seller. (a) The Seller hereby represents makes, as of the date hereof and warrants as of the Closing Date (or as of such other date specifically provided in the particular representation or warranty), to and for the benefit of the Purchaser, and its successors and assigns (including without limitation the Trustee and the holders of the Certificates), each of the representations and warranties set forth in Exhibit C, with such changes or modifications as may be permitted or required by the Rating Agencies.
(b) In addition, the Seller, as of the date hereof and as of the Closing Date, hereby represents and covenantswarrants to, and covenants with, the Purchaser that:
(i) The Seller is a Delaware corporation with full corporate duly organized, validly existing and in good standing under the laws of the State of Delaware. The Seller has the requisite power and authority to conduct its business as presently conducted by it to the extent material to the consummation of the transactions contemplated herein. The Agreement has been duly authorized, executed and delivered by the Seller. The Seller had the full corporate power and authority legal right to own the Mortgage Loans and to transfer and convey the Mortgage Loans to the Purchaser and has the full corporate requisite power and authority and legal right to execute and deliver, engage in the transactions contemplated by, and perform and observe the terms and conditions of of, this Agreement;.
(ii) The This Agreement has been duly and validly authorized, executed and delivered by the Seller, all requisite action by the Seller has duly authorized been taken in connection therewith, and (assuming the due authorization, execution and delivery hereof by the Purchaser) this Agreement constitutes the valid, legal and binding agreement of the Seller, enforceable against the Seller in accordance with its terms, except as such enforcement may be limited by (A) laws relating to bankruptcy, insolvency, reorganization, receivership or moratorium, (B) other laws relating to or affecting the rights of creditors generally, (C) general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law) or (D) public policy considerations underlying the securities laws to the extent that such public policy considerations limit the enforceability of the provisions of this Agreement that purport to provide indemnification from liabilities under applicable securities laws.
(iii) No consent, approval, authorization or order of, registration or filing with, or notice to, any governmental authority or court, is required, under federal or state law, for the execution, delivery and performance of or compliance by the Seller with this Agreement, has duly executed or the consummation by the Seller of any transaction contemplated hereby, other than (1) the filing or recording of financing statements, instruments of assignment and delivered this Agreement, and this Agreement, assuming due authorization, execution and delivery by other similar documents necessary in connection with Seller's sale of the Mortgage Loans to the Purchaser, constitutes (2) such consents, approvals, authorizations, qualifications, registrations, filings or notices as have been obtained or made and (3) where the lack of such consent, approval, authorization, qualification, registration, filing or notice would not have a legal, valid and binding obligation material adverse effect on the performance by the Seller under this Agreement.
(iv) Neither the transfer of the SellerMortgage Loans to the Purchaser, enforceable against it in accordance with its terms except as nor the enforceability thereof may be limited by bankruptcy, insolvency or reorganization or by general principles of equity;
(iii) The execution, delivery and or performance of this Agreement by the Seller (x) does not conflict and Seller, conflicts or will not conflict with, does not breach and results or will not result in a breach of and does not constitute and of, or constitutes or will not constitute a default (or an event, which with notice or lapse of time or both, would constitute a default) under (A) any terms term or provisions provision of the organizational documents certificate of incorporation or by-laws of the Seller, (B) any term or provision of any material agreement, contract, instrument or indenture, to which the Seller is a party or by which may be applicable to the Seller or any of its property is boundassets, or (C) any law, rule, regulation, order, judgment, writ, injunction or decree of any court or governmental authority having jurisdiction over the Seller or any of its property and (y) does not create or impose and will not result in the creation or imposition of any lien, charge or encumbrance (other than any created hereby in favor of the Purchaser and its assignees) which would have a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loans;
(iv) No consent, approval, authorization or order of, registration or filing with, or notice on behalf of the Seller to any governmental authority or court is required, under federal laws or the laws of the State of New York, for the execution, delivery and performance by the Seller of, or compliance by the Seller with, this Agreement or the consummation by the Seller of any other transaction contemplated hereby and by the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificates;assets.
(v) The Seller is not in violation of, and the execution and delivery of this Agreement by the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over the Seller or its assets, which violation might have consequences that would materially and adversely affect the condition (financial or otherwise) or the operation of the Seller or its assets or might have consequences that would materially and adversely affect the performance of its obligations and duties hereunder;
(vi) The Seller 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) Immediately prior to the sale of the Mortgage Loans to the Purchaser as herein contemplated, the Seller was the owner of the related Mortgage and the indebtedness evidenced by the related Mortgage Note, and, upon the payment to the Seller of the Purchase Price, in the event that the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereof;
(viii) There are no actions or proceedings against, or investigations known to it of, the Seller pending or, to the Seller's knowledge, threatened against the Seller before any court, administrative agency or other tribunal (A) tribunal, the outcome of which could reasonably be expected to adversely affect the transfer of the Mortgage Loans to the Purchaser or the execution or delivery by, or enforceability against, the Seller of this Agreement or to have an effect on the financial condition of the Seller that might prohibit would materially and adversely affect the ability of the Seller to perform its entering into obligations under this Agreement.
(vi) No certificate, statement, report or other information furnished in writing by the Seller to the Purchaser, any affiliate of the Purchaser or a Rating Agency for use in connection with the purchase of the Mortgage Loans and the transactions contemplated hereunder contains any untrue statement of a material fact or omits to state a material fact necessary to make the certificate, statement, report or other information not misleading.
(Bvii) seeking The Seller has not dealt with any broker, investment banker, agent or other person, except for the Purchaser, the Underwriter or any of their respective affiliates, that may be entitled to prevent any commission or compensation in connection with the sale of the Mortgage Loans by the Seller or the consummation of any of the other transactions contemplated by this Agreement or hereby.
(Cviii) that might prohibit or materially and adversely affect The transfer of the performance Mortgage Loans to the Purchaser on the Closing Date will be treated by the Seller for financial accounting and reporting purposes as a sale of its obligations under, or validity or enforceability of, this Agreement;assets.
(ix) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages Loans by the Seller pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any such as may have been complied with;.
(x) The Seller has not dealt with any broker, investment banker, agent or other person, except for the Purchaser or any of its affiliates, that may be entitled Insofar as it relates to any commission or compensation in connection with the sale of the Mortgage Loans (except that an entity that previously financed the Seller’s ownership of the Mortgage Loans may be entitled to a fee to release its security interest in the Mortgage Loans, which fee shall have been paid and which security interest shall have been released on or prior to the Closing Date);
(xi) There is no litigation currently pending or, to the best of the Seller’s knowledge without independent investigation, threatened against the Seller that would reasonably be expected to adversely affect the transfer of the Mortgage Loans, the issuance of related Mortgaged Properties and/or the Certificates or related Mortgagors, the execution, delivery, performance or enforceability of this Agreement, or that would result in a material adverse change in the financial condition of the Seller; and
(xii) The information set forth on the Master Tape (as defined in the applicable part of the Closing Schedule relating to the existence of a Prepayment Charge Section 9) is complete, true and correct in all material respects.
(xi) The Seller's Information (as defined in Section 9 below) does not contain any untrue statement of material fact or omit to state a material fact necessary to make the statements therein, in the light of circumstances under which they were made, not misleading.
(xii) The Seller does not believe, nor does it have any reason to believe, that it cannot perform in all material respects at each and every covenant on its part in this Agreement.
(c) Upon discovery by any of the date parties hereto of a breach of any of the representations and warranties made pursuant to and set forth in subsection (b) above which materially and adversely affects the interests of the Purchaser or dates respecting a breach of any of the representations and warranties made pursuant to subsection (a) above and set forth in Exhibit C which materially and adversely affects the value of any Mortgage Loan or the interests therein of the Purchaser or its successors and assigns (including without limitation the Trustee and the holders of the Certificates), the party discovering such information is furnished and each Prepayment Charge is permissible and enforceable in accordance with its terms upon the mortgagor’s full and voluntary principal prepayment under applicable law, except breach shall give prompt written notice to the extent that: (1) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ rights; (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 under applicable lawparty hereto.
Appears in 2 contracts
Samples: Mortgage Loan Purchase Agreement (Morgan Stanley Capital I Inc), Mortgage Loan Purchase Agreement (Morgan Stanley Capital I Inc)
Representations, Warranties and Covenants of the Seller. (a) The Seller hereby represents and warrants to and for the Purchaser, as benefit of the date hereof and Purchaser as of the Closing Date, and covenants, Date that:
(i) The Seller is a Delaware corporation with full corporate power and authority to conduct its business as presently conducted by it to the extent material to the consummation of the transactions contemplated herein. The Agreement has been national banking association, duly authorized, executed validly existing and delivered by in good standing under the Seller. The Seller had laws of the full corporate power and authority to own the Mortgage Loans and to transfer and convey the Mortgage Loans to the Purchaser and has the full corporate power and authority to execute and deliver, engage in the transactions contemplated by, and perform and observe the terms and conditions United States of this Agreement;America.
(ii) The execution and delivery of this Agreement by the Seller, and the performance of Seller's obligations under this Agreement, will not violate the Seller's organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets, which default or breach, in the Seller's good faith and commercially reasonable judgment is likely to affect materially and adversely either the ability of the Seller to perform its obligations under this Agreement or its financial condition.
(iii) The Seller has the full power and authority to enter into and perform its obligations under this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement, and this .
(iv) This Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a legalvalid, valid legal and binding obligation of the Seller, enforceable against it the Seller in accordance with its the terms except as the enforceability thereof may be limited by hereof, subject to (A) applicable bankruptcy, insolvency or reorganization or by insolvency, reorganization, fraudulent transfer, moratorium and other laws affecting the enforcement of creditors' rights generally and (B) general principles of equity;
(iii) The execution, delivery and performance regardless of this Agreement by the Seller (x) does not conflict and will not conflict with, does not breach and will not result whether such enforcement is considered in a breach of and does not constitute and will not constitute a default (proceeding in equity or an event, which with notice or lapse of time or both, would constitute a default) under (A) any terms or provisions of the organizational documents of the Seller, (B) any term or provision of any material agreement, contract, instrument or indenture, to which the Seller is a party or by which the Seller or any of its property is bound, or (C) any at law, rule, regulation, order, judgment, writ, injunction or decree of any court or governmental authority having jurisdiction over the Seller or any of its property and (y) does not create or impose and will not result in the creation or imposition of any lien, charge or encumbrance (other than any created hereby in favor of the Purchaser and its assignees) which would have a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loans;
(iv) No consent, approval, authorization or order of, registration or filing with, or notice on behalf of the Seller to any governmental authority or court is required, under federal laws or the laws of the State of New York, for the execution, delivery and performance by the Seller of, or compliance by the Seller with, this Agreement or the consummation by the Seller of any other transaction contemplated hereby and by the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificates;.
(v) The Seller is not in violation of, and the its execution and delivery of this Agreement by the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect toof, any law, any order or decree of any court or arbiter, or any order order, regulation or regulation demand of any federal, state, municipal state or local governmental agency having jurisdiction over the Seller or its assetsregulatory authority, which violation might have consequences that would violation, in the Seller's good faith and reasonable judgment, is likely to affect materially and adversely affect either the condition (financial or otherwise) or the operation ability of the Seller or its assets or might have consequences that would materially and adversely affect the performance of to perform its obligations and duties hereunder;under this Agreement or the financial condition of the Seller.
(vi) The Seller does not believe, nor does it have any reason or cause No litigation is pending with regard to believe, that it cannot perform each and every covenant contained in this Agreement;
(vii) Immediately prior to the sale of the Mortgage Loans to the Purchaser as herein contemplated, which the Seller was the owner has received service of the related Mortgage and the indebtedness evidenced by the related Mortgage Note, and, upon the payment to the Seller of the Purchase Price, in the event that the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereof;
(viii) There are no actions or proceedings against, or investigations known to it of, the Seller before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans by the Seller or the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by the Seller of its obligations under, or validity or enforceability of, this Agreement;
(ix) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;
(x) The Seller has not dealt with any broker, investment banker, agent or other person, except for the Purchaser or any of its affiliates, that may be entitled to any commission or compensation in connection with the sale of the Mortgage Loans (except that an entity that previously financed the Seller’s ownership of the Mortgage Loans may be entitled to a fee to release its security interest in the Mortgage Loans, which fee shall have been paid and which security interest shall have been released on or prior to the Closing Date);
(xi) There is no litigation currently pending process or, to the best of the Seller’s knowledge without independent investigation's knowledge, threatened against the Seller that which if determined adversely to the Seller would reasonably be expected to adversely affect prohibit the transfer of the Mortgage Loans, the issuance of the Certificates or the execution, delivery, performance or enforceability of Seller from entering into this Agreement, or that in the Seller's good faith and reasonable judgment, would result in a material adverse change in be likely to materially and adversely affect either the ability of the Seller to perform its obligations under this Agreement or the financial condition of the Seller; and.
(xiivii) No consent, approval, authorization or order of, or filing or registration with, any state or federal court or governmental agency or body is required for the consummation by the Seller of the transactions contemplated herein, except for those consents, approvals, authorizations or orders that previously have been obtained and those filings and registrations that previously have been completed, and except for those filings and recordings of Mortgage Loan documents and assignments thereof that are contemplated by the Pooling and Servicing Agreement to be completed after the Closing Date.
(b) The information Seller hereby makes the representations and warranties contained in Schedule II (subject to any exceptions thereto listed on Schedule IIA) to and for the benefit of the Purchaser as of the Closing Date (or as of such other dates specifically provided in the particular representation and warranty), with respect to (and solely with respect to) each Mortgage Loan.
(c) Upon discovery of any Material Breach or Material Document Defect, the Purchaser or its designee shall notify the Seller thereof in writing and request that the Seller correct or cure such Material Breach or Material Document Defect. Within 90 days of the earlier of discovery or receipt of written notice by the Seller that there has been a Material Breach or a Material Document Defect (such 90-day period, the "Initial Resolution Period"), the Seller shall (i) cure such Material Breach or Material Document Defect, as the case may be, in all material respects or (ii) repurchase each affected Mortgage Loan or REO Loan (each, a "Defective Mortgage Loan") at the related Purchase Price in accordance with the terms hereof and, if applicable, the terms of the Pooling and Servicing Agreement, with payment to be made in accordance with the reasonable directions of the Purchaser; provided that if the Seller certifies in writing to the Purchaser (i) that, as evidenced by an accompanying Opinion of Counsel, any such Material Breach or Material Document Defect, as the case may be, does not and will not cause the Defective Mortgage Loan, to fail to be a "qualified mortgage" within the meaning of Section 860G(a)(3) of the Code, (ii) that such Material Breach or Material Document Defect, as the case may be, is capable of being corrected or cured but not within the applicable Initial Resolution Period, (iii) that the Seller has commenced and is diligently proceeding with the cure of such Material Breach or Material Document Defect, as the case may be, within the applicable Initial Resolution Period, and (iv) that the Seller anticipates that such Material Breach or Material Document Defect, as the case may be, will be corrected or cured within an additional period not to exceed the Resolution Extension Period (as defined below), then the Seller shall have an additional period equal to the applicable Resolution Extension Period to complete such correction or cure or, failing such, to repurchase the Defective Mortgage Loan; and provided, further, if the Seller's obligation to repurchase any Defective Mortgage Loan as a result of a Material Breach or Material Document Defect arises within the three-month period commencing on the Closing Date (or within the two-year period commencing on the Closing Date if the Defective Mortgage Loan is a "defective obligation" within the meaning of Section 860G(a)(4)(B)(ii) of the Code and Treasury Regulations Section 1.860G-2(f)), and if the Defective Mortgage Loan is still subject to the Pooling and Servicing Agreement, the Seller may, at its option, in lieu of repurchasing such Defective Mortgage Loan (but, in any event, no later than such repurchase would have to have been completed), (i) replace such Defective Mortgage Loan with one or more substitute mortgage loans that individually and collectively satisfy the requirements of the definition of "Qualifying Substitute Mortgage Loan" set forth in the applicable part Pooling and Servicing Agreement, and (ii) pay any corresponding Substitution Shortfall Amount, such substitution and payment to be effected in accordance with the terms of the Closing Schedule relating Pooling and Servicing Agreement. Any such repurchase or replacement of a Defective Mortgage Loan shall be on a whole loan, servicing released basis. The Seller shall have no obligation to monitor the Mortgage Loans regarding the existence of a Prepayment Charge is completeMaterial Breach or Material Document Defect, true and correct in all material respects at but if the date Seller discovers a Material Breach or dates respecting which such information is furnished and each Prepayment Charge is permissible and enforceable in accordance Material Document Defect with its terms upon respect to a Mortgage Loan, it will notify the mortgagor’s full and voluntary principal prepayment under applicable law, 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; (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 under applicable lawPurchaser.
Appears in 2 contracts
Samples: Mortgage Loan Purchase and Sale Agreement (Banc of America Commercial Mortgage Inc., Series 2007-2), Mortgage Loan Purchase and Sale Agreement (Banc of America Commercial Mortgage Inc., Series 2007-4)
Representations, Warranties and Covenants of the Seller. The Seller hereby represents and warrants to the Purchaser, Purchaser as of the date hereof and as of the Closing Date, and covenants, covenants that:
(i1) The Seller is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware corporation with full corporate power and authority is duly authorized and qualified to conduct its transact any and all business as presently contemplated by this Agreement to be conducted by it the Seller in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent material necessary to ensure the consummation ability of the transactions contemplated herein. The Agreement has been duly authorized, executed Master Servicer to enforce each Mortgage Loan and delivered by to service the Seller. Mortgage Loans in accordance with the terms of the Pooling and Servicing Agreement;
(2) The Seller had the full corporate power and authority to own the hold and sell each Mortgage Loans and to transfer and convey the Mortgage Loans to the Purchaser Loan and has the full corporate power and authority to execute service each Mortgage Loan, and deliverto execute, engage in deliver and perform, and to enter into and consummate the transactions contemplated by, by this Agreement and perform and observe the terms and conditions of this Agreement;
(ii) The Seller has duly authorized by all necessary corporate action on the part of the Seller the execution, delivery and performance of this Agreement, ; this Agreement has been duly executed and delivered this Agreement, by the Seller; and this Agreement, assuming the due authorization, execution and delivery thereof by the Purchaser, constitutes a legal, valid and binding obligation of the Seller, enforceable against it the Seller in accordance with its terms terms, except as to the extent that (a) the enforceability thereof may be limited by bankruptcy, insolvency or reorganization or by general principles insolvency, moratorium, receivership and other similar laws relating to creditors’ rights generally and (b) the remedy of equityspecific 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;
(iii3) The execution, execution and delivery and performance of this Agreement by the Seller, the servicing of the Mortgage Loans by the Seller (x) does not conflict under the Pooling and Servicing Agreement, 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 Seller and will not conflict with, does not breach and will not (A) result in a breach of and does not constitute and will not constitute a default (or an event, which with notice or lapse of time or both, would constitute a default) under (A) any terms or provisions of the organizational documents of the Seller, (B) any term or provision of the charter or by-laws of the Seller 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, contract, agreement or instrument or indenture, to which the Seller is a party or by which the Seller or any of its property is it may be bound, or (C) any lawstatute, rule, regulation, order, judgment, writ, injunction order or decree regulation applicable to the Seller of any court court, regulatory body, administrative agency or governmental authority body having jurisdiction over the Seller; and the Seller 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 Seller’s knowledge, would in the future materially and adversely affect, (x) the ability of the Seller to perform its property and obligations under this Agreement or (y) does not create the business, operations, financial condition, properties or impose and will not result in the creation or imposition of any lien, charge or encumbrance (other than any created hereby in favor assets of the Purchaser and its assignees) which would have Seller taken as a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loanswhole;
(iv4) No consent, approval, authorization or order of, registration of any court or filing with, governmental agency or notice on behalf of the Seller to any governmental authority or court body is required, under federal laws or the laws of the State of New York, required for the execution, delivery and performance by the Seller of, or compliance by the Seller with, this Agreement or the consummation by of the transactions contemplated hereby, or if any such consent, approval, authorization or order is required, the Seller of any other transaction contemplated hereby and by has obtained the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificatessame;
(v5) The Seller is not an approved originator/servicer for Xxxxxx Xxx or Xxxxxxx Mac in violation ofgood standing and is a HUD approved mortgagee pursuant to Section 203 and Section 211 of the National Housing Act; and
(6) Except as otherwise disclosed in the Prospectus Supplement, and the execution and delivery of this Agreement by no litigation, action, suit, proceeding or investigation is pending against the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over the Seller or its assets, which violation might have consequences that would materially and adversely affect the condition (financial or otherwise) or the operation of the Seller or its assets or might have consequences that would materially and adversely affect the performance of its obligations and duties hereunder;
(vi) The Seller 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) Immediately prior to the sale of the Mortgage Loans to the Purchaser as herein contemplated, the Seller was the owner of the related Mortgage and the indebtedness evidenced by the related Mortgage Note, and, upon the payment to the Seller of the Purchase Price, in the event that the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereof;
(viii) There are no actions or proceedings against, or investigations known to it of, the Seller before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans by the Seller or the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by the Seller of its obligations under, or validity or enforceability of, this Agreement;
(ix) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;
(x) The Seller has not dealt with any broker, investment banker, agent or other person, except for the Purchaser or any of its affiliates, that may be entitled to any commission or compensation in connection with the sale of the Mortgage Loans (except that an entity that previously financed the Seller’s ownership of the Mortgage Loans may be entitled to a fee to release its security interest in the Mortgage Loans, which fee shall have been paid and which security interest shall have been released on or prior to the Closing Date);
(xi) There is no litigation currently pending or, to the best of the Seller’s knowledge without independent investigation, threatened against the Seller that would reasonably be expected to adversely affect the transfer of the Mortgage Loans, the issuance of the Certificates or the execution, delivery, performance delivery or enforceability of this Agreement, Agreement or that would result in a material adverse change in the financial condition ability of the Seller; and
(xii) The information set forth in Seller to service the applicable part Mortgage Loans or the Seller to perform any of the Closing Schedule relating to the existence of a Prepayment Charge 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 its other obligations hereunder in accordance with its the terms upon the mortgagor’s full and voluntary principal prepayment under applicable law, 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; (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 under applicable lawhereof.
Appears in 1 contract
Representations, Warranties and Covenants of the Seller. The Seller hereby represents represents, warrants and warrants to the Purchaser, as of the date hereof and as of the Closing Date, and covenants, covenants that:
(a) the Seller: (i) The Seller has been duly formed and is a Delaware corporation with full validly existing and in good standing under the federal laws of Canada; (ii) has all requisite corporate power and authority to conduct carry on its business as presently now conducted by it and to the extent material to the consummation of the transactions contemplated herein. The Agreement own, lease and operate its properties and assets; and (iii) has been duly authorized, executed and delivered by the Seller. The Seller had the full corporate all required power and authority to own the Mortgage Loans enter into this Agreement and to transfer and convey carry out the Mortgage Loans to the Purchaser and has the full corporate power and authority to execute and deliver, engage in the transactions contemplated by, and perform and observe the terms and conditions provisions of this Agreement;
(b) the Seller is not selling the Purchased Units based on information that it holds that has not otherwise been made publicly available, which, if such information was made publicly available, could reasonably have a material impact on the price or value of the Units;
(c) at the Closing Time, the Seller will be the sole beneficial owner of the Purchased Units;
(d) (i) at the Closing Time, the Seller will have, good title to the Purchased Units free and clear of any encumbrance, lien, charge, hypothec, pledge, mortgage, title retention agreement, other security interest or other restriction on transfer of any kind; (ii) The at the Closing Time, the Seller has duly authorized the executionfull right, power and authority to sell, assign and transfer the Purchased Units; and (iii) upon the delivery of the Purchased Units, the purchasers thereof will obtain good title to the Purchased Units free and performance clear of any encumbrance, lien, charge, hypothec, pledge, mortgage, title retention agreement, other security interest or other restriction on transfer of any kind;
(e) neither the Seller nor its affiliates (excluding, for greater certainty, the REIT and its subsidiaries) has taken, directly or indirectly, any action which was designed to or which has constituted or which might reasonably be expected to cause or result in stabilization or manipulation of the price of any security of the REIT or, except as permitted by this Agreement, has duly executed and delivered this Agreement, and this Agreement, assuming due authorization, facilitate the sale or resale of the Purchased Units;
(f) the execution and delivery of this Agreement and the performance of the transactions contemplated hereby have been duly authorized by the Purchaser, constitutes a legal, valid and binding obligation all necessary corporate action of the Seller, and this Agreement is a valid and binding agreement of the Seller enforceable against it the Seller in accordance with its terms except as the enforceability terms, provided that enforcement thereof may be limited by bankruptcy, insolvency or reorganization or insolvency, reorganization, moratorium and other laws affecting creditors’ rights generally and by general the application of equitable principles of equitywhen equitable remedies are sought and further provided that rights to indemnity, contribution and waiver, and the ability to sever unenforceable terms, may be limited by applicable law;
(iiig) The execution, delivery and performance of this Agreement by the Seller (x) does not conflict and will not conflict with, does not breach and will not result in a breach of and does not constitute and will not constitute a default (or an event, which with notice or lapse of time or both, would constitute a default) under (A) any terms or provisions of the organizational documents of the Seller, (B) any term or provision of any material agreement, contract, instrument or indenture, to which the Seller is a party or by which the Seller or any of its property is bound, or (C) any law, rule, regulation, order, judgment, writ, injunction or decree of any court or governmental authority having jurisdiction over the Seller or any of its property and (y) does not create or impose and will not result in the creation or imposition of any lien, charge or encumbrance (other than any created hereby in favor of the Purchaser and its assignees) which would have a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loans;
(iv) No consent, approval, authorization or order of, registration or filing with, or notice on behalf of the Seller to any governmental authority or court is required, under federal laws or the laws of the State of New York, for the execution, delivery and performance by the Seller of, or compliance by the Seller with, this Agreement or the consummation by the Seller of any other transaction contemplated hereby and by the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificates;
(v) The Seller is not in violation default or in breach of, and the execution and delivery of this Agreement by the Seller and its Seller, the performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over the Seller or its assets, which violation might have consequences that would materially and adversely affect the condition (financial or otherwise) or the operation of the Seller or its assets or might have consequences that would materially and adversely affect the performance of its obligations and duties hereunder;
(vi) The Seller 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) Immediately prior to the sale of the Mortgage Loans to the Purchaser as herein contemplated, the Seller was the owner of the related Mortgage and the indebtedness evidenced by the related Mortgage Note, and, upon the payment to the Seller of the Purchase Price, Purchased Units will not result in the event that the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereof;
(viii) There are no actions or proceedings againstany breach of, or investigations known to it of, the Seller before any court, administrative be in conflict with or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans by the Seller or the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by the Seller of its obligations constitute a default under, or validity create a state of facts which, after notice or enforceability oflapse of time, this Agreement;
(ix) The consummation or both, would constitute a default either directly or indirectly under any term or provision of the transactions contemplated by this Agreement are in the ordinary course of business constating documents, by-laws or resolutions of the Seller, and or any material mortgage, note, indenture, contract, agreement, instrument, lease or other document to which the transferSeller is a party or by which it is bound or any judgement, assignment and conveyance decree, order, statute, rule or regulation applicable to it;
(h) other than the Underwriters, there is no person acting or purporting to act at the request of the Mortgage Notes Seller, who is entitled to any brokerage or agency fee in connection with the transactions contemplated herein;
(i) all necessary documents and the Mortgages proceedings have been or will be filed and taken by the Seller pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may and all other legal requirements have been complied with;
(x) The Seller has not dealt with any brokeror will be fulfilled under the Securities Laws, investment bankerin each case which are required to be filed, agent taken or other person, except for the Purchaser or any of its affiliates, that may be entitled to any commission or compensation fulfilled by a selling shareholder in connection with the sale of the Mortgage Loans (except that an entity that previously financed the Seller’s ownership of the Mortgage Loans may be entitled to a fee to release its security interest in the Mortgage Loans, which fee shall have been paid and which security interest shall have been released on or prior to the Closing Date)Purchased Units;
(xij) There is no litigation currently pending or, to the best of the Seller’s knowledge without independent investigation, threatened against the Seller that would reasonably Brookfield Matters shall be expected to adversely affect the transfer of the Mortgage Loans, the issuance of the Certificates or the execution, delivery, performance or enforceability of this Agreement, or that would result in a material adverse change in the financial condition of the Seller; and
(xii) The information set forth in the applicable part of the Closing Schedule relating to the existence of a Prepayment Charge is complete, true and correct in all material respects at and contain no misrepresentation and constitute full, true and plain disclosure of all material facts required to be stated therein and will not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the date statements therein, in the light of the circumstances in which they were made, not misleading; and
(k) no stamp duty, registration or dates respecting which such information is furnished and each Prepayment Charge is permissible and enforceable in accordance with its terms upon documentary taxes, duties or similar charges are payable by the mortgagor’s full and voluntary principal prepayment Seller under applicable law, except to the extent that: (1) federal laws of Canada or the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ rights; (2) the collectability thereof may be limited due to acceleration of any Qualifying Jurisdiction in connection with a foreclosure or other involuntary prepayment; or (3) subsequent changes in applicable law may limit or prohibit enforceability thereof under applicable lawthe sale and delivery of the Purchased Units pursuant to this Agreement by the Seller.
Appears in 1 contract
Samples: Underwriting Agreement (Brookfield Office Properties Canada)
Representations, Warranties and Covenants of the Seller. The Upon the execution of the applicable Terms Agreement, the Seller hereby represents represents, warrants and warrants covenants to the Purchaser, each Underwriter as of the date hereof and as of the Closing Date, and covenants, thatDate (unless otherwise specified) as follows:
(ia) The Seller is a Delaware corporation with full corporate power and authority to conduct its business as presently conducted by it to the extent material to the consummation of the transactions contemplated herein. The Agreement has been duly authorizedorganized and is validly existing as a national banking association, executed and delivered by in good standing under the Sellerlaws of the United States. The Seller had the has, in all material respects, full corporate power and authority to own its properties and conduct its business as described in the Mortgage Loans Disclosure Materials, and to transfer execute, deliver and convey perform the Mortgage Loans Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement, this Agreement and the applicable Terms Agreement, and to the Purchaser and has the full corporate power and authority to execute and deliver, engage in consummate the transactions contemplated byby the Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement, this Agreement and the applicable Terms Agreement, and perform is duly qualified to do business and observe is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the terms securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and conditions of this Agreement;
approvals (i) would have a material adverse effect on the Seller and its subsidiaries, taken as a whole, or (ii) The Seller has duly authorized would have a material adverse effect on the execution, delivery and performance of this Seller’s ability to consummate the transactions contemplated by the Receivables Purchase Agreement, has duly executed the Pooling and delivered this Servicing Agreement, and this the Asset Representations Review Agreement, assuming due authorizationthe Transfer Agreement, execution this Agreement and delivery by the Purchaser, constitutes a legal, valid and binding obligation of the Seller, enforceable against it in accordance with its terms except as the enforceability thereof may be limited by bankruptcy, insolvency or reorganization or by general principles of equity;applicable Terms Agreement.
(iiib) The execution, delivery and performance of this Agreement by the Seller of this Agreement, the applicable Terms Agreement, the Asset Representations Review Agreement, the Transfer Agreement, the Receivables Purchase Agreement and the Pooling and Servicing Agreement, and the consummation of the transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action on the part of the Seller. Neither the execution and delivery by the Seller of such instruments, nor the performance by the Seller of the transactions herein or therein contemplated, nor the compliance by the Seller with the provisions hereof or thereof, will (xi) does not conflict and will not conflict with, does not breach and will not with or result in a breach of any of the material terms and does not constitute and will not provisions of, or constitute a material default (or an eventunder, which with notice or lapse any of time or both, would constitute a default) under (A) any terms or the provisions of the organizational documents Articles of Association or By-laws of the Seller, or (Bii) conflict with any term of the provisions of any law, governmental rule, regulation, judgment, decree or provision order binding on the Seller or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract, contract or other instrument or indenture, to which the Seller is a party or by which the Seller or any of its property it is bound, or (Civ) any law, rule, regulation, order, judgment, writ, injunction or decree of any court or governmental authority having jurisdiction over the Seller or any of its property and (y) does not create or impose and will not result in the creation or imposition of any lien, charge or encumbrance (other than upon any created hereby in favor of the Purchaser and its assignees) which would have a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loans;
(iv) No consent, approval, authorization or order of, registration or filing with, or notice on behalf of the Seller Seller’s property pursuant to any governmental authority or court is required, under federal laws or the laws of the State of New York, for the execution, delivery and performance by the Seller of, or compliance by the Seller with, this Agreement or the consummation by the Seller of any other transaction contemplated hereby and by the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificates;
(v) The Seller is not in violation of, and the execution and delivery of this Agreement by the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect toany such indenture, any order mortgage, contract or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over the Seller or its assets, which violation might have consequences that would materially and adversely affect the condition (financial or otherwise) or the operation of the Seller or its assets or might have consequences that would materially and adversely affect the performance of its obligations and duties hereunder;other instrument.
(vic) The Seller 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) Immediately prior to the sale of the Mortgage Loans to the Purchaser Except as herein contemplated, the Seller was the owner of the related Mortgage and the indebtedness evidenced by the related Mortgage Note, and, upon the payment to the Seller of the Purchase Price, described in the event that the Seller retains or has retained record titleDisclosure Materials, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereof;
(viii) There there are no actions actions, proceedings or proceedings againstinvestigations pending, or investigations known to it ofthreatened in writing, the Seller before any court, administrative agency or other tribunal (A) that might prohibit its entering into this Agreementasserting the invalidity of any Program Agreement to which it is a party, (B) seeking to prevent the sale issuance of the Mortgage Loans by Collateral Certificate or the Seller Notes or the consummation of any of the transactions set forth in any Program Agreement to which it is a party, which if adversely determined would materially and adversely affect the Collateral Certificate or the Notes, or the validity or enforceability of such Program Agreement, or (C) seeking adversely to affect the United States Federal income tax attributes of the Notes as described in the Preliminary Prospectus or the Prospectus under the headings “Prospectus Summary—Federal Income Tax Consequences” and “Federal Income Tax Consequences.”
(d) The Seller has duly executed and delivered this Agreement and the applicable Terms Agreement.
(e) The Seller has authorized the conveyance of the Receivables and the conveyance of an interest in the Seller’s interest in any related Funds Collateral to the Company under the Receivables Purchase Agreement.
(f) Complete and correct copies of publicly available portions of the Consolidated Reports of Condition and Income of the Bank for the year ended December 31, 2020 and the quarter ended June 30, 2021, as submitted to the Governors of the Federal Reserve System by the Bank, are publicly available through xxxxx://xxx.xxxxx.xxx/public/ManageFacsimiles.aspx. Except as set forth in or contemplated in the Preliminary Prospectus, there has been no material adverse change in the condition (financial or otherwise) of the Bank since December 31, 2020.
(g) Each of the Pooling and Servicing Agreement, the Receivables Purchase Agreement, the Transfer Agreement, and the Asset Representations Review Agreement constitutes a valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general and the rights of creditors of national banking associations, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Seller or in the event of any moratorium or similar occurrence affecting the Seller and to general principles of equity. All approvals, authorizations, consents, orders or other actions of or filings with any court, governmental agency or body or official required in connection with the consummation by the Seller of the transactions set forth in the Program Agreements to which it is a party, including the transfer of the Receivables pursuant to the Receivables Purchase Agreement, have been or will be taken or obtained on or before the Closing Date.
(i) The Master Trust is not now, and following the issuance of the Collateral Certificate, will not be, required to be registered under the Investment Company Act of 1940, as amended (the “1940 Act”).
(ii) The Master Trust is not now, and immediately following the issuance of the Notes pursuant to the Indenture will not be, a “covered fund” for purposes of regulations adopted under Section 13 of the Bank Holding Company Act of 1956 (hereinafter referred to as the “Xxxxxxx Rule”). In reaching this conclusion, although other statutory or regulatory exclusions or exemptions under the 1940 Act or the Xxxxxxx Rule may be available, the Seller has relied on the exclusion from registration set forth in Rule 3a-7 under the 1940 Act.
(i) The representations and warranties of the Seller in the Pooling and Servicing Agreement and the Receivables Purchase Agreement are true and correct in all material respects.
(j) The Seller has provided a written representation to each of the Hired NRSROs (as defined below), which satisfied the requirements of paragraph (a)(3)(iii) of Rule 17g-5 of the Exchange Act (“Rule 17g-5”), as amended (the “17g-5 Representation”). The Seller has complied, and will continue to comply, with the 17g-5 Representation, other than any breach of the 17g-5 Representation that would not have a material adverse effect on the Notes.
(k) The Seller has not engaged any third party to provide due diligence services within the meaning of Rule 17g-10(d)(1) under the Exchange Act or obtained any third-party due diligence report within the meaning of Rule 15Ga-2(d) under the Exchange Act with respect to the assets held by the Master Trust or the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by the Seller of its obligations under, or validity or enforceability of, this Agreement;other Program Agreements.
(ix) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;
(xl) The Seller has expects to comply, as of the date hereof, and does comply, as of the Closing Date, in all material respects with Regulation RR, 17 C.F.R. §246.1, et seq. (the “Credit Risk Retention Rules”), either directly or (to the extent permitted by the Credit Risk Retention Rules) through a “Wholly-Owned Affiliate” (as defined in the Credit Risk Retention Rules). The Seller, or one or more of its Wholly-Owned Affiliates, expects to satisfy, as of the date hereof, and does satisfy, on the Closing Date, the Credit Risk Retention Rules by maintaining a “seller’s interest” (as defined in the Credit Risk Retention Rules) in the Issuing Entity of not dealt less than 5% of the aggregate unpaid principal balance of all outstanding investor “ABS Interests” (as defined in the Credit Risk Retention Rules) in the Issuing Entity, determined in accordance with the Credit Risk Retention Rules, without any brokerimpermissible transfer, investment bankerhedging or financing of such retained interest.
(m) As used herein (i) “EU Securitization Regulation” refers to Regulation (EU) 2017/2402 of the European Parliament and of the Council of December 12, agent or 2017 laying down a general framework for securitization and creating a specific framework for simple, transparent and standardized securitization and amending certain other personEuropean Union directives and regulations, except as amended and (ii) “UK Securitization Regulation” means Regulation (EU) 2017/2402 as it forms part of UK domestic law under the European Union (Withdrawal) Xxx 0000, as amended by the Securitization (Amendment) (EU Exit) Regulations 2019. With reference to the EU Securitization Regulation and the UK Securitization Regulation, the Seller covenants and agrees that (i) as “originator” for the Purchaser purposes of each of the EU Securitization Regulation and the UK Securitization Regulation, it currently retains, and on an ongoing basis will retain, a material net economic interest that is not less than 5% of the nominal value of the securitized exposures (measured at origination), in a form that is intended to qualify as an originator’s interest as provided in option (b) of Article 6(3) of each of the EU Securitization Regulation and UK Securitization Regulation, by holding all the membership interest in the Company, which in turn holds all or part of the Transferor’s Interest; (ii) it will not (and will not permit the Company or any of its affiliatesother affiliates to) sell, that may be entitled to any commission transfer or compensation in connection with the sale of the Mortgage Loans (except that an entity that previously financed the Seller’s ownership of the Mortgage Loans may be entitled to a fee to release its security interest in the Mortgage Loans, which fee shall have been paid and which security interest shall have been released on otherwise surrender all or prior to the Closing Date);
(xi) There is no litigation currently pending or, to the best of the Seller’s knowledge without independent investigation, threatened against the Seller that would reasonably be expected to adversely affect the transfer of the Mortgage Loans, the issuance of the Certificates or the execution, delivery, performance or enforceability of this Agreement, or that would result in a material adverse change in the financial condition of the Seller; and
(xii) The information set forth in the applicable part of the Closing Schedule relating rights, benefits or obligations from the retained interest or subject it to the existence of a Prepayment Charge is completeany credit risk mitigation, 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 upon the mortgagor’s full and voluntary principal prepayment under applicable lawhedging, except to the extent that: permitted under each of the EU Securitization Regulation and UK Securitization Regulation (1) the enforceability thereof may be limited as supplemented by bankruptcy, insolvency, moratorium, receivership applicable delegated regulations and other similar laws relating to creditors’ rightsguidance); (2iii) it will not change the collectability thereof may be limited due retention option or the method of calculating its net economic interest in the securitized exposures while the Notes are outstanding, except under exceptional circumstances in accordance with each of the EU Securitization Regulation and UK Securitization Regulation (as supplemented by applicable delegated regulations and guidance); and (iv) it will provide ongoing confirmation of its continued compliance with its obligations in clauses (i) and (ii) in this paragraph in or concurrently with the delivery of each monthly certificateholders’ statement pursuant to acceleration in connection with a foreclosure or other involuntary prepayment; or (3) subsequent changes in applicable law may limit or prohibit enforceability thereof under applicable lawthe Series Supplement.
Appears in 1 contract
Representations, Warranties and Covenants of the Seller. (a) The Seller hereby represents and warrants to the Purchasermakes, as of the date hereof (or as of such other date specifically provided in the particular representation or warranty), to and for the benefit of the Purchaser, the Trustee on behalf of the Certificateholders and the respective successors-in-interest of the Purchaser and the Trustee (in each case, subject to the limitations on assignment described in Section 17 hereof), each of the representations and warranties set forth in Exhibit C subject to the exceptions set forth in Schedule C-1 to Exhibit C.
(b) In addition, the Seller, as of the Closing Datedate hereof, hereby represents and warrants to, and covenantscovenants with, the Purchaser that:
(i) The Seller is a Delaware corporation corporation, duly organized, validly existing and in good standing under the laws of the State of Delaware, and is in compliance with full corporate power and authority to conduct its business as presently conducted by it the laws of each State in which any Mortgaged Property is located to the extent material necessary to ensure the consummation enforceability of the transactions contemplated herein. The Agreement has been duly authorized, executed and delivered by the Seller. The Seller had the full corporate power and authority to own the each Mortgage Loans Loan and to transfer and convey the Mortgage Loans to the Purchaser and has the full corporate power and authority to execute and deliver, engage in the transactions contemplated by, and perform and observe the terms and conditions of its obligations under this Agreement;.
(ii) The execution and delivery of this Agreement by the Seller, and the performance of, and compliance with, the terms of this Agreement by the Seller, do not violate the Seller's organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets, in each case which materially and adversely affects the ability of the Seller to carry out the transactions contemplated by this Agreement.
(iii) The Seller has the full power and authority to enter into and consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement, and this .
(iv) This Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a legalvalid, valid legal and binding obligation of the Seller, enforceable against it the Seller in accordance with its the terms except as the enforceability thereof may be limited by hereof, subject to (A) applicable bankruptcy, insolvency or reorganization or by insolvency, reorganization, receivership, moratorium and other laws affecting the enforcement of creditors' rights generally, (B) general principles of equity;
, regardless of whether such enforcement is considered in a proceeding in equity or at law, and (iiiC) The executionpublic policy considerations underlying the securities laws, delivery and performance to the extent that such public policy considerations limit the enforceability of the provisions of this Agreement by the Seller (x) does not conflict and will not conflict with, does not breach and will not result in a breach of and does not constitute and will not constitute a default (that purport to provide indemnification or an event, which with notice or lapse of time or both, would constitute a default) under (A) any terms or provisions of the organizational documents of the Seller, (B) any term or provision of any material agreement, contract, instrument or indenture, to which the Seller is a party or by which the Seller or any of its property is bound, or (C) any law, rule, regulation, order, judgment, writ, injunction or decree of any court or governmental authority having jurisdiction over the Seller or any of its property and (y) does not create or impose and will not result in the creation or imposition of any lien, charge or encumbrance (other than any created hereby in favor of the Purchaser and its assignees) which would have a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loans;
(iv) No consent, approval, authorization or order of, registration or filing with, or notice on behalf of the Seller to any governmental authority or court is required, under federal laws or the laws of the State of New York, contribution for the execution, delivery and performance by the Seller of, or compliance by the Seller with, this Agreement or the consummation by the Seller of any other transaction contemplated hereby and by the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificates;liabilities.
(v) The Seller is not in violation of, and the its execution and delivery of this Agreement by the Seller and its performance of, and compliance with with, the terms of this Agreement will do not constitute a violation with respect toof, any law, any judgment, order or decree of any court or arbiter, or any order order, regulation or regulation demand of any federal, statestate or local governmental or regulatory authority, municipal or governmental agency having jurisdiction over which violation, in the Seller's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Seller to perform its obligations under this Agreement or its assetsthe financial condition of the Seller.
(vi) No litigation is pending or, which violation might have consequences that would to the best of the Seller's knowledge, threatened against the Seller the outcome of which, in the Seller's good faith and reasonable judgment, is likely to materially and adversely affect the condition (financial or otherwise) or the operation ability of the Seller or its assets or might have consequences that would materially and adversely affect the performance of to perform its obligations and duties hereunder;
(vi) The Seller does not believe, nor does it have any reason under this Agreement or cause to believe, that it cannot perform each and every covenant contained in this Agreement;the financial condition of the Seller.
(vii) Immediately prior to the sale of the Mortgage Loans to the Purchaser as herein contemplated, the Seller was the owner of the related Mortgage and the indebtedness evidenced by the related Mortgage Note, and, upon the payment to the Seller of the Purchase Price, in the event that the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereof;
(viii) There are no actions or proceedings against, or investigations known to it of, the Seller before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans by the Seller or the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by the Seller of its obligations under, or validity or enforceability of, this Agreement;
(ix) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;
(x) The Seller has not dealt with any broker, investment banker, agent or other person, except for other than the Purchaser or any of its Purchaser, the Underwriters, the Initial Purchasers, and their respective affiliates, that may be entitled to any commission or compensation in connection with the sale of the Mortgage Loans (except that an entity that previously financed or the Seller’s ownership consummation of any of the Mortgage Loans may be entitled to a fee to release its security interest in the Mortgage Loans, which fee shall have been paid and which security interest shall have been released on or prior to the Closing Date);other transactions contemplated hereby.
(xiviii) There is no litigation currently pending or, Insofar as it relates to the best of the Seller’s knowledge without independent investigation, threatened against the Seller that would reasonably be expected to adversely affect the transfer of the Mortgage Loans, the issuance of the Certificates or the execution, delivery, performance or enforceability of this Agreement, or that would result in a material adverse change in the financial condition of the Seller; and
(xii) The information set forth in the applicable part of the Closing Schedule relating Annex A-1 and Annex A-2 to the existence of a Prepayment Charge Prospectus Supplement (as defined in the GECC Indemnification Agreement) (the "Loan Detail") and, to the extent consistent therewith, the information set forth on the diskette attached to the Prospectus Supplement and the accompanying prospectus (the "Diskette"), is complete, true and correct in all material respects at respects. Insofar as it relates to the date description of the Mortgage Loans and/or the Seller and does not represent a restatement or dates respecting which such aggregation of the information on the Loan Detail, the information set forth in Time of Sale Information (as defined in the GECC Indemnification Agreement), the Memorandum (as defined in the GECC Indemnification Agreement) (insofar as the Prospectus Supplement is furnished an exhibit thereto) and each Prepayment Charge is permissible in the Prospectus Supplement under the headings "Summary of the Prospectus Supplement--Relevant Parties and enforceable in accordance with its terms upon Dates--Sponsors," "--Mortgage Loan Sellers," "--Originators," "--The Mortgage Pool," "Risk Factors--Risks Related to the mortgagor’s full Mortgage Loans," "Transaction Parties--The Sponsors" and voluntary principal prepayment under applicable law"Description of the Mortgage Pool" and the information set forth on Annex A-1 and Annex A-2 and Annex B to the Prospectus Supplement, except and to the extent that: it contains information consistent with that on such Annex A-1 and Annex A-2 set forth on the Diskette, does not (or, in the case of the Time of Sale Information, did not as of the Time of Sale (as defined in the GECC Indemnification Agreement) contain any untrue statement of a material fact or (in the case of the Memorandum, when read together with the other information specified therein as being available for review by investors) omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(ix) No consent, approval, authorization or order of, registration or filing with, or notice to, any governmental authority or court is required, under federal or state law (including, with respect to any bulk sale laws), for the execution, delivery and performance of, or compliance by, the Seller with this Agreement, or the consummation by the Seller of any transaction contemplated hereby, other than (1) the enforceability thereof may be limited by bankruptcyfiling or recording of financing statements, insolvency, moratorium, receivership instruments of assignment and other similar laws relating documents necessary in connection with the Seller's sale of the Mortgage Loans to creditors’ rights; the Purchaser, (2) the collectability thereof may be limited due to acceleration in connection with a foreclosure such consents, approvals, authorizations, qualifications, registrations, filings or other involuntary prepayment; notices as have been obtained, made or given and (3) subsequent changes where the lack of such consent, approval, authorization, qualification, registration, filing or notice would not have a material adverse effect on the performance by the Seller under this Agreement.
(c) Upon discovery by any of the Seller or the parties to the Pooling and Servicing Agreement of a breach of any of the representations and warranties made pursuant to and set forth in applicable law may limit subsection (b) above which materially and adversely affects the interests of the Purchaser or prohibit enforceability thereof under applicable lawa breach of any of the representations and warranties made pursuant to subsection (a) above and set forth in Exhibit C which materially and adversely affects the value of any Mortgage Loan, the value of the related Mortgaged Property or the interests therein of the Purchaser, the Trustee on behalf of the Certificateholders or any Certificateholder, the party discovering such breach shall give prompt written notice to the Seller and/or the other parties, as applicable.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (COMM 2006-C7 Mortgage Trust)
Representations, Warranties and Covenants of the Seller. The In order to induce the Depositor to enter into this Agreement, the Seller hereby represents represents, warrants and warrants 172 covenants to the PurchaserDepositor, and any assignee of the Depositor, that as of the date hereof and as of the Closing Date, and covenants, that:Date (or such other date specifically provided herein):
(i) The Seller is duly incorporated and validly existing as a Delaware corporation [national banking association] [federal savings bank] in good standing under the laws of the United States with full corporate power and authority to conduct carry on its business as presently conducted by it to the extent material to the consummation of the transactions contemplated herein. The Agreement has been duly authorized, executed and delivered by the Sellerit. The Seller had the full corporate power and authority and legal right to originate or acquire the Mortgage Loans. The Seller has the full power and authority and legal right to own the Mortgage Loans and to transfer and convey the Mortgage Loans to the Purchaser Depositor and has the full corporate power and authority and legal right to execute and deliver, engage in the transactions contemplated by, and perform and observe the terms and conditions of of, this Agreement;.
(ii) The Seller This Agreement has been duly authorized and validly authorized, executed and delivered by the Seller, all requisite corporate action has been or will have been taken, and (assuming the due authorization, execution and delivery hereof by the Depositor) constitutes or will constitute the valid, legal and binding agreements of the Seller, enforceable in accordance with its terms, except as such enforcement may be limited by (i) laws relating to bankruptcy, insolvency, reorganization, receivership or moratorium, (ii) other laws relating to or affecting the rights of creditors generally and by general principles of equity or the rights of creditors of banking institutions the accounts of which are insured by the Federal Deposit Insurance Corporation or any other instrumentality of the federal government (regardless of whether such enforcement is considered in a proceeding in equity or at law) or (iii) public policy considerations underlying the securities laws, to the extent that such public policy considerations limit the enforceability of the provisions of this Agreement which purport to provide indemnification from liabilities under applicable securities laws.
(iii) Either (a) no consent, approval, authorization or order of, registration or filing with, or notice to, any governmental authority or court is required, under federal or state laws, for the execution, delivery and performance of this Agreement, has duly executed and delivered this Agreement, and this Agreement, assuming due authorization, execution and delivery or compliance by the PurchaserSeller with this Agreement or the consummation by the Seller of any other transaction contemplated hereby or (b) such consent, constitutes a legalapproval, valid and binding obligation authorization or order has been obtained, or such registration, filing or notice has been made.
(iv) Neither the transfer of the SellerMortgage Loans to the Depositor, enforceable against it in accordance with its terms except as nor the enforceability thereof may be limited by bankruptcy, insolvency or reorganization or by general principles of equity;
(iii) The execution, delivery and or performance of this Agreement by the Seller (x) does not conflict and Seller, conflicts or will not conflict with, does not breach and or results or will not result in a breach of and does not constitute and of, or constitutes or will not constitute a default (or an event, which with notice or lapse of time or both, would constitute a default) under (Aa) any terms term or provisions provision of the organizational documents of governing the Seller's organization, or (Bb) any term or provision of any material agreement, contract, instrument or indenture, to which the Seller is a party or by which the Seller or any of its property is bound, or (Cc) any law, rule, regulation, order, judgment, writ, injunction or decree of any court or governmental authority having jurisdiction over the Seller Seller, or any of its property and (y) does not create results or impose and will not result in the creation or imposition of any lien, charge or encumbrance (other than which, in any created hereby in favor of the Purchaser and its assignees) which foregoing cases, would have a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loans;
(iv) No consent, approval, authorization or order of, registration or filing with, or notice on behalf of the Seller to any governmental authority or court is required, under federal laws or the laws of the State of New York, for the execution, delivery and performance by the Seller of, or compliance by the Seller with, this Agreement or the consummation by the Seller of any other transaction contemplated hereby and by the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificates;.
(v) The Seller is not in violation of, and the execution and delivery of this Agreement by the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over the Seller or its assets, which violation might have consequences that would materially and adversely affect the condition (financial or otherwise) or the operation of the Seller or its assets or might have consequences that would materially and adversely affect the performance of its obligations and duties hereunder;
(vi) The Seller 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) Immediately prior to the sale of the Mortgage Loans to the Purchaser as herein contemplated, the Seller was the owner of the related Mortgage and the indebtedness evidenced by the related Mortgage Note, and, upon the payment to the Seller of the Purchase Price, in the event that the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereof;
(viii) There are no actions or proceedings against, or investigations known to it of, the Seller pending or, to the Seller's knowledge, threatened against the Seller before any court, 173 administrative agency or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans by the Seller or the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by the Seller of its obligations under, or validity or enforceability of, this Agreement;
(ix) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;
(x) The Seller has not dealt with any broker, investment banker, agent or other person, except for the Purchaser or any of its affiliates, that may be entitled to any commission or compensation in connection with the sale of the Mortgage Loans (except that an entity that previously financed the Seller’s ownership of the Mortgage Loans may be entitled to a fee to release its security interest in the Mortgage Loanstribunal, which fee shall have been paid and which security interest shall have been released on or prior to the Closing Date);
(xi) There is no litigation currently pending or, to the best of the Seller’s knowledge without independent investigation, threatened against the Seller that would reasonably be expected to adversely affect the transfer of the Mortgage Loans, the issuance of the Certificates or Certificates, the execution, delivery, performance delivery or enforceability of this Agreement, Agreement or that would result in have a material adverse change in effect on the financial condition of the Seller; and.
(xiivi) The information set forth on the Mortgage Loan Schedule with respect to each Mortgage Loan was true and correct as of the Cut-off Date.
(vii) The Seller represents and warrants that each of the representations and warranties contained in the applicable part Exhibit 3 hereto is true and correct and will be true and correct as of the Closing Schedule relating Date.
(viii) The Seller covenants to (a) provide in a timely manner all of the existence information regarding itself and the Mortgage Loans as the Depositor may reasonably request in connection with the preparation of a Prepayment Charge is completethe Prospectus Supplement, true (b) fully cooperate with, and correct in supply all material respects at information requested by the date or dates respecting which such information is furnished and each Prepayment Charge is permissible and enforceable in accordance with its terms upon the mortgagor’s full and voluntary principal prepayment under applicable law, except Rating Agencies to the extent that: practicable, and (1c) the enforceability thereof dedicate adequate personnel and resources as may be limited required to comply with all of the terms and conditions of this Agreement.
(ix) The Seller may advertise its availability for handling refinancings of mortgage loans in its servicing portfolio, as long as it does not specifically target Mortgagors whose Mortgage Loans are owned by bankruptcythe Depositor or its assigns. The Depositor and its assigns will not object to the Seller promoting the terms they have available for refinancings by sending letters or promotional material to the mortgagors for all of the mortgage loans in its servicing portfolio (those they own as well as those serviced for others) or to all the mortgagors who have specific types of mortgage loans, insolvencysuch as adjustable-rate mortgage loans, moratoriumor to those whose mortgage loans fall within specific interest rate ranges. The Seller may not, receivership however, target the Mortgage Loans as a separate class of mortgage loans for purposes of advertising the availability of refinancing terms. The Seller may provide payoff information and other similar laws relating to creditors’ rights; (2) the collectability thereof may be limited due to acceleration in connection otherwise cooperate with a foreclosure or other involuntary prepayment; or (3) subsequent changes in applicable law may limit or prohibit enforceability thereof under applicable lawindividual Mortgagors who contact it about prepaying their Mortgage Loans by advising them of refinancing terms and streamlined origination arrangements that are available.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Ba Mortgage Securities Inc Mort Pass THR Cert Series 1998-1)
Representations, Warranties and Covenants of the Seller. (a) The Seller hereby represents makes, as of the Closing Date (or as of such other date specifically provided in the particular representation or warranty), to and warrants to for the benefit of the Purchaser, and its successors and assigns (including, without limitation, the Trustee and the holders of the Certificates), each of the representations and warranties set forth in Exhibit C, with such changes or modifications as may be permitted or required by the Rating Agencies.
(b) In addition, the Seller, as of the date hereof hereof, hereby represents and as of the Closing Datewarrants to, and covenantscovenants with, the Purchaser that:
(i) The Seller is a Delaware corporation corporation, duly organized, validly existing and in good standing under the laws of the State of California, and is in compliance with full corporate power and authority to conduct its business as presently conducted by it the laws of each State in which any Mortgaged Property is located to the extent material necessary to ensure the consummation enforceability of the transactions contemplated herein. The Agreement has been duly authorized, executed and delivered by the Seller. The Seller had the full corporate power and authority to own the each Mortgage Loans Loan and to transfer and convey the Mortgage Loans to the Purchaser and has the full corporate power and authority to execute and deliver, engage in the transactions contemplated by, and perform and observe the terms and conditions of its obligations under this Agreement;.
(ii) The execution and delivery of this Agreement by the Seller, and the performance and compliance with the terms of this Agreement by the Seller, will not violate the Seller's organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets, in each case which materially and adversely affect the ability of the Seller to carry out the transactions contemplated by this Agreement.
(iii) The Seller has the full power and authority to enter into and consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement, and this .
(iv) This Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a legalvalid, valid legal and binding obligation of the Seller, enforceable against it the Seller in accordance with its the terms except as the enforceability thereof may be limited by hereof, subject to (A) applicable bankruptcy, insolvency or reorganization or by insolvency, reorganization, moratorium and other laws affecting the enforcement of creditors' rights generally, (B) general principles of equity;
, regardless of whether such enforcement is considered in a proceeding in equity or at law, and (iiiC) The executionpublic policy considerations underlying the securities laws, delivery and performance to the extent that such public policy considerations limit the enforceability of the provisions of this Agreement by the Seller (x) does not conflict and will not conflict with, does not breach and will not result in a breach of and does not constitute and will not constitute a default (or an event, which with notice or lapse of time or both, would constitute a default) under (A) any terms or provisions of the organizational documents of the Seller, (B) any term or provision of any material agreement, contract, instrument or indenture, that purport to which the Seller is a party or by which the Seller or any of its property is bound, or (C) any law, rule, regulation, order, judgment, writ, injunction or decree of any court or governmental authority having jurisdiction over the Seller or any of its property and (y) does not create or impose and will not result in the creation or imposition of any lien, charge or encumbrance (other than any created hereby in favor of the Purchaser and its assignees) which would have a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loans;
(iv) No consent, approval, authorization or order of, registration or filing with, or notice on behalf of the Seller to any governmental authority or court is required, under federal laws or the laws of the State of New York, provide indemnification for the execution, delivery and performance by the Seller of, or compliance by the Seller with, this Agreement or the consummation by the Seller of any other transaction contemplated hereby and by the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificates;liabilities.
(v) The Seller is not in violation of, and the its execution and delivery of this Agreement by the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect toof, any law, any order or decree of any court or arbiter, or any order order, regulation or regulation demand of any federal, state, municipal state or local governmental agency having jurisdiction over the Seller or its assetsregulatory authority, which violation might have consequences that would violation, in the Seller's good faith and reasonable judgment, is likely to affect materially and adversely affect either the condition (financial or otherwise) or the operation ability of the Seller or its assets or might have consequences that would materially and adversely affect the performance of to perform its obligations and duties hereunder;under this Agreement or the financial condition of the Seller.
(vi) The No litigation is pending with regard to which Seller does not believehas received service of process or, nor does it have any reason or cause to believe, that it cannot perform each and every covenant contained in this Agreement;
(vii) Immediately prior to the sale best of the Mortgage Loans to the Purchaser as herein contemplatedSeller's knowledge, threatened against the Seller was the owner outcome of the related Mortgage and the indebtedness evidenced by the related Mortgage Note, and, upon the payment to the Seller of the Purchase Pricewhich, in the event that Seller's good faith and reasonable judgment, could reasonably be expected to prohibit the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereof;
(viii) There are no actions or proceedings against, or investigations known to it of, the Seller before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans by the Seller or the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by ability of the Seller of to perform its obligations under, or validity or enforceability of, under this Agreement;.
(ix) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;
(xvii) The Seller has not dealt with any broker, investment banker, agent or other person, except for other than the Purchaser or any of its Purchaser, the Underwriters, the Initial Purchasers and their respective affiliates, that may be entitled to any commission or compensation in connection with the sale of the Mortgage Loans (except that an entity that previously financed or the Seller’s ownership consummation of any of the Mortgage Loans may be entitled to a fee to release other transactions contemplated hereby.
(viii) Neither the Seller nor anyone acting on its security behalf has (A) offered, pledged, sold, disposed of or otherwise transferred any Certificate, any interest in any Certificate or any other similar security to any person in any manner, (B) solicited any offer to buy or to accept a pledge, disposition or other transfer of any Certificate, any interest in any Certificate or any other similar security from any person in any manner, (C) otherwise approached or negotiated with respect to any Certificate, any interest in any Certificate or any other similar security with any person in any manner, (D) made any general solicitation by means of general advertising or in any other manner with respect to any Certificate, any interest in any Certificate or any similar security, or (E) taken any other action, that (in the Mortgage Loans, which fee shall have been paid and which security interest shall have been released on or prior to the Closing Date);
(xi) There is no litigation currently pending or, to the best case of any of the Seller’s knowledge without independent investigation, threatened against the Seller that acts described in clauses (A) through (E) above) would reasonably be expected to adversely affect the transfer constitute or result in a violation of the Mortgage Loans, Securities Act or any state securities law relating to or in connection with the issuance of the Certificates or require registration or qualification pursuant to the executionSecurities Act or any state securities law of any Certificate not otherwise intended to be a Registered Certificate. In addition, deliverythe Seller will not act, performance nor has it authorized or enforceability of this Agreementwill it authorize any person to act, or that would result in a material adverse change in the financial condition of the Seller; and
(xii) The information any manner set forth in the applicable part foregoing sentence with respect to any of the Closing Schedule relating Certificates or interests therein. For purposes of this paragraph 4(b)(viii), the term "similar security" shall be deemed to include, without limitation, any security evidencing or, upon issuance, that would have evidenced an interest in the Mortgage Loans or any substantial number thereof.
(ix) Insofar as it relates to the existence Mortgage Loans, the information set forth on pages A-9 through A-13, inclusive, of a Prepayment Charge Annex A to the Prospectus Supplement (as defined in Section 9) (the "Loan Detail") and, to the extent consistent therewith, the information set forth on the diskette attached to the Prospectus Supplement and the accompanying prospectus (the "Diskette"), is complete, true and correct in all material respects at respects. Insofar as it relates to the date Mortgage Loans and/or the Seller and does not represent a restatement or dates respecting which such aggregation of the information is furnished on the Loan Detail, the information set forth in the Prospectus Supplement and each Prepayment Charge is permissible the Memorandum (also as defined in Section 9) under the headings "Summary of the Prospectus Supplement--The Mortgage Asset Pool", "Risk Factors--The Mortgage Loans" and enforceable in accordance with its terms upon "Description of the mortgagor’s full Mortgage Asset Pool", set forth on Annex A to the Prospectus Supplement and voluntary principal prepayment under applicable law, except (to the extent that: (1it contains information consistent with that on such Annex A) set forth on the enforceability thereof may be limited by bankruptcyDiskette, insolvency, moratorium, receivership and other similar laws relating to creditors’ rights; (2) the collectability thereof may be limited due to acceleration in connection with does not contain any untrue statement of a foreclosure or other involuntary prepayment; material fact or (3in the case of the Memorandum, when read together with the other information specified therein as being available for review by investors) subsequent changes omit to state any material fact necessary to make the statements therein, in applicable law may limit or prohibit enforceability thereof light of the circumstances under applicable lawwhich they were made, not misleading.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Gmac Commercial Mortgage Securities Inc)
Representations, Warranties and Covenants of the Seller. (a) The Seller hereby represents and warrants to the Purchaserwarrants, as of the date hereof and as of the Closing Date, and covenants, that:
(i) The Seller is a Delaware corporation national banking association, duly organized and validly existing and in good standing under the laws of the United States with full corporate power and authority to conduct its business as presently conducted by it to the extent material to the consummation of the transactions contemplated herein. The Agreement has been duly authorized, executed Seller had the full corporate power and delivered by authority to acquire the SellerMortgage Loans. The Seller had has the full corporate power and authority to own the Mortgage Loans and to transfer and convey the Mortgage Loans to the Purchaser and has the full corporate power and authority to execute and deliver, engage in the transactions contemplated by, and perform and observe the terms and conditions of this Agreement;
(ii) The Seller This Agreement has been duly authorized the executionand validly authorized, delivery and performance of this Agreement, has duly executed and delivered this Agreementby the Seller, all requisite corporate action having been taken, and this Agreement, (assuming the due authorization, execution and delivery hereof by the Purchaser) constitutes the valid, constitutes a legal, valid legal and binding obligation of the Seller, enforceable against it in accordance with its terms terms, except as the enforceability thereof such enforcement may be limited by (A) bankruptcy, insolvency insolvency, reorganization, receivership, moratorium or reorganization other similar laws relating to or by affecting the rights of creditors generally, (B) general equity principles (regardless of equitywhether such enforcement is considered in a proceeding in equity or at law) or (C) public policy considerations underlying the securities laws, to the extent that such public policy considerations limit the enforceability of the provisions of this Agreement which purport to provide indemnification from securities laws liabilities;
(iii) The execution, delivery and performance of this Agreement by the Seller (x) does not conflict and will not conflict with, does not breach and will not result in a breach of and does not constitute and will not constitute a default (or an event, which with notice or lapse of time or both, would constitute a default) under (A) any terms or provisions of the organizational documents of the Seller, (B) any term or provision of any material agreement, contract, instrument or indenture, to which the Seller is a party or by which the Seller or any of its property is bound, or (C) any law, rule, regulation, order, judgment, writ, injunction or decree of any court or governmental authority having jurisdiction over the Seller or any of its property and (y) does not create or impose and will not result in the creation or imposition of any lien, charge or encumbrance (other than any created hereby in favor of the Purchaser and its assignees) which would have a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loans;
(iv) No consent, approval, authorization or order of, registration or filing with, or notice on behalf of the Seller to any governmental authority or court is required, under federal laws or the laws of the State of New York, for the execution, delivery and performance by the Seller of, or compliance by the Seller with, this Agreement Agree ment or the consummation by the Seller of any other transaction contemplated hereby and by the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificates;
(viv) The Seller is not No certificate of an officer, statement or other information furnished in violation of, and the execution and delivery of this Agreement writing or report delivered by the Seller and its performance and compliance to the Purchaser, any affiliate of the Purchaser or the Trustee for use in connection with the terms purchase of this the Mortgage Loans and the transactions contemplated hereunder and under the Pooling and Servicing Agreement will contain any untrue statement of a material fact, or omit a material fact necessary to make the information, certificate, statement or report not constitute a violation with respect to, misleading in any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over the Seller or its assets, which violation might have consequences that would materially and adversely affect the condition (financial or otherwise) or the operation of the Seller or its assets or might have consequences that would materially and adversely affect the performance of its obligations and duties hereunder;material respect.
(viv) The Seller 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) Immediately prior to Neither the sale of the Mortgage Loans to the Purchaser as herein contemplatedPurchaser, nor the execution, delivery or performance of this Agreement by the Seller, conflicts or will conflict with or results or will result in a breach of or constitutes or will constitute a default (or an event, which with notice or lapse of time or both, would constitute a default) under (A) any terms or provisions of the certificate of incorporation or by-laws of the Seller, (B) any term or provision of any material agreement, contract, instrument or indenture, to which the Seller was is a party or by which the owner Seller or any of its property is bound or (C) any law, rule, regulation, order, judgment, writ, injunction or decree of any court or governmental authority having jurisdiction over the related Mortgage and Seller or any of its property, or results or will result in the indebtedness evidenced by the related Mortgage Notecreation or imposition of any lien, and, charge or encumbrance which would have a material adverse effect upon the payment to Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loans;
(vi) The Seller of the Purchase Pricehas not dealt with any broker, in the event that the Seller retains investment banker, agent or has retained record titleother person, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust except for the Purchaser as or any of its affiliates, that may be entitled to any commission or compensation in connection with the owner thereof from and after sale of the date hereofMortgage Loans;
(vii) There is no litigation currently pending or, to the best of the Seller's knowledge, threatened against the Seller that would reasonably be expected to adversely affect the transfer of the Mortgage Loans, the issuance of the Certificates, the execution, delivery, performance or enforceability of this Agreement or that would result in a material adverse change in the financial condition of the Seller;
(viii) There are no actions Each Mortgage Note, each Mortgage, each Assignment and any other document required to be delivered by or proceedings againston behalf of the Seller under this Agreement or the Pooling and Servicing Agreement to the Purchaser or any assignee, transferee or investigations known designee of the Purchaser for each Mortgage Loan has been or will be, in accordance with Section 4(b) hereof, delivered to it ofthe Purchaser or any such assignee, transferee or designee. With respect to each Mortgage Loan, the Seller before any courtis in possession of a complete Mortgage File in compliance with the Pooling and Servicing Agreement, administrative or other tribunal except for such documents that (A) that might prohibit its entering into this Agreementhave been delivered (1) to the Purchaser or any assignee, transferee or designee of the Purchaser or (2) for recording to the appropriate public recording office and have not yet been returned or (B) seeking are not required to prevent be delivered to the sale Purchaser or any assignee, transferee or designee of the Mortgage Loans by Purchaser until 90 days following the Seller Closing Date or the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by the Seller of its obligations under, or validity or enforceability of, this Agreementsuch later date as provided in Section 4;
(ix) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;
(x) The Seller has not dealt with any broker, investment banker, agent or other person, except for the Purchaser or any of (A) is a solvent entity and is paying its affiliates, that may be entitled debts as they become due and (B) after giving effect to any commission or compensation in connection with the sale of the Mortgage Loans (except that an entity that previously financed the Seller’s ownership of the Mortgage Loans may be entitled to a fee to release its security interest in the Mortgage Loans, which fee shall have been paid and which security interest shall have been released on or prior to the Closing Date);
(xi) There is no litigation currently pending or, to the best of the Seller’s knowledge without independent investigation, threatened against the Seller that would reasonably be expected to adversely affect the transfer of the Mortgage Loans, will be a solvent entity and will have sufficient resources to pay its debts as they become due;
(xi) The form of endorsement of each Mortgage Note satisfied the issuance requirement, if any, of endorsement in order to transfer all right, title and interest of the Certificates party so endorsing, as noteholder or assignee thereof, in and to that Mortgage Note; and each Assignment to be delivered hereunder is in recordable form and is sufficient to effect the execution, delivery, performance or enforceability assignment of this Agreement, or that would result in a material adverse change in and to transfer to the financial condition assignee thereunder the benefits of the Seller; andassignor, as mortgagee or assignee thereof, under each Mortgage to which that Assignment relates;
(xii) The information set forth in transfer of the applicable part Mortgage Loans to the Purchaser at the Closing Date will be treated by the Seller for financial accounting and reporting purposes as a sale of assets;
(xiii) Immediately prior to the sale of the Mortgage Loans to the Purchaser as herein contemplated, the Seller had good title to, and was the sole owner of, the Mortgage Loans, and such sale validly transfers the Mortgage Loans to the Purchaser free and clear of any pledge, lien, encumbrance or security interest; and
(xiv) With respect to the Mortgage Loans, the Seller hereby represents and warrants, as of the date hereof and as of the Closing Schedule relating to Date, that each Mortgage Loan constitutes a "qualified mortgage" within the existence meaning of a Prepayment Charge is complete, true and correct in all material respects at Section 860(G)(a)(3) of the date or dates respecting which such information is furnished and each Prepayment Charge is permissible and enforceable in accordance with its terms upon the mortgagor’s full and voluntary principal prepayment under applicable law, 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; (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 under applicable lawCode.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Union Planters Mort Pass THR Cert Ser 2000-Up1)
Representations, Warranties and Covenants of the Seller. (a) The Seller hereby represents makes, as of the Closing Date (or as of such other date specifically provided in the particular representation or warranty), to and warrants to for the benefit of the Purchaser, and its successors and assigns (including, without limitation, the Trustee and the holders of the Certificates), each of the representations and warranties set forth in Exhibit C, with such changes or modifications as may be permitted or required by the Rating Agencies.
(b) In addition, the Seller, as of the date hereof hereof, hereby represents and as of the Closing Datewarrants to, and covenantscovenants with, the Purchaser that:
(i) The Seller is a Delaware corporation limited partnership, duly organized, validly existing and in good standing under the laws of the State of New York, and is in compliance with full corporate power and authority to conduct its business as presently conducted by it the laws of each State in which any Mortgaged Property is located to the extent material necessary to ensure the consummation enforceability of the transactions contemplated herein. The Agreement has been duly authorized, executed and delivered by the Seller. The Seller had the full corporate power and authority to own the each Mortgage Loans Loan and to transfer and convey the Mortgage Loans to the Purchaser and has the full corporate power and authority to execute and deliver, engage in the transactions contemplated by, and perform and observe the terms and conditions of its obligations under this Agreement;.
(ii) The execution and delivery of this Agreement by the Seller, and the performance and compliance with the terms of this Agreement by the Seller, will not violate the Seller's organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets, in each case which materially and adversely affect the ability of the Seller to carry out the transactions contemplated by this Agreement.
(iii) The Seller has the full power and authority to enter into and consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement, and this .
(iv) This Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a legalvalid, valid legal and binding obligation of the Seller, enforceable against it the Seller in accordance with its the terms except as the enforceability thereof may be limited by hereof, subject to (A) applicable bankruptcy, insolvency or reorganization or by insolvency, reorganization, moratorium and other laws affecting the enforcement of creditors' rights generally, (B) general principles of equity;
, regardless of whether such enforcement is considered in a proceeding in equity or at law, and (iiiC) The executionpublic policy considerations underlying the securities laws, delivery and performance to the extent that such public policy considerations limit the enforceability of the provisions of this Agreement by the Seller (x) does not conflict and will not conflict with, does not breach and will not result in a breach of and does not constitute and will not constitute a default (or an event, which with notice or lapse of time or both, would constitute a default) under (A) any terms or provisions of the organizational documents of the Seller, (B) any term or provision of any material agreement, contract, instrument or indenture, that purport to which the Seller is a party or by which the Seller or any of its property is bound, or (C) any law, rule, regulation, order, judgment, writ, injunction or decree of any court or governmental authority having jurisdiction over the Seller or any of its property and (y) does not create or impose and will not result in the creation or imposition of any lien, charge or encumbrance (other than any created hereby in favor of the Purchaser and its assignees) which would have a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loans;
(iv) No consent, approval, authorization or order of, registration or filing with, or notice on behalf of the Seller to any governmental authority or court is required, under federal laws or the laws of the State of New York, provide indemnification for the execution, delivery and performance by the Seller of, or compliance by the Seller with, this Agreement or the consummation by the Seller of any other transaction contemplated hereby and by the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificates;liabilities.
(v) The Seller is not in violation of, and the its execution and delivery of this Agreement by the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect toof, any law, any order or decree of any court or arbiter, or any order order, regulation or regulation demand of any federal, state, municipal state or local governmental agency having jurisdiction over the Seller or its assetsregulatory authority, which violation might have consequences that would violation, in the Seller's good faith and reasonable judgment, is likely to affect materially and adversely affect either the condition (financial or otherwise) or the operation ability of the Seller or its assets or might have consequences that would materially and adversely affect the performance of to perform its obligations and duties hereunder;under this Agreement or the financial condition of the Seller.
(vi) The No litigation is pending with regard to which Seller does not believehas received service of process or, nor does it have any reason or cause to believe, that it cannot perform each and every covenant contained in this Agreement;
(vii) Immediately prior to the sale best of the Mortgage Loans to the Purchaser as herein contemplatedSeller's knowledge, threatened against the Seller was the owner outcome of the related Mortgage and the indebtedness evidenced by the related Mortgage Note, and, upon the payment to the Seller of the Purchase Pricewhich, in the event that Seller's good faith and reasonable judgment, could reasonably be expected to prohibit the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereof;
(viii) There are no actions or proceedings against, or investigations known to it of, the Seller before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans by the Seller or the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by ability of the Seller of to perform its obligations under, or validity or enforceability of, under this Agreement;.
(ix) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;
(xvii) The Seller has not dealt with any broker, investment banker, agent or other person, except for other than the Purchaser or any of its Purchaser, the Underwriters, the Initial Purchasers, Central Park Capital, L.P., and their respective affiliates, that may be entitled to any commission or E-441 compensation in connection with the sale of the Mortgage Loans (except that an entity that previously financed or the Seller’s ownership consummation of any of the Mortgage Loans may be entitled to a fee to release other transactions contemplated hereby.
(viii) Neither the Seller nor anyone acting on its security behalf has (A) offered, pledged, sold, disposed of or otherwise transferred any Certificate, any interest in any Certificate or any other similar security to any person in any manner, (B) solicited any offer to buy or to accept a pledge, disposition or other transfer of any Certificate, any interest in any Certificate or any other similar security from any person in any manner, (C) otherwise approached or negotiated with respect to any Certificate, any interest in any Certificate or any other similar security with any person in any manner, (D) made any general solicitation by means of general advertising or in any other manner with respect to any Certificate, any interest in any Certificate or any similar security, or (E) taken any other action, that (in the Mortgage Loans, which fee shall have been paid and which security interest shall have been released on or prior to the Closing Date);
(xi) There is no litigation currently pending or, to the best case of any of the Seller’s knowledge without independent investigation, threatened against the Seller that acts described in clauses (A) through (E) above) would reasonably be expected to adversely affect the transfer constitute or result in a violation of the Mortgage Loans, Securities Act or any state securities law relating to or in connection with the issuance of the Certificates or require registration or qualification pursuant to the executionSecurities Act or any state securities law of any Certificate not otherwise intended to be a Registered Certificate. In addition, deliverythe Seller will not act, performance nor has it authorized or enforceability of this Agreementwill it authorize any person to act, or that would result in a material adverse change in the financial condition of the Seller; and
(xii) The information any manner set forth in the applicable part foregoing sentence with respect to any of the Closing Schedule relating Certificates or interests therein. For purposes of this paragraph 4(b)(viii), the term "similar security" shall be deemed to include, without limitation, any security evidencing or, upon issuance, that would have evidenced an interest in the Mortgage Loans or any substantial number thereof.
(ix) Insofar as it relates to the existence Mortgage Loans, the information set forth on pages A-6 through A-8, inclusive, of a Prepayment Charge Annex A to the Prospectus Supplement (as defined in Section 9) (the "Loan Detail") and, to the extent consistent therewith, the information set forth on the diskette attached to the Prospectus Supplement and the accompanying prospectus (the "Diskette"), is complete, true and correct in all material respects at respects. Insofar as it relates to the date Mortgage Loans and/or the Seller and does not represent a restatement or dates respecting which such aggregation of the information is furnished on the Loan Detail, the information set forth in the Prospectus Supplement and each Prepayment Charge is permissible the Memorandum (as defined in Section 9) under the headings "Summary of the Prospectus Supplement--The Mortgage Asset Pool", "Risk Factors--The Mortgage Loans" and enforceable in accordance with its terms upon "Description of the mortgagor’s full Mortgage Asset Pool", set forth on Annex A to the Prospectus Supplement and voluntary principal prepayment under applicable law, except (to the extent that: (1it contains information consistent with that on such Annex A) set forth on the enforceability thereof may be limited by bankruptcyDiskette, insolvency, moratorium, receivership and other similar laws relating to creditors’ rights; (2) the collectability thereof may be limited due to acceleration in connection with does not contain any untrue statement of a foreclosure or other involuntary prepayment; material fact or (3in the case of the Memorandum, when read together with the other information specified therein as being available for review by investors) subsequent changes omit to state any material fact necessary to make the statements therein, in applicable law may limit or prohibit enforceability thereof light of the circumstances under applicable lawwhich they were made, not misleading.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Gmac Commercial Mortgage Securities Inc)
Representations, Warranties and Covenants of the Seller. (a) The Seller hereby represents and warrants to the Purchaserwarrants, as of the date hereof and as of the Closing Date, and covenants, that:
(i) The Seller is duly organized, validly existing and in good standing as a Delaware corporation under the laws of the State of California with full corporate power and authority to conduct its business as presently conducted by it to the extent material to the consummation of the transactions contemplated herein. The Agreement has been duly authorized, executed and delivered by the Seller. The Seller had the full corporate power and authority to own the Subsequent Mortgage Loans and to transfer and convey the Subsequent Mortgage Loans to the Purchaser and has the full corporate power and authority to execute and deliver, engage in the transactions contemplated by, and perform and observe the terms and conditions of this Agreement;.
(ii) The Seller has duly authorized the execution, delivery and performance of this Agreement, has duly executed and delivered this Agreement, and this Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a legal, valid and binding obligation of the Seller, enforceable against it in accordance with its terms except as the enforceability thereof may be limited by bankruptcy, insolvency or reorganization or by general principles of equity;or
(iii) The execution, delivery and performance of this Agreement by the Seller (x) does not conflict and will not conflict with, does not breach and with or result or will not result in a breach of and does not or constitute and or will not constitute a default (or an event, which with notice or lapse of time or both, would constitute a default) under (A) any terms or provisions of the organizational documents articles of incorporation or by-laws of the Seller, (B) any term or provision of any material agreement, contract, instrument or indenture, to which the Seller is a party or by which the Seller or any of its property is bound, or (C) any law, rule, regulation, order, judgment, writ, injunction or decree of any court or governmental authority having jurisdiction over the Seller or any of its property and (y) does not create property, or impose and results or will not result in the creation or imposition of any lien, charge or encumbrance, in each case, which conflict, breach, default, lien, charge or encumbrance (other than any created hereby in favor of the Purchaser and its assignees) which would have a material adverse effect upon the Subsequent Mortgage Loans or any documents or instruments evidencing or securing the Subsequent Mortgage Loans;.
(iv) No consent, approval, authorization or order of, registration or filing with, or notice on behalf of the Seller to any governmental authority or court is required, under federal laws or the laws of the State of New YorkCalifornia, for the execution, delivery and performance by the Seller of, or compliance by the Seller with, this Agreement or the consummation by the Seller of any other transaction contemplated hereby and by the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificates;.
(v) With respect to any statement regarding the intentions of the Seller, this Agreement does not contain any untrue statement of material fact or omit to state a material fact necessary to make the statements contained herein not misleading. The written statements, reports and other documents prepared and furnished or to be prepared and furnished by the Seller pursuant to this Agreement or in connection with the transactions contemplated hereby taken in the aggregate do not contain any untrue statement of material fact or omit to state a material fact necessary to make the statements contained therein not misleading.
(vi) The Seller is not in violation of, and the execution and delivery of this Agreement by the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over the Seller or its assets, which violation might have consequences that would materially and adversely affect the condition (financial or otherwise) or the operation of the Seller or its assets or might have consequences that would materially and adversely affect the performance of its obligations and duties hereunder;.
(vivii) The Seller 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 Seller unable to comply with HUD eligibility requirements or that would require notification to HUD.
(viii) The Seller does not believe, nor does it have any reason or cause to believe, that it cannot perform each and every covenant contained that it is responsible for in this Agreement;.
(viiix) Immediately prior to the sale of the Subsequent Mortgage Loans to the Purchaser as herein contemplated, the Seller was the owner of the related Mortgage and the indebtedness evidenced by the related Mortgage Note, and, upon the payment of the purchase price and the delivery of the Residual Certificates to the Seller of the Purchase PriceSeller, in the event that the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereof;.
(viiix) There are no actions or proceedings against, or investigations known to it of, the Seller before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Subsequent Mortgage Loans by the Seller or the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by the Seller of its obligations under, or validity or enforceability of, this Agreement;.
(ixxi) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;provisions.
(xxii) The information delivered by the Seller to the Purchaser with respect to the Seller's loan loss, foreclosure and delinquency experience on mortgage loans underwritten to the same standards as the Subsequent Mortgage Loans and covering mortgaged properties similar to the Mortgaged Properties, is true and correct in all material respects and includes adjustments for payments which are timely received but which are not honored, due to insufficient funds or for any other reason.
(xiii) The Seller has not dealt with any broker, investment banker, agent or other person, except for the Purchaser or any of its affiliates, that may be entitled to any commission or compensation in connection with the sale of the Mortgage Loans (except that an entity that previously financed the Seller’s ownership of the Mortgage Loans may be entitled to a fee to release its security interest in the Subsequent Mortgage Loans, which fee shall have been paid and which security interest shall have been released on or prior to the Closing Date);.
(xixiv) There is no litigation currently pending or, to the best of the Seller’s 's knowledge without independent investigation, threatened against the Seller that would reasonably be expected to adversely affect the transfer of the Subsequent Mortgage Loans, the issuance of the Certificates or the execution, delivery, performance or enforceability of this Agreement, or that would result in a material adverse change in the financial condition of the Seller; and.
(xiixv) The information set forth in the applicable part of From and after the Closing Schedule relating Date, the Seller agrees that it will not take any action or permit or cause any action to be taken by any of its agents and Affiliates, or by any independent contractors or independent mortgage brokerage companies on the Seller's behalf, to personally, by telephone or mail, solicit the Mortgagor under any Subsequent Mortgage Loan for the purpose of refinancing such Subsequent Mortgage Loan, nor will the Seller purchase any loan to a Mortgagor secured by a Mortgaged Property, in whole or in part; provided, that the Seller may solicit any Mortgagor for whom the Seller has received a request for verification of mortgage from an originator of mortgage loan products similar to the existence Subsequent Mortgage Loans that indicates that such Mortgagor intends to refinance his or her Subsequent Mortgage Loan; provided further, that the foregoing shall not preclude solicitations to the general public by newspaper, radio, television or other media that are not directed toward the Mortgagor, or from refinancing the Subsequent Mortgage Loan of a Prepayment Charge is completeMortgagor who, true and correct in all material respects at without solicitation, contacts the date or dates respecting which such information is furnished and each Prepayment Charge is permissible and enforceable in accordance with its terms upon the mortgagor’s full and voluntary principal prepayment under applicable law, 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; (2) the collectability thereof may be limited due to acceleration Seller in connection with a foreclosure or other involuntary prepayment; or (3) subsequent changes in applicable law may limit or prohibit enforceability thereof under applicable lawthe refinance of such Subsequent Mortgage Loan.
Appears in 1 contract
Samples: Subsequent Transfer Instrument (Salomon Bro Mort Sec Vii Inc as Bk Fix & Fl Rte Ce Se 1996-8)
Representations, Warranties and Covenants of the Seller. The Seller hereby represents and warrants makes the following representations on which the Buyer is deemed to have relied in acquiring the Purchaser, Receivables. The representations speak as of the date hereof execution and delivery of this Agreement and as of Closing Date with respect to the Receivables sold on such date, and shall survive the sale of the Receivables to the Buyer and the Closing Date, and covenants, that:.
(ia) The Seller is a Delaware corporation with full corporate power and authority to conduct its business as presently conducted by it to the extent material to the consummation of the transactions contemplated herein. The Agreement has been duly authorized, executed and delivered by the Seller. The Seller had the full corporate power and authority to own the Mortgage Loans and to transfer and convey the Mortgage Loans to the Purchaser and has the full corporate power and authority to execute and deliver, engage in deliver this Agreement and the transactions contemplated by, other Transaction Documents to which it is a party and perform and observe the to carry out its terms and conditions of this Agreement;their terms, respectively; the Seller has full power and authority to sell and assign the Receivables and the Conveyed Property to be sold and assigned to and deposited with the Buyer by it.
(iib) The This Agreement effects a valid sale, transfer and assignment of the Receivables and the Conveyed Property, enforceable against the Seller has duly authorized and creditors of and purchasers from the executionSeller; and this Agreement and the other Transaction Documents to which the Seller is a party, delivery and performance of this Agreement, has when duly executed and delivered this Agreementdelivered, and this Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a shall constitute legal, valid and binding obligation obligations of the Seller, Seller enforceable against it in accordance with its terms except as the enforceability thereof may be limited by bankruptcy, insolvency or reorganization or by general principles of equity;their respective terms.
(iiic) The execution, delivery Seller is in compliance in all material respects with ERISA and performance there is no lien of the Pension Benefit Guaranty Corporation on any of the Receivables or Conveyed Property.
(d) The consummation of the transactions contemplated by this Agreement and the other Transaction Documents to which the Seller is a party and the fulfillment of the terms of this Agreement by and the other Transaction Documents to which the Seller (x) does not conflict and will is a party shall not conflict with, does not breach and will not result in a any breach of any of the terms and does not provisions of or constitute and will not constitute a default (with or an eventwithout notice, which with notice or lapse of time or both, would constitute ) a default) under (A) any terms or provisions of the organizational documents default of the Seller, (B) or any term or provision of any material indenture, agreement, contractmortgage, deed of trust or other instrument or indenture, to which the Seller is a party or by which the Seller or any of its property it is bound, or (C) result in the creation or imposition of any Lien upon any of its properties pursuant to the terms of any such indenture, agreement, mortgage, deed of trust or other instrument, other than this Agreement, or violate any law, rule, regulation, order, judgment, writ, injunction rule or decree regulation applicable to the Seller of any court or of any federal or state regulatory body, administrative agency or other governmental authority instrumentality having jurisdiction over the Seller or any of its property and (y) does not create or impose and will not result in the creation or imposition of any lien, charge or encumbrance (other than any created hereby in favor of the Purchaser and its assignees) which would have a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loans;properties.
(ive) No consentThere are no proceedings or investigations pending or, approvalto the Seller’s knowledge, authorization threatened, against the Seller, before any court, regulatory body, administrative agency or order of, registration or filing with, or notice on behalf of the Seller to any governmental authority or court is required, under federal laws or the laws of the State of New York, for the execution, delivery and performance by the Seller of, or compliance by the Seller with, this Agreement or the consummation by the Seller of any other transaction contemplated hereby and by the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificates;
(v) The Seller is not in violation of, and the execution and delivery of this Agreement by the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal tribunal or governmental agency instrumentality having jurisdiction over the Seller or its assets, which violation might have consequences that would materially and adversely affect properties (i) asserting the condition (financial invalidity of this Agreement or otherwise) or the operation any of the Seller or its assets or might have consequences that would materially and adversely affect the performance of its obligations and duties hereunder;
(vi) The Seller 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) Immediately prior to the sale of the Mortgage Loans to the Purchaser as herein contemplated, the Seller was the owner of the related Mortgage and the indebtedness evidenced by the related Mortgage Note, and, upon the payment to the Seller of the Purchase Price, in the event that the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereof;
(viii) There are no actions or proceedings against, or investigations known to it of, the Seller before any court, administrative or other tribunal (A) that might prohibit its entering into this AgreementTransaction Documents, (Bii) seeking to prevent the sale consummation of the Mortgage Loans by the Seller or the consummation any of the transactions contemplated by this Agreement or any of the other Transaction Documents, (Ciii) seeking any determination or ruling that might prohibit or materially and adversely affect the Receivables or the performance by the Seller of its obligations under, or the validity or enforceability of, this Agreement;Agreement or any of the other Transaction Documents, (iv) seeking to adversely affect the federal income tax or other federal, state or local tax attributes of the transactions contemplated by the Transaction Documents, or (v) involving any Receivable.
(ixi) The Seller is not required to obtain the consent of any other party or any consent, license, approval or authorization, or registration or declaration with, any Governmental Authority, bureau or agency in connection with the execution, delivery, performance, validity or enforceability of this Agreement or any other Transaction Document which has not already been obtained, and (ii) the Seller has obtained or made all necessary consents, approvals, waivers and notifications of creditors, lessors, and other non-governmental Persons, in each case, in connection with the execution and delivery of this Agreement and the other Transaction Documents and the consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Sellerherein and therein.
(g) No statement, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller report or other document furnished or to be furnished pursuant to this Agreement are or in connection with the transaction contemplated hereby contains or will, when furnished, contain any untrue statement of a material fact or omits or will, when furnished, omit to state a material fact necessary to make the statements contained therein not subject to misleading, in light of the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;circumstances under which they were made.
(xh) The Seller has filed all federal, state, county, local and foreign income, franchise and other tax returns required to be filed by it through the date hereof, and has paid all taxes reflected as due thereon.
(i) Seller is solvent and will not dealt with become insolvent after giving effect to the transactions contemplated hereunder; Seller is paying its debts as they become due; Seller, after giving effect to the contemplated transactions, will have adequate capital to conduct its business. The Seller shall indemnify the Buyer and any brokerServicer, investment bankertheir respective officers, agent or other persondirectors, except for the Purchaser or agents and employees, and hold each of them harmless against any of its affiliates, that may be entitled to any commission or compensation in connection with the sale and all damages (including all expenses and legal fees) resulting from a breach of the Mortgage Loans (except that an entity that previously financed the Seller’s ownership of the Mortgage Loans may be entitled to a fee to release its security interest in the Mortgage Loans, which fee shall have been paid representations and which security interest shall have been released on or prior to the Closing Date);
(xi) There is no litigation currently pending or, to the best of the Seller’s knowledge without independent investigation, threatened against the Seller that would reasonably be expected to adversely affect the transfer of the Mortgage Loans, the issuance of the Certificates or the execution, delivery, performance or enforceability of this Agreement, or that would result in a material adverse change in the financial condition of the Seller; and
(xii) The information warranties set forth in this Section 5.1.
(j) Seller has sold the applicable part of vehicles collateralizing the Closing Schedule relating Receivables to the existence of a Prepayment Charge is complete, true borrowers on an “As Is” basis and correct the Receivables are not encumbered 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 upon the mortgagor’s full and voluntary principal prepayment under applicable law, except any way by any warranties made by Seller to the extent that: (1) borrowers related to the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ rights; (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 under applicable lawvehicle sales.
Appears in 1 contract
Samples: Asset Purchase Agreement (Firstplus Financial Group Inc)
Representations, Warranties and Covenants of the Seller. (a) The Seller hereby represents makes, as of the Closing Date (or as of such other date specifically provided in the particular representation or warranty), to and warrants to for the benefit of the Purchaser, and its successors and assigns (including, without limitation, the Trustee and the holders of the Certificates), each of the representations and warranties set forth in Exhibit C, with such changes or modifications as may be permitted or required by the Rating Agencies.
(b) In addition, the Seller, as of the date hereof hereof, hereby represents and as of the Closing Datewarrants to, and covenantscovenants with, the Purchaser that:
(i) The Seller is a Delaware corporation corporation, duly organized, validly existing and in good standing under the laws of the State of Maryland, and is in compliance with full corporate power and authority to conduct its business as presently conducted by it the laws of each State in which any Mortgaged Property is located to the extent material necessary to ensure the consummation enforceability of the transactions contemplated herein. The Agreement has been duly authorized, executed and delivered by the Seller. The Seller had the full corporate power and authority to own the each Mortgage Loans Loan and to transfer and convey the Mortgage Loans to the Purchaser and has the full corporate power and authority to execute and deliver, engage in the transactions contemplated by, and perform and observe the terms and conditions of its obligations under this Agreement;.
(ii) The execution and delivery of this Agreement by the Seller, and the performance and compliance with the terms of this Agreement by the Seller, will not violate the Seller's organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets, in each case which materially and adversely affect the ability of the Seller to carry out the transactions contemplated by this Agreement.
(iii) The Seller has the full power and authority to enter into and consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement, and this .
(iv) This Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a legalvalid, valid legal and binding obligation of the Seller, enforceable against it the Seller in accordance with its the terms except as the enforceability thereof may be limited by hereof, subject to (A) applicable bankruptcy, insolvency or reorganization or by insolvency, reorganization, moratorium and other laws affecting the enforcement of creditors' rights generally, (B) general principles of equity;
, regardless of whether such enforcement is considered in a proceeding in equity or at law, and (iiiC) The executionpublic policy considerations underlying the securities laws, delivery and performance to the extent that such public policy considerations limit the enforceability of the provisions of this Agreement by the Seller (x) does not conflict and will not conflict with, does not breach and will not result in a breach of and does not constitute and will not constitute a default (or an event, which with notice or lapse of time or both, would constitute a default) under (A) any terms or provisions of the organizational documents of the Seller, (B) any term or provision of any material agreement, contract, instrument or indenture, that purport to which the Seller is a party or by which the Seller or any of its property is bound, or (C) any law, rule, regulation, order, judgment, writ, injunction or decree of any court or governmental authority having jurisdiction over the Seller or any of its property and (y) does not create or impose and will not result in the creation or imposition of any lien, charge or encumbrance (other than any created hereby in favor of the Purchaser and its assignees) which would have a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loans;
(iv) No consent, approval, authorization or order of, registration or filing with, or notice on behalf of the Seller to any governmental authority or court is required, under federal laws or the laws of the State of New York, provide indemnification for the execution, delivery and performance by the Seller of, or compliance by the Seller with, this Agreement or the consummation by the Seller of any other transaction contemplated hereby and by the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificates;liabilities.
(v) The Seller is not in violation of, and the its execution and delivery of this Agreement by the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect toof, any law, any order or decree of any court or arbiter, or any order order, regulation or regulation demand of any federal, state, municipal state or local governmental agency having jurisdiction over the Seller or its assetsregulatory authority, which violation might have consequences that would violation, in the Seller's good faith and reasonable judgment, is likely to affect materially and adversely affect either the condition (financial or otherwise) or the operation ability of the Seller or its assets or might have consequences that would materially and adversely affect the performance of to perform its obligations and duties hereunder;under this Agreement or the financial condition of the Seller.
(vi) The No litigation is pending with regard to which Seller does not believehas received service of process or, nor does it have any reason or cause to believe, that it cannot perform each and every covenant contained in this Agreement;
(vii) Immediately prior to the sale best of the Mortgage Loans to the Purchaser as herein contemplatedSeller's knowledge, threatened against the Seller was the owner outcome of the related Mortgage and the indebtedness evidenced by the related Mortgage Note, and, upon the payment to the Seller of the Purchase Pricewhich, in the event that Seller's good faith and reasonable judgment, could reasonably be expected to prohibit the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereof;
(viii) There are no actions or proceedings against, or investigations known to it of, the Seller before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans by the Seller or the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by ability of the Seller of to perform its obligations under, or validity or enforceability of, under this Agreement;.
(ix) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;
(xvii) The Seller has not dealt with any broker, investment banker, agent or other person, except for other than the Purchaser or any of its Purchaser, the Underwriters, the Initial Purchasers and their respective affiliates, that may be entitled to any commission or compensation in connection with the sale of the Mortgage Loans (except that an entity that previously financed or the Seller’s ownership consummation of any of the Mortgage Loans may be entitled to a fee to release other transactions contemplated hereby.
(viii) Neither the Seller nor anyone acting on its security behalf has (A) offered, pledged, sold, disposed of or otherwise transferred any Certificate, any interest in any Certificate or any other similar security to any person in any manner, (B) solicited any offer to buy or to accept a pledge, disposition or other transfer of any Certificate, any interest in any Certificate or any other similar security from any person in any manner, (C) otherwise approached or negotiated with respect to any Certificate, any interest in any Certificate or any other similar security with any person in any manner, (D) made any general solicitation by means of general advertising or in any other manner with respect to any Certificate, any interest in any Certificate or any similar security, or (E) taken any other action, that (in the Mortgage Loans, which fee shall have been paid and which security interest shall have been released on or prior to the Closing Date);
(xi) There is no litigation currently pending or, to the best case of any of the Seller’s knowledge without independent investigation, threatened against the Seller that acts described in clauses (A) through (E) above) would reasonably be expected to adversely affect the transfer constitute or result in a violation of the Mortgage Loans, Securities Act or any state securities law relating to or in connection with the issuance of the Certificates or require registration or qualification pursuant to the executionSecurities Act or any state securities law of any Certificate not otherwise intended to be a Registered Certificate. In addition, deliverythe Seller will not act, performance nor has it authorized or enforceability of this Agreementwill it authorize any person to act, or that would result in a material adverse change in the financial condition of the Seller; and
(xii) The information any manner set forth in the applicable part foregoing sentence with respect to any of the Closing Schedule relating Certificates or interests therein. For purposes of this paragraph 4(b)(viii), the term "similar security" shall be deemed to include, without limitation, any security evidencing or, upon issuance, that would have evidenced an interest in the Mortgage Loans or the Other Mortgage Loans or any substantial number thereof.
(ix) Insofar as it relates to the existence Mortgage Loans, the information set forth on pages A-8 through A-11, inclusive, of a Prepayment Charge Annex A to the Prospectus Supplement (as defined in Section 9) (the "Loan Detail") and, to the extent consistent therewith, the information set forth on the diskette attached to the Prospectus Supplement and the accompanying prospectus (the "Diskette"), is complete, true and correct in all material respects at respects. Insofar as it relates to the date Mortgage Loans and/or the Seller and does not represent a restatement or dates respecting which such aggregation of the information is furnished on the Loan Detail, the information set forth in the Prospectus Supplement and each Prepayment Charge is permissible the Memorandum (as defined in Section 9) under the headings "Summary of Series 2000-C3 Transaction--The Mortgage Pool," "--Geographic Concentrations of the Mortgaged Properties," "--Property Types," "--Prepayment or Call Protection Provided by the Mortgage Loans," "--Payment Terms of the Mortgage Loans," "Risk Factors" and enforceable in accordance with its terms upon "Description of the mortgagor’s full Mortgage Pool", set forth on Annex A to the Prospectus Supplement and voluntary principal prepayment under applicable law, except (to the extent that: (1it contains information consistent with that on such Annex A) set forth on the enforceability thereof may be limited by bankruptcyDiskette, insolvency, moratorium, receivership and other similar laws relating to creditors’ rights; (2) the collectability thereof may be limited due to acceleration in connection with does not contain any untrue statement of a foreclosure or other involuntary prepayment; material fact or (3in the case of the Memorandum, when read together with the other information specified therein as being available for review by investors) subsequent changes omit to state any material fact necessary to make the statements therein, in applicable law may limit or prohibit enforceability thereof light of the circumstances under applicable lawwhich they were made, not misleading.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Gmac Commercial Mortgage Securities Inc)
Representations, Warranties and Covenants of the Seller. The Upon the execution of the applicable Terms Agreement, the Seller hereby represents represents, warrants and warrants covenants to the Purchaser, each Underwriter as of the date hereof and as of the Closing Date, and covenants, thatDate (unless otherwise specified) as follows:
(ia) The Seller has been duly organized and is validly existing as a Delaware corporation with national banking association, in good standing under the laws of the United States. The Seller has, in all material respects, full corporate power and authority to own its properties and conduct its business as presently conducted described in the Disclosure Materials, and to execute, deliver and perform the Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement, this Agreement and the applicable Terms Agreement, and to consummate the transactions contemplated by it the Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement, this Agreement and the applicable Terms Agreement, and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the extent securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on the Seller and its subsidiaries, taken as a whole, or (ii) would have a material adverse effect on the Seller’s ability to consummate the transactions contemplated by the Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement, this Agreement and the applicable Terms Agreement.
(b) The execution, delivery and performance by the Seller of this Agreement, the applicable Terms Agreement, the Asset Representations Review Agreement, the Transfer Agreement, the Receivables Purchase Agreement and the Pooling and Servicing Agreement, and the consummation of the transactions contemplated herein. The Agreement has hereby and thereby have been duly authorized, executed and delivered authorized by all necessary corporate action on the part of the Seller. The Neither the execution and delivery by the Seller had of such instruments, nor the full corporate power and authority to own performance by the Mortgage Loans and to transfer and convey the Mortgage Loans to the Purchaser and has the full corporate power and authority to execute and deliver, engage in Seller of the transactions contemplated byherein or therein contemplated, and perform and observe nor the compliance by the Seller with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and conditions provisions of, or constitute a material default under, any of this Agreement;
the provisions of the Articles of Association or By-laws of the Seller, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Seller is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Seller’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument.
(c) The Seller has duly authorized the execution, delivery and performance of this Agreement, has duly executed and delivered this Agreement and the applicable Terms Agreement.
(d) The Seller has authorized the conveyance of the Receivables and the conveyance of an interest in the Seller’s interest in any related Funds Collateral to the Company under the Receivables Purchase Agreement.
(e) Complete and correct copies of publicly available portions of the Consolidated Reports of Condition and Income of the Bank for the year ended December 31, 2018, as submitted to the Governors of the Federal Reserve System by the Bank, are publicly available through xxxxx://xxx.xxxxx.xxx/public/ManageFacsimiles.aspx. Except as set forth in or contemplated in the Preliminary Prospectus, there has been no material adverse change in the condition (financial or otherwise) of the Bank since December 31, 2018.
(f) Each of the Pooling and Servicing Agreement, the Receivables Purchase Agreement, the Transfer Agreement, and this Agreement, assuming due authorization, execution and delivery by the Purchaser, Asset Representations Review Agreement constitutes a legal, valid and binding obligation of the Seller, enforceable against it the Seller in accordance with its terms terms, except as to the extent that the enforceability thereof may be limited by subject to bankruptcy, insolvency insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general and the rights of creditors of national banking associations, as such laws would apply in the event of the insolvency, liquidation or reorganization or by other similar occurrence with respect to the Seller or in the event of any moratorium or similar occurrence affecting the Seller and to general principles of equity;. All approvals, authorizations, consents, orders or other actions of any court, governmental agency or body or official required in connection with the transfer of the Receivables pursuant to the Receivables Purchase Agreement, have been or will be taken or obtained on or before the Closing Date.
(iiig) (i) The executionMaster Trust is not now, delivery and performance following the issuance of the Collateral Certificate, will not be, required to be registered under the Investment Company Act of 1940, as amended (the “1940 Act”).
(ii) The Master Trust is not now, and immediately following the issuance of the Notes pursuant to the Indenture will not be, a “covered fund” for purposes of regulations adopted under Section 13 of the Bank Holding Company Act of 1956 (hereinafter referred to as the “Xxxxxxx Rule”). In reaching this Agreement by conclusion, although other statutory or regulatory exclusions or exemptions under the 1940 Act or the Xxxxxxx Rule may be available, the Seller has relied on the exclusion from registration set forth in Rule 3a-7 under the 1940 Act.
(xh) does not conflict The representations and warranties of the Seller in the Pooling and Servicing Agreement and the Receivables Purchase Agreement are true and correct in all material respects.
(i) The Seller has provided a written representation to each of the Hired NRSROs (as defined below), which satisfied the requirements of paragraph (a)(3)(iii) of Rule 17g-5 of the Exchange Act (“Rule 17g-5”), as amended (the “17g-5 Representation”). The Seller has complied, and will not conflict withcontinue to comply, does not breach and will not result in a breach of and does not constitute and will not constitute a default (or an eventwith the 17g-5 Representation, which with notice or lapse of time or both, would constitute a default) under (A) any terms or provisions of the organizational documents of the Seller, (B) any term or provision of any material agreement, contract, instrument or indenture, to which the Seller is a party or by which the Seller or any of its property is bound, or (C) any law, rule, regulation, order, judgment, writ, injunction or decree of any court or governmental authority having jurisdiction over the Seller or any of its property and (y) does not create or impose and will not result in the creation or imposition of any lien, charge or encumbrance (other than any created hereby in favor breach of the Purchaser and its assignees) which 17g-5 Representation that would not have a material adverse effect upon on the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loans;Notes.
(iv) No consent, approval, authorization or order of, registration or filing with, or notice on behalf of the Seller to any governmental authority or court is required, under federal laws or the laws of the State of New York, for the execution, delivery and performance by the Seller of, or compliance by the Seller with, this Agreement or the consummation by the Seller of any other transaction contemplated hereby and by the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificates;
(vj) The Seller is has not in violation of, and engaged any third party to provide due diligence services within the execution and delivery meaning of this Agreement Rule 17g-10(d)(1) under the Exchange Act or obtained any third-party due diligence report within the meaning of Rule 15Ga-2(d) under the Exchange Act with respect to the assets held by the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order Master Trust or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over the Seller or its assets, which violation might have consequences that would materially and adversely affect the condition (financial or otherwise) or the operation of the Seller or its assets or might have consequences that would materially and adversely affect the performance of its obligations and duties hereunder;
(vi) The Seller 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) Immediately prior to the sale of the Mortgage Loans to the Purchaser as herein contemplated, the Seller was the owner of the related Mortgage and the indebtedness evidenced by the related Mortgage Note, and, upon the payment to the Seller of the Purchase Price, in the event that the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereof;
(viii) There are no actions or proceedings against, or investigations known to it of, the Seller before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans by the Seller or the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by the Seller of its obligations under, or validity or enforceability of, this Agreement;other Program Agreements.
(ix) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;
(xk) The Seller has expects to comply, as of the date hereof, and does comply, as of the Closing Date, in all material respects with Regulation RR, 17 C.F.R. §246.1, et seq. (the “Credit Risk Retention Rules”), either directly or (to the extent permitted by the Credit Risk Retention Rules) through a “Wholly-Owned Affiliate” (as defined in the Credit Risk Retention Rules). The Seller, or one or more of its Wholly-Owned Affiliates, expects to satisfy, as of the date hereof, and does satisfy, on the Closing Date, the Credit Risk Retention Rules by maintaining a “seller’s interest” (as defined in the Credit Risk Retention Rules) in the Issuing Entity of not dealt less than 5% of the aggregate unpaid principal balance of all outstanding investor “ABS Interests” (as defined in the Credit Risk Retention Rules) in the Issuing Entity, determined in accordance with the Credit Risk Retention Rules, without any impermissible transfer, hedging or financing of such retained interest.
(l) As used in this paragraph, “EU due diligence and risk retention rules” refers to Articles 5 and 6 of Regulation (EU) 2017/2402 of the European Parliament and of the Council of December 12, 2017 (the “EU Securitization Regulation”), together with any brokerrelevant regulatory technical standards adopted by the European Commission and any guidance published by the European Union supervisory authorities with respect thereto or to precedent legislation (together, investment banker“delegated regulations and guidance”), agent or other personeach as in effect and applicable on the date the Notes are issued. With reference to the EU due diligence and risk retention rules, except the Seller covenants and agrees that (i) as “originator” for the Purchaser purposes of the EU due diligence and risk retention rules, it currently retains, and on an ongoing basis will retain, a material net economic interest that is not less than five per cent of the nominal value of the securitized exposures (measured at origination), in a form that is intended to qualify as an originator’s interest as provided in option (b) of Article 6(3) of the EU Securitization Regulation, by holding all the membership interest in the Company, which in turn holds all or part of the Transferor’s Interest; (ii) it will not (and will not permit the Company or any of its affiliates, that may other affiliates to) allow the retained interest to be entitled subject to any commission credit risk mitigation, short position or compensation other hedge or to be sold, if as a result, the Seller would not retain a material net economic interest in connection with the sale an amount that is not less than five percent of the Mortgage Loans (except that an entity that previously financed the Seller’s ownership nominal value of the Mortgage Loans may be entitled to a fee to release its security interest in the Mortgage Loans, which fee shall have been paid and which security interest shall have been released on or prior to the Closing Date);
(xi) There is no litigation currently pending or, to the best of the Seller’s knowledge without independent investigation, threatened against the Seller that would reasonably be expected to adversely affect the transfer of the Mortgage Loans, the issuance of the Certificates or the execution, delivery, performance or enforceability of this Agreement, or that would result in a material adverse change in the financial condition of the Seller; and
(xii) The information set forth in the applicable part of the Closing Schedule relating to the existence of a Prepayment Charge 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 upon the mortgagor’s full and voluntary principal prepayment under applicable lawsecuritized exposures, except to the extent that: permitted in accordance with Article 6(1) of the EU Securitization Regulation (1) the enforceability thereof may be limited as supplemented by bankruptcy, insolvency, moratorium, receivership applicable delegated regulations and other similar laws relating to creditors’ rightsguidance); (2iii) it will not change the collectability thereof may be limited due retention option or the method of calculating its net economic interest in the securitized exposures while the Notes are outstanding, except under exceptional circumstances in accordance with the EU Securitization Regulation (as supplemented by applicable delegated regulations and guidance); and (iv) it will provide ongoing confirmation of its continued compliance with its obligations in clauses (i) and (ii) in this paragraph in or concurrently with the delivery of each monthly certificateholders’ statement pursuant to acceleration in connection with a foreclosure or other involuntary prepayment; or (3) subsequent changes in applicable law may limit or prohibit enforceability thereof under applicable lawthe Series Supplement.
Appears in 1 contract
Representations, Warranties and Covenants of the Seller. The Seller hereby represents represents, warrants and warrants covenants to and agrees with the Purchaser, as of the date hereof of this Agreement and as of the Closing Date, and covenants, Date that:
(ia) The Seller is a Delaware corporation duly organized and validly existing under the laws of the jurisdiction of the State of Delaware, with full corporate power and authority to own its properties and to conduct its business as such properties shall be currently owned and such business is presently conducted by it to the extent material to the consummation of the transactions contemplated herein. The Agreement conducted, and has been duly authorized, executed and delivered by the Seller. The Seller had the full corporate all requisite power and authority to own the Mortgage Loans execute, deliver and perform this Agreement and to transfer and convey the Mortgage Loans to the Purchaser and has the full corporate power and authority to execute and deliver, engage in consummate the transactions contemplated by, and perform and observe the terms and conditions of this Agreement;herein contemplated.
(iib) The Seller has duly authorized the execution, delivery and performance of this Agreement, has and the consummation of the transactions contemplated herein, have been duly executed and delivered this Agreementauthorized by the Seller, and this Agreement, assuming due authorization, execution and delivery by the Purchaser, Agreement constitutes a its legal, valid and binding obligation of the Seller, enforceable against it in accordance with its terms terms, except as the enforceability thereof may be limited by bankruptcy, insolvency insolvency, reorganization or reorganization other similar laws affecting creditors’ rights generally or by general principles of equity;equity principles.
(iiic) The execution, delivery and performance of this Agreement by and the consummation of the transactions hereby (i) do not conflict with the provisions of the Seller’s governing instruments, (ii) will not violate any provisions of applicable law or regulation or any applicable order of any court or regulatory body, in each case, as any such provision or order applies to the Seller and (xiii) does not conflict and will not conflict with, does not breach and will not result in a the breach of and does not constitute and will not constitute a default (of, or an event, which with notice or lapse of time or both, would constitute a default) , or require any consent, under (A) any terms or provisions of the organizational documents of the Seller, (B) any term or provision of any material agreement, contract, instrument or indenture, document to which the Seller it is a party or by which the Seller it or any of its property is boundmay be bound or affected.
(d) No actions, or (C) any lawsuits, rule, regulation, order, judgment, writ, injunction or decree of any court proceedings or governmental authority having jurisdiction over investigations at law or in equity are pending or active (or, to its knowledge, threatened in writing) against the Seller or any of its property and (y) does not create or impose and will not result in the creation or imposition of any lien, charge or encumbrance (other than any created hereby in favor of the Purchaser and its assignees) which would have a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loans;
(iv) No consent, approval, authorization or order of, registration or filing with, or notice on behalf of the Seller to before any governmental authority or court is required, under federal laws or any arbitrator (i) asserting the laws invalidity of the State of New York, for the execution, delivery and performance by the Seller of, or compliance by the Seller with, this Agreement or the consummation by the Seller of any other transaction contemplated hereby and by the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificates;
(v) The Seller is not in violation of, and the execution and delivery of this Agreement by the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over the Seller or its assets, which violation might have consequences that would materially and adversely affect the condition (financial or otherwise) or the operation of the Seller or its assets or might have consequences that would materially and adversely affect the performance of its obligations and duties hereunder;
(vi) The Seller 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) Immediately prior to the sale of the Mortgage Loans to the Purchaser as herein contemplated, the Seller was the owner of the related Mortgage and the indebtedness evidenced by the related Mortgage Note, and, upon the payment to the Seller of the Purchase Price, in the event that the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereof;
(viii) There are no actions or proceedings against, or investigations known to it of, the Seller before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (Bii) seeking to prevent the sale consummation of the Mortgage Loans by the Seller or the consummation any of the transactions contemplated by this Agreement Agreement, or (Ciii) seeking any determination or ruling that might prohibit or materially would reasonably be expected to have a material and adversely affect adverse effect on the performance by the Seller of its obligations under, or the validity or enforceability of, this Agreement;, or on the value, validity or enforceability of this Agreement, the Amended and Restated Note and/or any of the Security Documents.
(ixe) The Seller has obtained all consents and authorizations (including all required consents and authorizations of any governmental authority) that are necessary to be obtained by it in connection with the execution, delivery and performance by the Seller of this Agreement, and each such consent and authorization is in full force and effect.
(f) No filing with, or authorization, approval, consent, notice, license, order, registration, qualification, decree or other action of, any court, governmental authority or agency or any other Person is necessary to be filed, obtained, recorded, notified, or otherwise applied for by the Seller in connection with (i) the assignment, transfer and sale by the Seller of the Amended and Restated Note and the Security Documents, (ii) the authorization, execution, delivery and performance by the Seller of this Agreement or (iii) the consummation by the Seller of the transactions contemplated hereby, except such as have been, or at the Closing Date will have been, obtained and are in full force and effect as of the Closing Date.
(g) The Seller has good and marketable title to the Amended and Restated Note and the Security Documents, free and clear of any Encumbrance or restriction on transferability, and the Seller has the full right, power and lawful authority to assign, transfer and sell the Amended and Restated Note and the Security Documents to the Purchaser and (ii) the consummation of the transactions contemplated by this Agreement are in shall not cause the ordinary course of business Amended and Restated Note or any of the SellerSecurity Documents, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not be subject to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;Encumbrance.
(xh) The Seller has not dealt with pledged, assigned, sold, granted any brokerEncumbrance in or otherwise Encumbered or assigned, investment bankertransferred, agent sold or other person, except for conveyed any interest in the Purchaser Amended and Restated Note or any of the Security Documents and no effective financing statement or other instrument similar in effect naming or purportedly naming the Seller as debtor and/or covering all or any part of the Amended and Restated Note or any of the Security Documents is on file in any recording office.
(i) The Seller agrees that it will not re-sell or make the first trade in the Fee Securities in Canada or through the facilities of the Toronto Stock Exchange. For the avoidance of doubt, the parties hereto acknowledge and agree that any sales of Fee Securities in the United States or through the facilities of NASDAQ are not subject to any such restrictions.
(j) The Seller has not received written notice of, and has no knowledge of, any offsets, counterclaims, deductions, withholdings, claims or other defenses with respect to the Amended and Restated Note.
(k) With effect from the Closing Date:
(i) the Purchaser and its affiliatessolicitors are authorized to register such documents, that file such statements and give such notices as may be entitled required by the Purchaser to record the assignment, transfer and sale of the Amended and Restated Note and each of the Security Documents to the Purchaser at all appropriate registry offices in that respect; and
(ii) the Seller authorizes the Purchaser and its counsel and any commission of their respective agents, employees or compensation representatives, to file any and all security registrations, financing statements, finance change statements, charges and notices in connection with the assignment, transfer and sale of the Mortgage Loans (except that an entity that previously financed the Seller’s ownership Amended and Restated Note and each of the Mortgage Loans Security Documents to the Purchaser, as the Purchaser may be entitled require.
(l) For the period between the date of this agreement and the Closing Date, (x) the Seller will not, and will not agree to, enter into any short, hedge, forward contract, derivative or similar transaction relating to the Closing Shares (but not including any sale marked “short exempt”) and (y) the Seller will cause any of its Affiliates not to maintain a fee to release its security interest Net Short Position (as defined below). For the purposes of determining compliance with the foregoing, the following shall apply:
(i) For purposes hereof, a “Net Short Position” by a person means a position whereby such Person has executed one or more sales of Common Stock that is marked as a short sale (but not including any sale marked “short exempt”) and that is executed at a time when such Person has no equivalent offsetting “long” position in the Mortgage LoansCommon Stock (or is deemed to have a long position in accordance with Regulation SHO of the 1934 Act); provided, which fee that, for purposes of such calculations, any short sales either (x) that is a result of a bona-fide trading error on behalf of such Person (or its Affiliates) or required to be marked “short” by the broker of such Person at such time as such trade is not required to be marked “short” pursuant to Regulation SHO of the 1934 Act or (y) that would otherwise be marked as a “long” sale, but for the occurrence of a breach of any term or condition of any security or agreement, in each case, by the Purchaser or its transfer agent, as applicable, shall have been paid be excluded from such calculations.
(ii) For purposes of determining whether a Person has an equivalent offsetting “long” position in the Common Stock, (A) all Common Stock that is owned by such Person shall be deemed held “long” by such Person, (B) any shares of Common Stock issuable upon conversion and/or exercise of any convertible security, warrant and/or option of the Purchaser (without regard to any limitations on conversion or exercise thereof) shall be deemed held “long” by such Person, until such time as such Person shall no longer own such convertible security, warrant or option, and which security interest (C) any shares of Common Stock that the Purchaser has elected to issue to the Seller pursuant to the terms of this Agreement shall have been released be deemed held “long” by the Seller from and after the date that is two (2) Trading Days (or such earlier date as required pursuant to the 1934 Act or other applicable law, rule or regulation for the settlement of a trade of such Common Stock initiated on or the applicable issuance date) prior to the Closing Date);
(xi) There is no litigation currently pending or, deadline for delivery of such Common Stock to the best of the Seller’s knowledge without independent investigation, threatened against the Seller that would reasonably be expected to adversely affect the transfer of the Mortgage Loans, the issuance of the Certificates or the execution, delivery, performance or enforceability of this Agreement, or that would result in a material adverse change in the financial condition of the Seller; and
(xii) The information as set forth in the applicable part of the Closing Schedule relating to the existence of a Prepayment Charge 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 upon the mortgagor’s full and voluntary principal prepayment under applicable law, 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; (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 under applicable lawthis Agreement.
Appears in 1 contract
Representations, Warranties and Covenants of the Seller. The Seller hereby represents and warrants to the Purchaser, as of the date hereof and as of the Closing Date, and covenants, that:
(i1) The Seller is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware corporation with full corporate power and authority is duly authorized and qualified to conduct its transact any and all business as presently contemplated by this Agreement to be conducted by it the Seller in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent material necessary to ensure the consummation ability of the transactions contemplated herein. The Agreement has been duly authorized, executed Master Servicer to enforce each Mortgage Loan and delivered by to service the Seller. Mortgage Loans in accordance with the terms of the Pooling and Servicing Agreement;
(2) The Seller had the full corporate power and authority to own the hold and sell each Mortgage Loans and to transfer and convey the Mortgage Loans to the Purchaser Loan and has the full corporate power and authority to execute service each Mortgage Loan, and deliverto execute, engage in deliver and perform, and to enter into and consummate the transactions contemplated by, by this Agreement and perform and observe the terms and conditions of this Agreement;
(ii) The Seller has duly authorized by all necessary corporate action on the part of the Seller the execution, delivery and performance of this Agreement, ; this Agreement has been duly executed and delivered this Agreement, by the Seller; and this Agreement, assuming the due authorization, execution and delivery thereof by the Purchaser, constitutes a legal, valid and binding obligation of the Seller, enforceable against it the Seller in accordance with its terms terms, except as to the extent that (a) the enforceability thereof may be limited by bankruptcy, insolvency or reorganization or by general principles insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally and (b) the remedy of equityspecific 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;
(iii3) The execution, execution and delivery and performance of this Agreement by the Seller, the servicing of the Mortgage Loans by the Seller (x) does not conflict under the Pooling and Servicing Agreement, 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 Seller and will not conflict with, does not breach and will not (A) result in a breach of and does not constitute and will not constitute a default (or an event, which with notice or lapse of time or both, would constitute a default) under (A) any terms or provisions of the organizational documents of the Seller, (B) any term or provision of the charter or by-laws of the Seller 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, contract, agreement or instrument or indenture, to which the Seller is a party or by which the Seller or any of its property is it may be bound, or (C) any lawstatute, rule, regulation, order, judgment, writ, injunction order or decree regulation applicable to the Seller of any court court, regulatory body, administrative agency or governmental authority body having jurisdiction over the Seller; and the Seller 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 Seller's knowledge, would in the future materially and adversely affect, (x) the ability of the Seller to perform its property and obligations under this Agreement or (y) does not create the business, operations, financial condition, properties or impose and will not result in the creation or imposition of any lien, charge or encumbrance (other than any created hereby in favor assets of the Purchaser and its assignees) which would have Seller taken as a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loanswhole;
(iv4) No consent, approval, authorization or order of, registration of any court or filing with, governmental agency or notice on behalf of the Seller to any governmental authority or court body is required, under federal laws or the laws of the State of New York, required for the execution, delivery and performance by the Seller of, or compliance by the Seller with, this Agreement or the consummation by of the transactions contemplated hereby, or if any such consent, approval, authorization or order is required, the Seller of any other transaction contemplated hereby and by has obtained the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificatessame;
(v5) The Seller is not an approved originator/servicer for Xxxxxx Xxx or Xxxxxxx Mac in violation ofgood standing and is a HUD approved mortgagee pursuant to Section 203 and Section 211 of the National Housing Act; and
(6) Except as otherwise disclosed in the Prospectus Supplement, and dated September 2, 2004 (the execution and delivery of this Agreement by "Prospectus Supplement"), no litigation is pending against the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over the Seller or its assets, which violation might have consequences that would materially and adversely affect the condition (financial or otherwise) or the operation of the Seller or its assets or might have consequences that would materially and adversely affect the performance of its obligations and duties hereunder;
(vi) The Seller 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) Immediately prior to the sale of the Mortgage Loans to the Purchaser as herein contemplated, the Seller was the owner of the related Mortgage and the indebtedness evidenced by the related Mortgage Note, and, upon the payment to the Seller of the Purchase Price, in the event that the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereof;
(viii) There are no actions or proceedings against, or investigations known to it of, the Seller before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans by the Seller or the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by the Seller of its obligations under, or validity or enforceability of, this Agreement;
(ix) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;
(x) The Seller has not dealt with any broker, investment banker, agent or other person, except for the Purchaser or any of its affiliates, that may be entitled to any commission or compensation in connection with the sale of the Mortgage Loans (except that an entity that previously financed the Seller’s ownership of the Mortgage Loans may be entitled to a fee to release its security interest in the Mortgage Loans, which fee shall have been paid and which security interest shall have been released on or prior to the Closing Date);
(xi) There is no litigation currently pending or, to the best of the Seller’s knowledge without independent investigation, threatened against the Seller that would reasonably be expected to adversely affect the transfer of the Mortgage Loans, the issuance of the Certificates or the execution, delivery, performance delivery or enforceability of this Agreement, Agreement or that would result in a material adverse change in the financial condition ability of the Seller; and
(xii) The information set forth in Seller to service the applicable part Mortgage Loans or the Seller to perform any of the Closing Schedule relating to the existence of a Prepayment Charge 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 its other obligations hereunder in accordance with its the terms upon the mortgagor’s full and voluntary principal prepayment under applicable law, 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; (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 under applicable lawhereof.
Appears in 1 contract
Representations, Warranties and Covenants of the Seller. The Upon the execution of the applicable Terms Agreement, the Seller hereby represents represents, warrants and warrants covenants to the Purchaser, each Underwriter as of the date hereof and as of the Closing Date, and covenants, thatDate (unless otherwise specified) as follows:
(ia) The Seller has been duly organized and is validly existing as a Delaware corporation with national banking association, in good standing under the laws of the United States. The Seller has, in all material respects, full corporate power and authority to own its properties and conduct its business as presently conducted described in the Disclosure Materials, and to execute, deliver and perform the Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement, this Agreement and the applicable Terms Agreement, and to consummate the transactions contemplated by it the Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement, this Agreement and the applicable Terms Agreement, and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the extent securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on the Seller and its subsidiaries, taken as a whole, or (ii) would have a material adverse effect on the Seller’s ability to consummate the transactions contemplated by the Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement, this Agreement and the applicable Terms Agreement.
(b) The execution, delivery and performance by the Seller of this Agreement, the applicable Terms Agreement, the Asset Representations Review Agreement, the Transfer Agreement, the Receivables Purchase Agreement and the Pooling and Servicing Agreement, and the consummation of the transactions contemplated herein. The Agreement has hereby and thereby have been duly authorized, executed and delivered authorized by all necessary corporate action on the part of the Seller. The Neither the execution and delivery by the Seller had of such instruments, nor the full corporate power and authority to own performance by the Mortgage Loans and to transfer and convey the Mortgage Loans to the Purchaser and has the full corporate power and authority to execute and deliver, engage in Seller of the transactions contemplated byherein or therein contemplated, and perform and observe nor the compliance by the Seller with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and conditions provisions of, or constitute a material default under, any of this Agreement;
the provisions of the Articles of Association or By-laws of the Seller, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Seller is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Seller’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument.
(c) The Seller has duly authorized the execution, delivery and performance of this Agreement, has duly executed and delivered this Agreement and the applicable Terms Agreement.
(d) The Seller has authorized the conveyance of the Receivables and the conveyance of an interest in the Seller’s interest in any related Funds Collateral to the Company under the Receivables Purchase Agreement.
(e) Complete and correct copies of publicly available portions of the Consolidated Reports of Condition and Income of the Bank for the year ended December 31, 2016, as submitted to the Governors of the Federal Reserve System by the Bank, are publicly available through xxxxx://xxx.xxxxx.xxx/public/ManageFacsimiles.aspx. Except as set forth in or contemplated in the Preliminary Prospectus, there has been no material adverse change in the condition (financial or otherwise) of the Bank since December 31, 2016.
(f) Each of the Pooling and Servicing Agreement, and this the Receivables Purchase Agreement, assuming due authorization, execution the Transfer Agreement and delivery by the Purchaser, Asset Representations Review Agreement constitutes a legal, valid and binding obligation of the Seller, enforceable against it the Seller in accordance with its terms terms, except as to the extent that the enforceability thereof may be limited by subject to bankruptcy, insolvency insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general and the rights of creditors of national banking associations, as such laws would apply in the event of the insolvency, liquidation or reorganization or by other similar occurrence with respect to the Seller or in the event of any moratorium or similar occurrence affecting the Seller and to general principles of equity;. All approvals, authorizations, consents, orders or other actions of any court, governmental agency or body or official required in connection with the transfer of the Receivables pursuant to the Receivables Purchase Agreement, have been or will be taken or obtained on or before the Closing Date.
(iiig) (i) The executionMaster Trust is not now, delivery and performance following the issuance of the Collateral Certificate, will not be, required to be registered under the Investment Company Act of 1940, as amended (the “1940 Act”).
(ii) The Master Trust is not now, and immediately following the issuance of the Notes pursuant to the Indenture will not be, a “covered fund” for purposes of regulations adopted under Section 13 of the Bank Holding Company Act of 1956 (hereinafter referred to as the “Xxxxxxx Rule”). In reaching this Agreement by conclusion, although other statutory or regulatory exclusions or exemptions under the 1940 Act or the Xxxxxxx Rule may be available, the Seller has relied on the exclusion from registration set forth in Rule 3a-7 under the 1940 Act.
(xh) does not conflict The representations and warranties of the Seller in the Pooling and Servicing Agreement and the Receivables Purchase Agreement are true and correct in all material respects.
(i) The Seller has provided a written representation to each of the Hired NRSROs (as defined below), which satisfied the requirements of paragraph (a)(3)(iii) of Rule 17g-5 of the Exchange Act (“Rule 17g-5”), as amended (the “17g-5 Representation”). The Seller has complied, and will not conflict withcontinue to comply, does not breach and will not result in a breach of and does not constitute and will not constitute a default (or an eventwith the 17g-5 Representation, which with notice or lapse of time or both, would constitute a default) under (A) any terms or provisions of the organizational documents of the Seller, (B) any term or provision of any material agreement, contract, instrument or indenture, to which the Seller is a party or by which the Seller or any of its property is bound, or (C) any law, rule, regulation, order, judgment, writ, injunction or decree of any court or governmental authority having jurisdiction over the Seller or any of its property and (y) does not create or impose and will not result in the creation or imposition of any lien, charge or encumbrance (other than any created hereby in favor breach of the Purchaser and its assignees) which 17g-5 Representation that would not have a material adverse effect upon on the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loans;Notes.
(iv) No consent, approval, authorization or order of, registration or filing with, or notice on behalf of the Seller to any governmental authority or court is required, under federal laws or the laws of the State of New York, for the execution, delivery and performance by the Seller of, or compliance by the Seller with, this Agreement or the consummation by the Seller of any other transaction contemplated hereby and by the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificates;
(vj) The Seller is has not in violation of, and engaged any third party to provide due diligence services within the execution and delivery meaning of this Agreement Rule 17g-10(d)(1) under the Exchange Act or obtained any third-party due diligence report within the meaning of Rule 15Ga-2(d) under the Exchange Act with respect to the assets held by the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order Master Trust or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over the Seller or its assets, which violation might have consequences that would materially and adversely affect the condition (financial or otherwise) or the operation of the Seller or its assets or might have consequences that would materially and adversely affect the performance of its obligations and duties hereunder;
(vi) The Seller 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) Immediately prior to the sale of the Mortgage Loans to the Purchaser as herein contemplated, the Seller was the owner of the related Mortgage and the indebtedness evidenced by the related Mortgage Note, and, upon the payment to the Seller of the Purchase Price, in the event that the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereof;
(viii) There are no actions or proceedings against, or investigations known to it of, the Seller before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans by the Seller or the consummation of the transactions contemplated by this Agreement or the other Program Agreements.
(Ck) that might prohibit The Seller expects to comply, as of the date hereof, and does comply, as of the Closing Date, in all material respects with Regulation RR, 17 C.F.R. §246.1, et seq. (the “Credit Risk Retention Rules”), either directly or materially and adversely affect (to the performance extent permitted by the Seller Credit Risk Retention Rules) through a “Wholly-Owned Affiliate” (as defined in the Credit Risk Retention Rules). The Seller, or one or more of its obligations underWholly-Owned Affiliates, expects to satisfy, as of the date hereof, and does satisfy, on the Closing Date, the Credit Risk Retention Rules by maintaining a “seller’s interest” (as defined in the Credit Risk Retention Rules) in the Issuing Entity of not less than 5% of the aggregate unpaid principal balance of all outstanding investor “ABS Interests” (as defined in the Credit Risk Retention Rules) in the Issuing Entity, determined in accordance with the Credit Risk Retention Rules, without any impermissible transfer, hedging or validity or enforceability of, this Agreement;financing of such retained interest.
(ixl) The consummation As used in this paragraph, “EU risk retention rules” refers, collectively, to (i) Articles 404-410 of the transactions contemplated European Union’s (“EU”) Capital Requirements Regulation ((EU) No. 575/2013) (as supplemented by this Agreement EU secondary legislation, including Commission Delegated Regulation (EU) No. 625/2014 (the “CRR Delegated Regulation”)) (the “CRR”), (ii) Article 17 of the EU’s Alternative Investment Fund Managers Directive (2011/61/EU) and Articles 50-56 of the Alternative Investment Fund Managers Regulation ((EU) No. 231/2013) (the “AIFM Regulation”) and (iii) Articles 254-257 of the Commission Delegated Regulation ((EU) No. 2015/35) (the “Solvency II Regulation”), in each case as in effect on the date the Class A(2017-3) Notes are issued. With reference to Article 405(1) of the CRR, Article 51(1) of the AIFM Regulation and Article 254(2) of the Solvency II Regulation, each as in effect on the ordinary course date of business the issuance of the Notes, the Seller covenants and agrees that (i) the Seller, and as “originator” for the transfer, assignment and conveyance purposes of the Mortgage Notes EU risk retention rules, currently retains, and on an ongoing basis will retain, a material net economic interest that is not less than five percent of the Mortgages nominal value of the securitized exposures, in a form that is intended to qualify as an originator’s interest as provided in option (b) of each of Article 405(1) of the CRR, Article 51(1) of the AIFM Regulation and Article 254(2) of the Solvency II Regulation, by holding all the membership interest in the Company which in turn holds all of the Transferor’s Interest; (ii) the Seller pursuant to this Agreement are will not subject to (and will not permit the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;
(x) The Seller has not dealt with any broker, investment banker, agent or other person, except for the Purchaser Company or any of its affiliates, that may other affiliates to) allow the retained interest to be entitled subject to any commission credit risk mitigation, short position or compensation other hedge or to be sold, if as a result, the Seller would not retain a material net economic interest in connection with the sale an amount that is not less than five percent of the Mortgage Loans (except that an entity that previously financed the Seller’s ownership nominal value of the Mortgage Loans may be entitled to a fee to release its security interest in the Mortgage Loans, which fee shall have been paid and which security interest shall have been released on or prior to the Closing Date);
(xi) There is no litigation currently pending or, to the best of the Seller’s knowledge without independent investigation, threatened against the Seller that would reasonably be expected to adversely affect the transfer of the Mortgage Loans, the issuance of the Certificates or the execution, delivery, performance or enforceability of this Agreement, or that would result in a material adverse change in the financial condition of the Seller; and
(xii) The information set forth in the applicable part of the Closing Schedule relating to the existence of a Prepayment Charge 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 upon the mortgagor’s full and voluntary principal prepayment under applicable lawsecuritized exposures, except to the extent that: permitted in accordance with Article 405(1) of the CRR (1as supplemented by Article 12 of the CRR Delegated Regulation), Article 51(1) of the AIFM Regulation and Article 254 of the Solvency II Regulation; (iii) the enforceability thereof may be limited Seller will not change the manner in which it retains its net economic interest in the securitized exposures while the Notes are outstanding, except under exceptional circumstances in accordance with that Article 405(1) (as supplemented by bankruptcyArticle 10 of the CRR Delegated Regulation), insolvency, moratorium, receivership that Article 51(1) and other similar laws relating to creditors’ rightsthat Article 254; and (2iv) the collectability thereof may be limited due Seller will provide ongoing confirmation of its continued compliance with its obligations in clauses (i) and (ii) in this paragraph in or concurrently with the delivery of each monthly certificateholders’ statement pursuant to acceleration the Series Supplement while and to the extent that the EU Risk Retention Rules remain in connection with a foreclosure or other involuntary prepayment; or (the form effective on the date the Class A(2017-3) subsequent changes in applicable law may limit or prohibit enforceability thereof under applicable lawNotes are issued.
Appears in 1 contract
Samples: Underwriting Agreement (Capital One Multi Asset Execution Trust)
Representations, Warranties and Covenants of the Seller. The Upon the execution of the applicable Terms Agreement, the Seller hereby represents represents, warrants and warrants covenants to the Purchaser, each Underwriter as of the date hereof and as of the Closing Date, and covenants, thatDate (unless otherwise specified) as follows:
(ia) The Seller has been duly organized and is validly existing as a Delaware corporation with national banking association, in good standing under the laws of the United States. The Seller has, in all material respects, full corporate power and authority to own its properties and conduct its business as presently conducted described in the Disclosure Materials, and to execute, deliver and perform the Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement, this Agreement and the applicable Terms Agreement, and to consummate the transactions contemplated by it the Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement, this Agreement and the applicable Terms Agreement, and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the extent securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on the Seller and its subsidiaries, taken as a whole, or (ii) would have a material adverse effect on the Seller’s ability to consummate the transactions contemplated by the Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement, this Agreement and the applicable Terms Agreement.
(b) The execution, delivery and performance by the Seller of this Agreement, the applicable Terms Agreement, the Asset Representations Review Agreement, the Transfer Agreement, the Receivables Purchase Agreement and the Pooling and Servicing Agreement, and the consummation of the transactions contemplated herein. The Agreement has hereby and thereby have been duly authorized, executed and delivered authorized by all necessary corporate action on the part of the Seller. The Neither the execution and delivery by the Seller had of such instruments, nor the full corporate power and authority to own performance by the Mortgage Loans and to transfer and convey the Mortgage Loans to the Purchaser and has the full corporate power and authority to execute and deliver, engage in Seller of the transactions contemplated byherein or therein contemplated, and perform and observe nor the compliance by the Seller with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and conditions provisions of, or constitute a material default under, any of this Agreement;
the provisions of the Articles of Association or By-laws of the Seller, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Seller is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Seller’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument.
(c) The Seller has duly authorized the execution, delivery and performance of this Agreement, has duly executed and delivered this Agreement and the applicable Terms Agreement.
(d) The Seller has authorized the conveyance of the Receivables and the conveyance of an interest in the Seller’s interest in any related Funds Collateral to the Company under the Receivables Purchase Agreement.
(e) Complete and correct copies of publicly available portions of the Consolidated Reports of Condition and Income of the Bank for the year ended December 31, 2016, as submitted to the Governors of the Federal Reserve System by the Bank, are publicly available through xxxxx://xxx.xxxxx.xxx/public/ManageFacsimiles.aspx. Except as set forth in or contemplated in the Preliminary Prospectus, there has been no material adverse change in the condition (financial or otherwise) of the Bank since December 31, 2016.
(f) Each of the Pooling and Servicing Agreement, and this the Receivables Purchase Agreement, assuming due authorization, execution the Transfer Agreement and delivery by the Purchaser, Asset Representations Review Agreement constitutes a legal, valid and binding obligation of the Seller, enforceable against it the Seller in accordance with its terms terms, except as to the extent that the enforceability thereof may be limited by subject to bankruptcy, insolvency insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general and the rights of creditors of national banking associations, as such laws would apply in the event of the insolvency, liquidation or reorganization or by other similar occurrence with respect to the Seller or in the event of any moratorium or similar occurrence affecting the Seller and to general principles of equity;. All approvals, authorizations, consents, orders or other actions of any court, governmental agency or body or official required in connection with the transfer of the Receivables pursuant to the Receivables Purchase Agreement, have been or will be taken or obtained on or before the Closing Date.
(iiig) (i) The executionMaster Trust is not now, delivery and performance following the issuance of the Collateral Certificate, will not be, required to be registered under the Investment Company Act of 1940, as amended (the “1940 Act”).
(ii) The Master Trust is not now, and immediately following the issuance of the Notes pursuant to the Indenture will not be, a “covered fund” for purposes of regulations adopted under Section 13 of the Bank Holding Company Act of 1956 (hereinafter referred to as the “Xxxxxxx Rule”). In reaching this Agreement by conclusion, although other statutory or regulatory exclusions or exemptions under the 1940 Act or the Xxxxxxx Rule may be available, the Seller has relied on the exclusion from registration set forth in Rule 3a-7 under the 1940 Act.
(xh) does not conflict The representations and warranties of the Seller in the Pooling and Servicing Agreement and the Receivables Purchase Agreement are true and correct in all material respects.
(i) The Seller has provided a written representation to each of the Hired NRSROs (as defined below), which satisfied the requirements of paragraph (a)(3)(iii) of Rule 17g-5 of the Exchange Act (“Rule 17g-5”), as amended (the “17g-5 Representation”). The Seller has complied, and will not conflict withcontinue to comply, does not breach and will not result in a breach of and does not constitute and will not constitute a default (or an eventwith the 17g-5 Representation, which with notice or lapse of time or both, would constitute a default) under (A) any terms or provisions of the organizational documents of the Seller, (B) any term or provision of any material agreement, contract, instrument or indenture, to which the Seller is a party or by which the Seller or any of its property is bound, or (C) any law, rule, regulation, order, judgment, writ, injunction or decree of any court or governmental authority having jurisdiction over the Seller or any of its property and (y) does not create or impose and will not result in the creation or imposition of any lien, charge or encumbrance (other than any created hereby in favor breach of the Purchaser and its assignees) which 17g-5 Representation that would not have a material adverse effect upon on the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loans;Notes.
(iv) No consent, approval, authorization or order of, registration or filing with, or notice on behalf of the Seller to any governmental authority or court is required, under federal laws or the laws of the State of New York, for the execution, delivery and performance by the Seller of, or compliance by the Seller with, this Agreement or the consummation by the Seller of any other transaction contemplated hereby and by the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificates;
(vj) The Seller is has not in violation of, and engaged any third party to provide due diligence services within the execution and delivery meaning of this Agreement Rule 17g-10(d)(1) under the Exchange Act or obtained any third-party due diligence report within the meaning of Rule 15Ga-2(d) under the Exchange Act with respect to the assets held by the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order Master Trust or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over the Seller or its assets, which violation might have consequences that would materially and adversely affect the condition (financial or otherwise) or the operation of the Seller or its assets or might have consequences that would materially and adversely affect the performance of its obligations and duties hereunder;
(vi) The Seller 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) Immediately prior to the sale of the Mortgage Loans to the Purchaser as herein contemplated, the Seller was the owner of the related Mortgage and the indebtedness evidenced by the related Mortgage Note, and, upon the payment to the Seller of the Purchase Price, in the event that the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereof;
(viii) There are no actions or proceedings against, or investigations known to it of, the Seller before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans by the Seller or the consummation of the transactions contemplated by this Agreement or the other Program Agreements.
(Ck) that might prohibit The Seller expects to comply, as of the date hereof, and does comply, as of the Closing Date, in all material respects with Regulation RR, 17 C.F.R. §246.1, et seq. (the “Credit Risk Retention Rules”), either directly or materially and adversely affect (to the performance extent permitted by the Seller Credit Risk Retention Rules) through a “Wholly-Owned Affiliate” (as defined in the Credit Risk Retention Rules). The Seller, or one or more of its obligations underWholly-Owned Affiliates, expects to satisfy, as of the date hereof, and does satisfy, on the Closing Date, the Credit Risk Retention Rules by maintaining a “seller’s interest” (as defined in the Credit Risk Retention Rules) in the Issuing Entity of not less than 5% of the aggregate unpaid principal balance of all outstanding investor “ABS Interests” (as defined in the Credit Risk Retention Rules) in the Issuing Entity, determined in accordance with the Credit Risk Retention Rules, without any impermissible transfer, hedging or validity or enforceability of, this Agreement;financing of such retained interest.
(ixl) The consummation As used in this paragraph, “EU risk retention rules” refers, collectively, to (i) Articles 404-410 of the transactions contemplated European Union’s (“EU”) Capital Requirements Regulation ((EU) No. 575/2013) (as supplemented by this Agreement EU secondary legislation, including Commission Delegated Regulation (EU) No. 625/2014 (the “CRR Delegated Regulation”)) (the “CRR”), (ii) Article 17 of the EU’s Alternative Investment Fund Managers Directive (2011/61/EU) and Articles 50-56 of the Alternative Investment Fund Managers Regulation ((EU) No. 231/2013) (the “AIFM Regulation”) and (iii) Articles 254-257 of the Commission Delegated Regulation ((EU) No. 2015/35) (the “Solvency II Regulation”), in each case as in effect on the date the Class A(2017-2) Notes are issued. With reference to Article 405(1) of the CRR, Article 51(1) of the AIFM Regulation and Article 254(2) of the Solvency II Regulation, each as in effect on the ordinary course date of business the issuance of the Notes, the Seller covenants and agrees that (i) the Seller, and as “originator” for the transfer, assignment and conveyance purposes of the Mortgage Notes EU risk retention rules, currently retains, and on an ongoing basis will retain, a material net economic interest that is not less than five percent of the Mortgages nominal value of the securitized exposures, in a form that is intended to qualify as an originator’s interest as provided in option (b) of each of Article 405(1) of the CRR, Article 51(1) of the AIFM Regulation and Article 254(2) of the Solvency II Regulation, by holding all the membership interest in the Company which in turn holds all of the Transferor’s Interest; (ii) the Seller pursuant to this Agreement are will not subject to (and will not permit the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;
(x) The Seller has not dealt with any broker, investment banker, agent or other person, except for the Purchaser Company or any of its affiliates, that may other affiliates to) allow the retained interest to be entitled subject to any commission credit risk mitigation, short position or compensation other hedge or to be sold, if as a result, the Seller would not retain a material net economic interest in connection with the sale an amount that is not less than five percent of the Mortgage Loans (except that an entity that previously financed the Seller’s ownership nominal value of the Mortgage Loans may be entitled to a fee to release its security interest in the Mortgage Loans, which fee shall have been paid and which security interest shall have been released on or prior to the Closing Date);
(xi) There is no litigation currently pending or, to the best of the Seller’s knowledge without independent investigation, threatened against the Seller that would reasonably be expected to adversely affect the transfer of the Mortgage Loans, the issuance of the Certificates or the execution, delivery, performance or enforceability of this Agreement, or that would result in a material adverse change in the financial condition of the Seller; and
(xii) The information set forth in the applicable part of the Closing Schedule relating to the existence of a Prepayment Charge 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 upon the mortgagor’s full and voluntary principal prepayment under applicable lawsecuritized exposures, except to the extent that: permitted in accordance with Article 405(1) of the CRR (1as supplemented by Article 12 of the CRR Delegated Regulation), Article 51(1) of the AIFM Regulation and Article 254 of the Solvency II Regulation; (iii) the enforceability thereof may be limited Seller will not change the manner in which it retains its net economic interest in the securitized exposures while the Notes are outstanding, except under exceptional circumstances in accordance with that Article 405(1) (as supplemented by bankruptcyArticle 10 of the CRR Delegated Regulation), insolvency, moratorium, receivership that Article 51(1) and other similar laws relating that Article 254; and (iv) the Seller will provide ongoing confirmation of its continued compliance with its obligations in clauses (i) and (ii) in this paragraph in or concurrently with the delivery of each monthly certificateholders’ statement pursuant to creditors’ rights; (the Series Supplement while and to the extent that the EU Risk Retention Rules remain in the form effective on the date the Class A(2017-2) 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 under applicable lawNotes are issued.
Appears in 1 contract
Samples: Underwriting Agreement (Capital One Multi Asset Execution Trust)
Representations, Warranties and Covenants of the Seller. The Seller hereby represents represents, warrants and warrants covenants to and agrees with the Purchaser, as of the date hereof of this Agreement and as of the the Closing Date, and covenants, that:Date that:
(ia) The Seller is a Delaware corporation with full corporate power duly organized and authority to conduct its business as presently conducted by it to validly existing under the extent material to the consummation laws of the transactions contemplated herein. The Agreement has been duly authorizedjurisdiction of the State of Delaware, executed and delivered by the Seller. The Seller had the full corporate with power and authority to own the Mortgage Loans its properties and to transfer conduct its business as such properties shall be currently owned and convey the Mortgage Loans to the Purchaser and such business is presently conducted, and has the full corporate all requisite power and authority to execute execute, deliver and deliver, engage in perform this Agreement and to consummate the transactions contemplated by, and perform and observe the terms and conditions of this Agreement;herein contemplated.
(iib) The Seller has duly authorized the execution, delivery and performance of this Agreement, has and the consummation of the transactions contemplated herein, have been duly executed and delivered this Agreementauthorized by the Seller, and this Agreement, assuming due authorization, execution and delivery by the Purchaser, Agreement constitutes a its legal, valid and binding obligation of the Seller, enforceable against it in accordance accordance with its terms terms, except as the enforceability thereof may be limited by bankruptcy, insolvency insolvency, reorganization or reorganization other similar laws affecting creditors’ rights generally or by general principles of equity;equity principles.
(iiic) The execution, delivery and performance of this Agreement by and the Seller consummation of the transactions hereby (xi) does do not conflict and with the provisions of the Seller’s governing instruments, (ii) will not conflict withviolate any provisions of applicable law or regulation or any applicable order of any court or regulatory body, does not breach in each case, as any such provision or order applies to the Seller and (iii) will not result in a the breach of and does not constitute and will not constitute a default (of, or an event, which with notice or lapse of time or both, would constitute a default) , or require any consent, under (A) any terms or provisions of the organizational documents of the Seller, (B) any term or provision of any material agreement, contract, instrument or indenture, document to which the Seller it is a party or by which the Seller it or any any of its property is boundmay be bound or affected.
(d) No actions, suits, proceedings or governmental investigations at law or in equity are pending or active (or, to its knowledge, threatened in writing) against the Seller before any governmental authority or any arbitrator (i) asserting the invalidity of this Agreement, (ii) seeking to prevent the consummation of any of the transactions contemplated by this Agreement, or (Ciii) seeking any lawdetermination or ruling that would reasonably be expected to have a material and adverse effect on the performance by the Seller of its obligations under, or the validity or enforceability of, rulethis Agreement, regulationor on the value, ordervalidity or enforceability of this Agreement, judgment, writ, injunction or decree the Amended and Restated Note and/or any of the Security Documents.
(e) The Seller has obtained all consents and authorizations (including all required consents and authorizations of any court or governmental authority having jurisdiction over the Seller or any of its property and (yauthority) does not create or impose and will not result that are necessary to be obtained by it in the creation or imposition of any lien, charge or encumbrance (other than any created hereby in favor of the Purchaser and its assignees) which would have a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loans;
(iv) No consent, approval, authorization or order of, registration or filing with, or notice on behalf of the Seller to any governmental authority or court is required, under federal laws or the laws of the State of New York, for connection with the execution, delivery and performance by the Seller of this Agreement, and each such consent and authorization is in full force and effect.
(f) No filing with, or authorization, approval, consent, notice, license, order, registration, qualification, decree or other action of, any court, governmental authority or compliance agency or any other Person is necessary to be filed, obtained, recorded, notified, or otherwise applied for by the Seller within connection with (i) the assignment, transfer and sale by the Seller of the Amended and Restated Note and the Security Documents, (ii) the authorization, execution, delivery and performance by the Seller of this Agreement or (iii) the consummation by the Seller of the transactions contemplated hereby, except such as have been, or at the Closing Date will have been, obtained and are in full force and effect as of the Closing Date.
(g) The Seller has good and marketable title to the Amended and Restated Note and the Security Documents, free and clear of any Encumbrance or restriction on transferability, and the Seller has the full right, power and lawful authority to assign, transfer and sell the Amended and Restated Note and the Security Documents to the Purchaser and (ii) the consummation of the transactions contemplated by this Agreement shall not cause the Amended and Restated Note or any of the Security Documents, to be subject to any Encumbrance.
(h) The Seller has not pledged, assigned, sold, granted any Encumbrance in or otherwise Encumbered or assigned, transferred, sold or conveyed any interest in the Amended and Restated Note or any of the Security Documents and no effective financing statement or other transaction contemplated hereby instrument similar in effect naming or purportedly naming the Seller as debtor and/or covering all or any part of the Amended and Restated Note or any of the Security Documents is on file in any recording office.
(i) The Seller agrees that it will not re-sell or make the first trade in the Fee Securities in Canada or through the facilities of the Toronto Stock Exchange. For the avoidance of doubt, the parties hereto acknowledge and agree that any sales of Fee Securities in the United States or through the facilities of NASDAQ are not subject to any such restrictions.
(j) The Seller has not received written notice of, and has no knowledge of, any offsets, counterclaims, deductions, withholdings, claims or other defenses with respect to the Amended and Restated Note.
(k) With effect from the Closing Date:
(i) the Purchaser and its solicitors are authorized to register such documents, file such statements and give such notices as may be required by the Pooling Purchaser to record the assignment, transfer and Servicing Agreementsale of the Amended and Restated Note and each of the Security Documents to the Purchaser at all appropriate registry offices in that respect; and
(ii) the Seller authorizes the Purchaser and its counsel and any of their respective agents, employees or representatives, to file any and all security registrations, financing statements, finance change statements, charges and notices in connection with the assignment, transfer and sale of the Amended and Restated Note and each of the Security Documents to the Purchaser, as the Purchaser may require.
(l) For the period between the date of this agreement and the Closing Date, (x) the Seller will not, and will not agree to, enter into any short, hedge, forward contract, derivative or similar transaction relating to the Closing Shares (but not including any sale marked “short exempt”) and (y) the Seller will cause any of its Affiliates not to maintain a Net Short Position (as defined below). For the purposes of determining compliance with the foregoing, the following shall apply:
(i) For purposes hereof, a “Net Short Position” by a person means a position whereby such Person has executed one or more sales of Common Stock that is marked as a short sale (but not including any sale marked “short exempt”) and that is executed at a time when such Person has no equivalent offsetting “long” position in the Common Stock (or is deemed to have a long position in accordance with Regulation SHO of the 1934 Act); provided, howeverthat, for purposes of such calculations, any short sales either (x) that is a result of a bona-fide trading error on behalf of such Person (or its Affiliates) or required to be marked “short” by the broker of such Person at such time as such trade is not required to be marked “short” pursuant to Regulation SHO of the 1934 Act or (y) that would otherwise be marked as a “long” sale, but for the occurrence of a breach of any term or condition of any security or agreement, in each case, by the Purchaser or its transfer agent, as applicable, shall be excluded from such calculations.
(ii) For purposes of determining whether a Person has an equivalent offsetting “long” position in the Common Stock, (A) all Common Stock that is owned by such Person shall be deemed held “long” by such Person, (B) any shares of Common Stock issuable upon conversion and/or exercise of any convertible security, warrant and/or option of the Purchaser (without regard to any limitations on conversion or exercise thereof) shall be deemed held “long” by such Person, until such time as such Person shall no longer own such convertible security, warrant or option, and (C) any shares of Common Stock that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificates;
(v) The Seller is not in violation of, and the execution and delivery of this Agreement by Purchaser has elected to issue to the Seller and its performance and compliance with pursuant to the terms of this Agreement will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over shall be deemed held “long” by the Seller or its assets, which violation might have consequences that would materially and adversely affect the condition (financial or otherwise) or the operation of the Seller or its assets or might have consequences that would materially and adversely affect the performance of its obligations and duties hereunder;
(vi) The Seller 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) Immediately prior to the sale of the Mortgage Loans to the Purchaser as herein contemplated, the Seller was the owner of the related Mortgage and the indebtedness evidenced by the related Mortgage Note, and, upon the payment to the Seller of the Purchase Price, in the event that the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereof;that is two (2) Trading Days (or such earlier date as required pursuant to the 1934 Act or other applicable law, rule or regulation for the settlement of a trade of such Common Stock initiated on the applicable issuance date) prior to the deadline for delivery of such Common Stock to the Seller, as set forth in this Agreement.
(viiim) There are no actions or proceedings againstThe Seller acknowledges that the Purchaser Convertible Note is being issued without an indenture pursuant to an exemption to the Trust Indenture Act of 1939, or investigations known to it ofas amended (the “TIA”), and as a result, the Seller before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent will not be afforded the sale benefits and protections of the Mortgage Loans by TIA, including the Seller or the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by the Seller of its obligations under, or validity or enforceability of, this Agreement;
(ix) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;
(x) The Seller has not dealt with any broker, investment banker, agent or other person, except for the Purchaser or any of its affiliates, that may be entitled to any commission or compensation in connection with the sale of the Mortgage Loans (except that an entity that previously financed the Seller’s ownership of the Mortgage Loans may be entitled to a fee to release its security interest in the Mortgage Loans, which fee shall have been paid and which security interest shall have been released on or prior to the Closing Date);
(xi) There is no litigation currently pending or, to the best of the Seller’s knowledge without independent investigation, threatened against the Seller that would reasonably be expected to adversely affect the transfer of the Mortgage Loans, the issuance of the Certificates or the execution, delivery, performance or enforceability of this Agreement, or that would result in a material adverse change in the financial condition of the Seller; and
(xii) The information set forth in the applicable part of the Closing Schedule relating to the existence appointment of a Prepayment Charge is complete, true suitable independent 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 upon the mortgagor’s full and voluntary principal prepayment under applicable law, 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; (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 under applicable lawqualified trustee.
Appears in 1 contract
Samples: Assignment and Assumption Agreement (Tilray Brands, Inc.)
Representations, Warranties and Covenants of the Seller. (a) The Seller hereby represents makes, as of the Closing Date (or as of such other date specifically provided in the particular representation or warranty), to and warrants to for the benefit of the Purchaser, and its successors and assigns (including, without limitation, the Trustee and the holders of the Certificates), each of the representations and warranties set forth in Exhibit C, with such changes or modifications as may be permitted or required by the Rating Agencies.
(b) In addition, the Seller, as of the date hereof hereof, hereby represents and as of the Closing Datewarrants to, and covenantscovenants with, the Purchaser that:
(i) The Seller is a Delaware corporation corporation, duly authorized, validly existing and in good standing under the laws of the State of Delaware, and is in compliance with full corporate power and authority to conduct its business as presently conducted by it the laws of each State in which any Mortgaged Property is located to the extent material necessary to ensure the consummation enforceability of the transactions contemplated herein. The Agreement has been duly authorized, executed and delivered by the Seller. The Seller had the full corporate power and authority to own the each Mortgage Loans Loan and to transfer and convey the Mortgage Loans to the Purchaser and has the full corporate power and authority to execute and deliver, engage in the transactions contemplated by, and perform and observe the terms and conditions of its obligations under this Agreement;.
(ii) The execution and delivery of this Agreement by the Seller, and the performance and compliance with the terms of this Agreement by the Seller, will not violate the Seller's organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Seller has the full power and authority to enter into and consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement, and this .
(iv) This Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a legalvalid, valid legal and binding obligation of the Seller, enforceable against it the Seller in accordance with its the terms except as the enforceability thereof may be limited by hereof, subject to (A) applicable bankruptcy, insolvency or reorganization or by insolvency, reorganization, moratorium and other laws affecting the enforcement of creditors' rights generally, and (B) general principles of equity;
(iii) The execution, delivery and performance regardless of this Agreement by the Seller (x) does not conflict and will not conflict with, does not breach and will not result whether such enforcement is considered in a breach of and does not constitute and will not constitute a default (proceeding in equity or an event, which with notice or lapse of time or both, would constitute a default) under (A) any terms or provisions of the organizational documents of the Seller, (B) any term or provision of any material agreement, contract, instrument or indenture, to which the Seller is a party or by which the Seller or any of its property is bound, or (C) any at law, rule, regulation, order, judgment, writ, injunction or decree of any court or governmental authority having jurisdiction over the Seller or any of its property and (y) does not create or impose and will not result in the creation or imposition of any lien, charge or encumbrance (other than any created hereby in favor of the Purchaser and its assignees) which would have a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loans;
(iv) No consent, approval, authorization or order of, registration or filing with, or notice on behalf of the Seller to any governmental authority or court is required, under federal laws or the laws of the State of New York, for the execution, delivery and performance by the Seller of, or compliance by the Seller with, this Agreement or the consummation by the Seller of any other transaction contemplated hereby and by the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificates;.
(v) The Seller is not in violation of, and the its execution and delivery of this Agreement by the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect toof, any law, any order or decree of any court or arbiter, or any order order, regulation or regulation demand of any federal, statestate or local governmental or regulatory authority, municipal or governmental agency having jurisdiction over which violation, in the Seller's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Seller to perform its obligations under this Agreement or its assetsthe financial condition of the Seller.
(vi) No litigation is pending with regard to which the Seller has received service of process or, to the best of the Seller's knowledge, threatened against the Seller which violation might have consequences that would prohibit the Seller from entering into this Agreement or, in the Seller's good faith and reasonable judgment, is likely to materially and adversely affect either the condition (financial or otherwise) or the operation ability of the Seller or its assets or might have consequences that would materially and adversely affect the performance of to perform its obligations and duties hereunder;
(vi) The Seller does not believe, nor does it have any reason under this Agreement or cause to believe, that it cannot perform each and every covenant contained in this Agreement;the financial condition of the Seller.
(vii) Immediately prior to the sale of the Mortgage Loans to the Purchaser as herein contemplated, the Seller was the owner of the related Mortgage and the indebtedness evidenced by the related Mortgage Note, and, upon the payment to the Seller of the Purchase Price, in the event that the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereof;
(viii) There are no actions or proceedings against, or investigations known to it of, the Seller before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans by the Seller or the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by the Seller of its obligations under, or validity or enforceability of, this Agreement;
(ix) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;
(x) The Seller has not dealt with any broker, investment banker, agent or other person, except for other than the Purchaser or any of its Purchaser, the Underwriters, ContiFinancial Services Corporation, ING Baring (U.S.) Corporation, and their respective affiliates, that may be entitled to any commission or compensation in connection with the sale of the Mortgage Loans (except that an entity that previously financed or the Seller’s ownership consummation of any of the Mortgage Loans may be entitled to a fee to release other transactions contemplated hereby.
(viii) Neither the Seller nor anyone acting on its security behalf has (A) offered, pledged, sold, disposed of or otherwise transferred any Certificate, any interest in any Certificate or any other similar security to any person in any manner, (B) solicited any offer to buy or to accept a pledge, disposition or other transfer of any Certificate, any interest in any Certificate or any other similar security from any person in any manner, (C) otherwise approached or negotiated with respect to any Certificate, any interest in any Certificate or any other similar security with any person in any manner, (D) made any general solicitation by means of general advertising or in any other manner with respect to any Certificate, any interest in any Certificate or any similar security, or (E) taken any other action, that (in the Mortgage Loans, which fee shall have been paid and which security interest shall have been released on or prior to the Closing Date);
(xi) There is no litigation currently pending or, to the best case of any of the Seller’s knowledge without independent investigation, threatened against the Seller that acts described in clauses (A) through (E) above) would reasonably be expected to adversely affect the transfer constitute or result in a violation of the Mortgage Loans, Securities Act or any state securities law relating to or in connection with the issuance of the Certificates or require registration or qualification pursuant to the executionSecurities Act or any state securities law of any Certificate not otherwise intended to be a Registered Certificate. In addition, deliverythe Seller will not act, performance nor has it authorized or enforceability of this Agreementwill it authorize any person to act, or that would result in a material adverse change in the financial condition of the Seller; and
(xii) The information any manner set forth in the applicable part foregoing sentence with respect to any of the Closing Schedule relating Certificates or interests therein. For purposes of this paragraph 4(b)(viii), the term "similar security" shall be deemed to include, without limitation, any security evidencing or, upon issuance, that would have evidenced an interest in the Mortgage Loans or any substantial number thereof.
(ix) Insofar as it relates to the existence Mortgage Loans, the information set forth on pages A-9 through A-45, inclusive, of a Prepayment Charge Annex A to the Prospectus Supplement (as defined in Section 9) (the "Loan Detail") and, to the extent consistent therewith, the information set forth on the diskette attached to the Prospectus Supplement and the accompanying prospectus (the "Diskette"), 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 upon the mortgagor’s full and voluntary principal prepayment under applicable law, 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; (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 under applicable law.respects. Insofar as it
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Gmac Commercial Mortgage Securities Inc)
Representations, Warranties and Covenants of the Seller. The Seller hereby represents represents, warrants and warrants covenants to and agrees with the Purchaser, as of the date hereof and of this Agreement, as of the Closing Date, Settlement Date and covenants, the Consideration Shares Payment Date that:
(ia) The Seller is a Delaware corporation duly organized and validly existing under the laws of the jurisdiction of the Cayman Islands, with full corporate power and authority to own its properties and to conduct its business as such properties shall be currently owned and such business is presently conducted by it to the extent material to the consummation of the transactions contemplated herein. The Agreement conducted, and has been duly authorized, executed and delivered by the Seller. The Seller had the full corporate all requisite power and authority to own the Mortgage Loans execute, deliver and perform this Agreement and to transfer and convey the Mortgage Loans to the Purchaser and has the full corporate power and authority to execute and deliver, engage in consummate the transactions contemplated by, and perform and observe the terms and conditions of this Agreement;herein contemplated.
(iib) The Seller has duly authorized the execution, delivery and performance of this Agreement, has and the consummation of the transactions contemplated herein, have been duly executed and delivered this Agreementauthorized by the Seller, and this Agreement, assuming due authorization, execution and delivery by the Purchaser, Agreement constitutes a its legal, valid and binding obligation of the Seller, enforceable against it in accordance with its terms terms, except as the enforceability thereof may be limited by bankruptcy, insolvency insolvency, reorganization or reorganization other similar laws affecting creditors’ rights generally or by general principles of equity;equity principles.
(iiic) The execution, delivery and performance of this Agreement by and the consummation of the transactions hereby (i) do not conflict with the provisions of the Seller’s governing instruments, (ii) will not violate any provisions of applicable law or regulation or any applicable order of any court or regulatory body, in each case, as any such provision or order applies to the Seller and (xiii) does not conflict and will not conflict with, does not breach and will not result in a the breach of and does not constitute and will not constitute a default (of, or an event, which with notice or lapse of time or both, would constitute a default) , or require any consent, under (A) any terms or provisions of the organizational documents of the Seller, (B) any term or provision of any material agreement, contract, instrument or indenture, document to which the Seller it is a party or by which the Seller it or any of its property is boundmay be bound or affected, or (C) any lawexcept, rule, regulation, order, judgment, writ, injunction or decree of any court or governmental authority having jurisdiction over the Seller or any of its property and (y) does not create or impose and will not result in the creation case of clause (ii) or imposition clause (iii) above, to the extent that the failure of any lien, charge or encumbrance (other than any created hereby in favor of the Purchaser such representation and its assignees) which warranty to be true would not reasonably be expected to have a material and adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loans;
(iv) No consent, approval, authorization or order of, registration or filing with, or notice on behalf of the Seller to any governmental authority or court is required, under federal laws or the laws of the State of New York, for the execution, delivery and performance by the Seller of, or compliance by the Seller with, this Agreement or the consummation by the Seller of any other transaction contemplated hereby and by the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificates;
(v) The Seller is not in violation of, and the execution and delivery of this Agreement by the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over the Seller or its assets, which violation might have consequences that would materially and adversely affect the condition (financial or otherwise) or the operation of the Seller or its assets or might have consequences that would materially and adversely affect the performance of its obligations and duties hereunder;
(vi) The Seller 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) Immediately prior to the sale of the Mortgage Loans to the Purchaser as herein contemplated, the Seller was the owner of the related Mortgage and the indebtedness evidenced by the related Mortgage Note, and, upon the payment to the Seller of the Purchase Price, in the event that the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereof;
(viii) There are no actions or proceedings against, or investigations known to it of, the Seller before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans by the Seller or the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by the Seller of its obligations under, or the validity or enforceability of, this Agreement;, or on the value, validity or enforceability of the Purchased Notes or the Purchased Warrants.
(ixd) No actions, suits, proceedings or governmental investigations at law or in equity are pending or active (or, to its knowledge, threatened in writing) against the Seller before any governmental authority or any arbitrator (i) asserting the invalidity of this Agreement, (ii) seeking to prevent the consummation of any of the transactions contemplated by this Agreement, or (iii) seeking any determination or ruling that would reasonably be expected to have a material and adverse effect on the performance by the Seller of its obligations under, or the validity or enforceability of, this Agreement, or on the value, validity or enforceability of the Purchased Notes or the Purchased Warrants.
(e) The Seller has obtained all consents and authorizations (including all required consents and authorizations of any governmental authority) that are necessary to be obtained by it in connection with the execution, delivery and performance by the Seller of this Agreement, and each such consent and authorization is in full force and effect, in each case, except to the extent that the failure to obtain any such consent or authorization would not reasonably be expected to have a material and adverse effect on the performance by the Seller of its obligations under, or the validity or enforceability of, this Agreement, or on the value, validity or enforceability of the Purchased Notes or the Purchased Warrants.
(f) No filing with, or authorization, approval, consent, notice, license, order, registration, qualification, decree or other action of, any court, governmental authority or agency or any other person is necessary to be filed, noticed, or otherwise applied for by the Seller, other than ordinary course filings under securities laws, in connection with (i) the sale by the Seller of the Purchased Notes and the Purchased Warrants, (ii) the authorization, execution, delivery and performance by the Seller of this Agreement or (iii) the consummation by the Seller of the transactions contemplated hereby, except such as have been, or at the Settlement Date will have been, obtained and are in full force and effect as of the Settlement Date.
(g) As of the Settlement Date (i) the Seller has good and marketable title to the Purchased Notes and the Purchased Warrants, free and clear of any lien, mortgage, security interest, pledge, adverse claim, charge or other encumbrance or restrictions on transferability, and the Seller has the full right, power and lawful authority to assign, transfer and sell the Purchased Notes and the Purchased Warrants, and (ii) the consummation of the transactions contemplated by this Agreement are in shall not cause the ordinary course of business Purchased Notes and Purchased Warrants, to be subject to any lien, mortgage, security interest, pledge, adverse claim, charge or other encumbrance of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;of its creditors.
(xh) The Seller has not dealt with any brokerpledged, investment bankerassigned, agent or other personsold, except for the Purchaser or any of its affiliates, that may be entitled to any commission or compensation in connection with the sale of the Mortgage Loans (except that an entity that previously financed the Seller’s ownership of the Mortgage Loans may be entitled to granted a fee to release its security interest in the Mortgage Loans, which fee shall have been paid and which security or otherwise encumbered or conveyed any interest shall have been released on or prior to the Closing Date);
(xi) There is no litigation currently pending or, to the best in any of the Seller’s knowledge without independent investigation, threatened against Purchased Notes or the Purchased Warrants and no effective financing statement or other instrument similar in effect naming or purportedly naming the Seller that would reasonably be expected to adversely affect the transfer of the Mortgage Loans, the issuance of the Certificates as debtor and covering all or the execution, delivery, performance or enforceability of this Agreement, or that would result in a material adverse change in the financial condition of the Seller; and
(xii) The information set forth in the applicable any part of the Closing Schedule relating Purchased Notes or the Purchased Warrants is on file in any recording office.
(i) The Seller has not received written notice of, and has no actual knowledge of, any offsets, counterclaims or other defenses with respect to the existence of a Prepayment Charge is complete, true and correct in all material respects at Purchased Notes or the date or dates respecting which such information is furnished and each Prepayment Charge is permissible and enforceable in accordance with its terms upon the mortgagor’s full and voluntary principal prepayment under applicable law, 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; (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 under applicable lawPurchased Warrants.
Appears in 1 contract
Representations, Warranties and Covenants of the Seller. The Seller hereby represents represents, warrants and warrants covenants to and agrees with the Purchaser, as of the date hereof of this Agreement and as of the the Closing Date, and covenants, that:Date that:
(ia) The Seller is a Delaware corporation with full corporate power duly organized and authority to conduct its business as presently conducted by it to validly existing under the extent material to the consummation laws of the transactions contemplated herein. The Agreement has been duly authorizedjurisdiction of the State of Delaware, executed and delivered by the Seller. The Seller had the full corporate with power and authority to own the Mortgage Loans its properties and to transfer conduct its business as such properties shall be currently owned and convey the Mortgage Loans to the Purchaser and such business is presently conducted, and has the full corporate all requisite power and authority to execute execute, deliver and deliver, engage in perform this Agreement and to consummate the transactions contemplated by, and perform and observe the terms and conditions of this Agreement;herein contemplated.
(iib) The Seller has duly authorized the execution, delivery and performance of this Agreement, has and the consummation of the transactions contemplated herein, have been duly executed and delivered this Agreementauthorized by the Seller, and this Agreement, assuming due authorization, execution and delivery by the Purchaser, Agreement constitutes a its legal, valid and binding obligation of the Seller, enforceable against it in accordance accordance with its terms terms, except as the enforceability thereof may be limited by bankruptcy, insolvency insolvency, reorganization or reorganization other similar laws affecting creditors’ rights generally or by general principles of equity;equity principles.
(iiic) The execution, delivery and performance of this Agreement by and the Seller consummation of the transactions hereby (xi) does do not conflict and with the provisions of the Seller’s governing instruments, (ii) will not conflict withviolate any provisions of applicable law or regulation or any applicable order of any court or regulatory body, does not breach in each case, as any such provision or order applies to the Seller and (iii) will not result in a the breach of and does not constitute and will not constitute a default (of, or an event, which with notice or lapse of time or both, would constitute a default) , or require any consent, under (A) any terms or provisions of the organizational documents of the Seller, (B) any term or provision of any material agreement, contract, instrument or indenture, document to which the Seller it is a party or by which the Seller it or any any of its property is boundmay be bound or affected.
(d) No actions, suits, proceedings or governmental investigations at law or in equity are pending or active (or, to its knowledge, threatened in writing) against the Seller before any governmental authority or any arbitrator (i) asserting the invalidity of this Agreement, (ii) seeking to prevent the consummation of any of the transactions contemplated by this Agreement, or (Ciii) seeking any lawdetermination or ruling that would reasonably be expected to have a material and adverse effect on the performance by the Seller of its obligations under, or the validity or enforceability of, rulethis Agreement, regulationor on the value, ordervalidity or enforceability of this Agreement, judgment, writ, injunction or decree the Amended and Restated Note and/or any of the Security Documents.
(e) The Seller has obtained all consents and authorizations (including all required consents and authorizations of any court or governmental authority having jurisdiction over the Seller or any of its property and (yauthority) does not create or impose and will not result that are necessary to be obtained by it in the creation or imposition of any lien, charge or encumbrance (other than any created hereby in favor of the Purchaser and its assignees) which would have a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loans;
(iv) No consent, approval, authorization or order of, registration or filing with, or notice on behalf of the Seller to any governmental authority or court is required, under federal laws or the laws of the State of New York, for connection with the execution, delivery and performance by the Seller of this Agreement, and each such consent and authorization is in full force and effect.
(f) No filing with, or authorization, approval, consent, notice, license, order, registration, qualification, decree or other action of, any court, governmental authority or compliance agency or any other Person is necessary to be filed, obtained, recorded, notified, or otherwise applied for by the Seller within connection with (i) the assignment, transfer and sale by the Seller of the Amended and Restated Note and the Security Documents, (ii) the authorization, execution, delivery and performance by the Seller of this Agreement or (iii) the consummation by the Seller of the transactions contemplated hereby, except such as have been, or at the Closing Date will have been, obtained and are in full force and effect as of the Closing Date.
(g) The Seller has good and marketable title to the Amended and Restated Note and the Security Documents, free and clear of any Encumbrance or restriction on transferability, and the Seller has the full right, power and lawful authority to assign, transfer and sell the Amended and Restated Note and the Security Documents to the Purchaser and (ii) the consummation of the transactions contemplated by this Agreement shall not cause the Amended and Restated Note or any of the Security Documents, to be subject to any Encumbrance.
(h) The Seller has not pledged, assigned, sold, granted any Encumbrance in or otherwise Encumbered or assigned, transferred, sold or conveyed any interest in the Amended and Restated Note or any of the Security Documents and no effective financing statement or other transaction contemplated hereby instrument similar in effect naming or purportedly naming the Seller as debtor and/or covering all or any part of the Amended and Restated Note or any of the Security Documents is on file in any recording office.
(i) The Seller agrees that it will not re-sell or make the first trade in the Fee Securities in Canada or through the facilities of the Toronto Stock Exchange. For the avoidance of doubt, the parties hereto acknowledge and agree that any sales of Fee Securities in the United States or through the facilities of NASDAQ are not subject to any such restrictions.
(j) The Seller has not received written notice of, and has no knowledge of, any offsets, counterclaims, deductions, withholdings, claims or other defenses with respect to the Amended and Restated Note.
(k) With effect from the Closing Date:
(i) the Purchaser and its solicitors are authorized to register such documents, file such statements and give such notices as may be required by the Pooling Purchaser to record the assignment, transfer and Servicing Agreementsale of the Amended and Restated Note and each of the Security Documents to the Purchaser at all appropriate registry offices in that respect; and
(ii) the Seller authorizes the Purchaser and its counsel and any of their respective agents, employees or representatives, to file any and all security registrations, financing statements, finance change statements, charges and notices in connection with the assignment, transfer and sale of the Amended and Restated Note and each of the Security Documents to the Purchaser, as the Purchaser may require.
(l) For the period between the date of this agreement and the Closing Date, (x) the Seller will not, and will not agree to, enter into any short, hedge, forward contract, derivative or similar transaction relating to the Closing Shares (but not including any sale marked “short exempt”) and (y) the Seller will cause any of its Affiliates not to maintain a Net Short Position (as defined below). For the purposes of determining compliance with the foregoing, the following shall apply:
(i) For purposes hereof, a “Net Short Position” by a person means a position whereby such Person has executed one or more sales of Common Stock that is marked as a short sale (but not including any sale marked “short exempt”) and that is executed at a time when such Person has no equivalent offsetting “long” position in the Common Stock (or is deemed to have a long position in accordance with Regulation SHO of the 1934 Act); provided, howeverthat, for purposes of such calculations, any short sales either (x) that is a result of a bona-fide trading error on behalf of such Person (or its Affiliates) or required to be marked “short” by the broker of such Person at such time as such trade is not required to be marked “short” pursuant to Regulation SHO of the 1934 Act or (y) that would otherwise be marked as a “long” sale, but for the occurrence of a breach of any term or condition of any security or agreement, in each case, by the Purchaser or its transfer agent, as applicable, shall be excluded from such calculations.
(ii) For purposes of determining whether a Person has an equivalent offsetting “long” position in the Common Stock, (A) all Common Stock that is owned by such Person shall be deemed held “long” by such Person, (B) any shares of Common Stock issuable upon conversion and/or exercise of any convertible security, warrant and/or option of the Purchaser (without regard to any limitations on conversion or exercise thereof) shall be deemed held “long” by such Person, until such time as such Person shall no longer own such convertible security, warrant or option, and (C) any shares of Common Stock that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificates;
(v) The Seller is not in violation of, and the execution and delivery of this Agreement by Purchaser has elected to issue to the Seller and its performance and compliance with pursuant to the terms of this Agreement will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over shall be deemed held “long” by the Seller or its assets, which violation might have consequences that would materially and adversely affect the condition (financial or otherwise) or the operation of the Seller or its assets or might have consequences that would materially and adversely affect the performance of its obligations and duties hereunder;
(vi) The Seller 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) Immediately prior to the sale of the Mortgage Loans to the Purchaser as herein contemplated, the Seller was the owner of the related Mortgage and the indebtedness evidenced by the related Mortgage Note, and, upon the payment to the Seller of the Purchase Price, in the event that the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereof;
that is two (viii2) There are no actions Trading Days (or proceedings against, or investigations known such earlier date as required pursuant to it of, the Seller before any court, administrative 1934 Act or other tribunal (Aapplicable law, rule or regulation for the settlement of a trade of such Common Stock initiated on the applicable issuance date) that might prohibit its entering into this Agreement, (B) seeking prior to prevent the sale deadline for delivery of the Mortgage Loans by the Seller or the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by the Seller of its obligations under, or validity or enforceability of, this Agreement;
(ix) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of such Common Stock to the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;
(x) The Seller has not dealt with any broker, investment banker, agent or other person, except for the Purchaser or any of its affiliates, that may be entitled to any commission or compensation in connection with the sale of the Mortgage Loans (except that an entity that previously financed the Seller’s ownership of the Mortgage Loans may be entitled to a fee to release its security interest in the Mortgage Loans, which fee shall have been paid and which security interest shall have been released on or prior to the Closing Date);
(xi) There is no litigation currently pending or, to the best of the Seller’s knowledge without independent investigation, threatened against the Seller that would reasonably be expected to adversely affect the transfer of the Mortgage Loans, the issuance of the Certificates or the execution, delivery, performance or enforceability of this Agreement, or that would result in a material adverse change in the financial condition of the Seller; and
(xii) The information set forth in the applicable part of the Closing Schedule relating to the existence of a Prepayment Charge 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 upon the mortgagor’s full and voluntary principal prepayment under applicable law, 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; (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 under applicable lawthis Agreement.
Appears in 1 contract
Samples: Assignment and Assumption Agreement (Tilray Brands, Inc.)
Representations, Warranties and Covenants of the Seller. The Seller hereby represents and warrants to the Purchaser, as of the date hereof and as of the Closing Datewarrants, and covenantscovenants with, the Buyer that:
(ia) The Seller is a Delaware corporation with full corporate power an industrial loan company duly organized, validly existing, and authority in good standing under the Laws of the State of California and has all licenses necessary to conduct carry on its business as presently now being conducted by it to the extent material to the consummation of the transactions contemplated herein. The Agreement has been duly authorized, executed and delivered by the Seller. The Seller had the with full corporate power and authority to own its properties and conduct its business as such properties are presently owned and such business is presently conducted; Seller is licensed, qualified and in good standing in each jurisdiction where the Mortgage Loans Mortgaged Property is located and in each jurisdiction in which it owns or leases property if the laws of such state require licensing or qualification in order to transfer conduct business of the type conducted by Seller and convey the Mortgage Loans to the Purchaser and perform its obligations hereunder; Seller has the full corporate power and authority to execute and deliver, engage deliver this Agreement and to perform in the transactions contemplated by, accordance herewith and perform and observe the terms and conditions of this Agreement;
(ii) The Seller has duly authorized therewith; the execution, delivery and performance of this Agreement, has duly executed and Agreement (including all instruments of transfer to be delivered pursuant to this Agreement) by Seller and the consummation of the transactions contemplated hereby and thereby have been duly and validly authorized by all necessary corporate action; this Agreement evidences the valid, binding and enforceable obligation of Seller; and all requisite corporate action has been taken by Seller to make this AgreementAgreement valid, assuming due authorizationbinding and enforceable upon Seller in accordance with the respective terms of each, subject to the effect of Debtor Relief Laws, none of which will affect the ownership of the Mortgage Loans by the Buyer;
(b) All actions, approvals, consents, waivers, exemptions, variances, franchises, orders, permits, authorizations, rights and licenses required to be taken, given or obtained, as the case may be, by or from any federal, state or other governmental authority or agency that are necessary or advisable in connection with the sale of the Mortgage Loans to the Buyer and the execution and delivery by the Purchaser, constitutes a legal, valid and binding obligation Seller of the SellerAgreement and related documents, enforceable against it in accordance with its terms except have been duly taken, given or obtained, as the enforceability thereof case may be limited by bankruptcybe, insolvency or reorganization or by general principles of equity;are in full force and effect on the date hereof, are not subject to any pending proceedings or
(iiic) The execution, delivery and performance consummation of the transactions contemplated by this Agreement by the Seller (x) does not conflict and will not conflict with, does not breach and will not result in a the breach of and does not constitute and will not constitute a default (or an event, which with notice or lapse of time or both, would constitute a default) under (A) any terms or provisions of the organizational documents certificate of incorporation or bylaws of Seller or result in the Seller, (B) breach of any term or provision of, or conflict with or constitute a default under or result in the acceleration of any obligation under, any material agreement, contract, indenture or loan or credit agreement or other material instrument or indenture, to which the Seller is a party or by which the Seller or any of its property is boundsubject, or (C) result in the violation of any law, rule, regulation, order, judgment, writ, injunction judgment or decree of any court or governmental authority having jurisdiction over the to which Seller or any of its property and (y) does not create or impose and will not result in the creation or imposition of any lien, charge or encumbrance (other than any created hereby in favor of the Purchaser and its assignees) which would have a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loansis subject;
(ivd) No consentNeither this Agreement nor any statement, approval, authorization report or order of, registration other document furnished or filing with, or notice on behalf of the Seller to any governmental authority or court is required, under federal laws or the laws of the State of New York, for the execution, delivery and performance by the Seller of, or compliance by the Seller with, be furnished pursuant to this Agreement or the consummation by the Seller of any other transaction contemplated hereby and by the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale transactions contemplated hereby and thereby contains any untrue statement of material fact or distribution of omits to state a material fact necessary to make the Certificatesstatements contained herein or therein not misleading;
(ve) The Seller is not in violation of, and the execution and delivery of this Agreement by the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over the Seller or its assets, which violation might have consequences that would materially and adversely affect the condition (financial or otherwise) or the operation of the Seller or its assets or might have consequences that would materially and adversely affect the performance of its obligations and duties hereunder;
(vi) The Seller 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;
(viif) Immediately prior There is no action, suit, proceeding or investigation pending or threatened against Seller which, either in any one instance or in the aggregate, may (i) result in any material adverse change in the business, operations, financial condition, properties or assets of Seller or in any material impairment of the right or ability of Seller to carry on its business substantially as now conducted, or in any material liability on the part of Seller or of any action taken or to be taken in connection with the obligations of Seller contemplated herein, or which would be likely to impair the ability of Seller to perform under the terms of this Agreement or (ii) which would draw into question the validity of this Agreement or the Mortgage Loans;
(g) The Seller was, on the Origination of each Mortgage Loan and during the entire period that it held each Mortgage Loan, and is on the Closing Date, a lender authorized and approved by, and in good standing with, the Department of Corporations of the State of California.
(h) Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or governmental agency, which default might have consequences that would materially and adversely affect the condition (financial or other) or operations of Seller or its properties or might have consequences that would materially and adversely affect its performance hereunder;
(i) No information, certificate of an Officer, statement furnished in writing, or report required hereunder, delivered to the Buyer or its agents, to the knowledge of the Seller, contains any untrue statement of a material fact or omits to state a material fact necessary to make the information, certificate, statement or report not misleading, and there has been no material adverse change in the financial condition of the Seller since the date of the Seller's most recent financial statements delivered to the Buyer;
(j) The sale of each Mortgage Loan shall be reflected on the Seller's balance sheet and other financial statements as a sale of assets by the Seller. The Seller will not take any action or omit to take any action which would cause the transfer of the Mortgage Loans to the Purchaser Buyer to be treated as herein contemplated, anything other than a sale to the Seller was the owner Buyer of all of the related Mortgage Seller's right, title and the indebtedness evidenced by the related Mortgage Note, and, upon the payment to the Seller of the Purchase Price, interest in the event that the Seller retains or has retained record title, the Seller shall retain such record title and to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereofLoan;
(viii) There are no actions or proceedings against, or investigations known to it of, the Seller before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans by the Seller or the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by the Seller of its obligations under, or validity or enforceability of, this Agreement;
(ixk) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages Loans by the Seller pursuant to this Agreement are is not subject to the bulk transfer or any similar statutory provisions in effect in any relevant applicable jurisdiction. The Seller is not transferring the Mortgage Loans with an actual intent to hinder, except delay or defraud any as may have been complied withof its creditors. The Seller is solvent and will not be rendered insolvent by the sale of the Mortgage Loans;
(xl) The Seller In the opinion of the Seller, it has not dealt with any broker, investment banker, agent or other person, except received fair consideration and reasonably equivalent value in exchange for the Purchaser or any of its affiliates, that may be entitled to any commission or compensation in connection with the sale of the Mortgage Loans (except that an entity that previously financed the Seller’s ownership of the Mortgage Loans may be entitled pursuant to a fee to release its security interest in the Mortgage Loans, which fee shall have been paid and which security interest shall have been released on or prior to the Closing Date);
(xi) There is no litigation currently pending or, to the best of the Seller’s knowledge without independent investigation, threatened against the Seller that would reasonably be expected to adversely affect the transfer of the Mortgage Loans, the issuance of the Certificates or the execution, delivery, performance or enforceability of this Agreement, or that would result in a material adverse change in the financial condition of the Seller; and
(xiim) The information set forth Seller will be in the full compliance with all applicable part federal and state regulatory capital requirements upon completion of the Closing Schedule relating sale effected hereunder. Seller is not operating under any order by any federal or state agency regulating its activities that would restrict its ability to the existence of a Prepayment Charge is complete, true and correct in all material respects at the date enter into or dates respecting which such information is furnished and each Prepayment Charge is permissible and enforceable in accordance with its terms upon the mortgagor’s full and voluntary principal prepayment under applicable law, 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; (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 under applicable lawperform this Agreement.
Appears in 1 contract
Samples: Mortgage Loan Purchase and Sale Agreement (Pacificamerica Money Center Inc)
Representations, Warranties and Covenants of the Seller. (a) The Seller hereby represents and warrants to the Purchasermakes, as of the date hereof (or as of such other date specifically provided in the particular representation or warranty), to and for the benefit of the Purchaser, the Trustee on behalf of the Certificateholders and the respective successors-in-interest of the Purchaser and the Trustee, each of the representations and warranties set forth in Exhibit C with respect to each Mortgage Loan, subject to the exceptions set forth in Schedule C-1 to Exhibit C.
(b) In addition, the Seller, as of the Closing Datedate hereof, hereby represents and warrants to, and covenantscovenants with, the Purchaser that:
(i) The Seller is a Delaware corporation corporation, duly organized, validly existing and in good standing under the laws of the State of New York and is in compliance with full corporate power and authority to conduct its business as presently conducted by it the laws of each State in which any Mortgaged Property is located to the extent material necessary to ensure the consummation enforceability of the transactions contemplated herein. The Agreement has been duly authorized, executed and delivered by the Seller. The Seller had the full corporate power and authority to own the each Mortgage Loans Loan and to transfer and convey the Mortgage Loans to the Purchaser and has the full corporate power and authority to execute and deliver, engage in the transactions contemplated by, and perform and observe the terms and conditions of its obligations under this Agreement;.
(ii) The execution and delivery of this Agreement by the Seller, and the performance of, and compliance with, the terms of this Agreement by the Seller, do not violate the Seller's organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets, in each case which materially and adversely affects the ability of the Seller to carry out the transactions contemplated by this Agreement.
(iii) The Seller has the full power and authority to enter into and consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement, and this .
(iv) This Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a legalvalid, valid legal and binding obligation of the Seller, enforceable against it the Seller in accordance with its the terms except as the enforceability thereof may be limited by hereof, subject to (A) applicable bankruptcy, insolvency or reorganization or by insolvency, reorganization, receivership, moratorium and other laws affecting the enforcement of creditors' rights generally, (B) general principles of equity;
, regardless of whether such enforcement is considered in a proceeding in equity or at law, and (iiiC) The executionpublic policy considerations underlying the securities laws, delivery and performance to the extent that such public policy considerations limit the enforceability of the provisions of this Agreement by the Seller (x) does not conflict and will not conflict with, does not breach and will not result in a breach of and does not constitute and will not constitute a default (that purport to provide indemnification or an event, which with notice or lapse of time or both, would constitute a default) under (A) any terms or provisions of the organizational documents of the Seller, (B) any term or provision of any material agreement, contract, instrument or indenture, to which the Seller is a party or by which the Seller or any of its property is bound, or (C) any law, rule, regulation, order, judgment, writ, injunction or decree of any court or governmental authority having jurisdiction over the Seller or any of its property and (y) does not create or impose and will not result in the creation or imposition of any lien, charge or encumbrance (other than any created hereby in favor of the Purchaser and its assignees) which would have a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loans;
(iv) No consent, approval, authorization or order of, registration or filing with, or notice on behalf of the Seller to any governmental authority or court is required, under federal laws or the laws of the State of New York, contribution for the execution, delivery and performance by the Seller of, or compliance by the Seller with, this Agreement or the consummation by the Seller of any other transaction contemplated hereby and by the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificates;liabilities.
(v) The Seller is not in violation of, and the its execution and delivery of this Agreement by the Seller and its performance of, and compliance with with, the terms of this Agreement will do not constitute a violation with respect toof, any law, any judgment, order or decree of any court or arbiter, or any order order, regulation or regulation demand of any federal, statestate or local governmental or regulatory authority, municipal or governmental agency having jurisdiction over which violation, in the Seller's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Seller to perform its obligations under this Agreement or its assetsthe financial condition of the Seller.
(vi) No litigation is pending or, which violation might have consequences that would to the best of the Seller's knowledge, threatened against the Seller the outcome of which, in the Seller's good faith and reasonable judgment, is likely to materially and adversely affect the condition (financial or otherwise) or the operation ability of the Seller or its assets or might have consequences that would materially and adversely affect the performance of to perform its obligations and duties hereunder;
(vi) The Seller does not believe, nor does it have any reason under this Agreement or cause to believe, that it cannot perform each and every covenant contained in this Agreement;the financial condition of the Seller.
(vii) Immediately prior to the sale of the Mortgage Loans to the Purchaser as herein contemplated, the Seller was the owner of the related Mortgage and the indebtedness evidenced by the related Mortgage Note, and, upon the payment to the Seller of the Purchase Price, in the event that the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereof;
(viii) There are no actions or proceedings against, or investigations known to it of, the Seller before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans by the Seller or the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by the Seller of its obligations under, or validity or enforceability of, this Agreement;
(ix) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;
(x) The Seller has not dealt with any broker, investment banker, agent or other person, except for other than the Purchaser or any of its Purchaser, the Underwriters, the Initial Purchasers, and their respective affiliates, that may be entitled to any commission or compensation in connection with the sale of the Mortgage Loans (except that an entity that previously financed or the Seller’s ownership consummation of any of the Mortgage Loans may be entitled to a fee to release its security interest in the Mortgage Loans, which fee shall have been paid and which security interest shall have been released on or prior to the Closing Date);other transactions contemplated hereby.
(xiviii) There is no litigation currently pending or, Insofar as it relates to the best of the Seller’s knowledge without independent investigation, threatened against the Seller that would reasonably be expected to adversely affect the transfer of the Mortgage Loans, the issuance of the Certificates or the execution, delivery, performance or enforceability of this Agreement, or that would result in a material adverse change in the financial condition of the Seller; and
(xii) The information set forth in the applicable part of the Closing Schedule relating Annex A-1 and Annex A-2 to the existence of a Prepayment Charge Prospectus Supplement (as defined in the Citigroup Indemnification Agreement) (the "Loan Detail") and, to the extent consistent therewith, the information set forth on the diskette attached to the Prospectus Supplement and the accompanying prospectus (the "Diskette"), is complete, true and correct in all material respects at respects. Insofar as it relates to the date description of the Mortgage Loans and/or the Seller and does not represent a restatement or dates respecting which such aggregation of the information on the Loan Detail, the information set forth in the Time of Sale Information (as defined in the Citigroup Indemnification Agreement), the Memorandum (as defined in the Citigroup Indemnification Agreement) (insofar as the Prospectus Supplement is furnished an exhibit thereto) and each Prepayment Charge is permissible in the Prospectus Supplement under the headings "Summary of the Prospectus Supplement--Relevant Parties and enforceable in accordance with its terms upon Dates--Sponsors," "--Mortgage Loan Sellers," "--Originators," "--The Mortgage Pool," "Risk Factors--Risks Related to the mortgagor’s full Mortgage Loans," "Transaction Parties--The Sponsors" and voluntary principal prepayment under applicable law"Description of the Mortgage Pool" and the information set forth on Annex A-1 and Annex A-2 and Annex B to the Prospectus Supplement, except and to the extent that: it contains information consistent with that on such Annex A-1 and Annex A-2 set forth on the Diskette, does not (or, in the case of the Time of Sale Information, did not as of the Time of Sale (as defined in the Citigroup Indemnification Agreement)) contain any untrue statement of a material fact or (in the case of the Memorandum, when read together with the other information specified therein as being available for review by investors) omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(ix) No consent, approval, authorization or order of, registration or filing with, or notice to, any governmental authority or court is required, under federal or state law (including, with respect to any bulk sale laws), for the execution, delivery and performance of, or compliance by, the Seller with this Agreement, or the consummation by the Seller of any transaction contemplated hereby, other than (1) the enforceability thereof may be limited by bankruptcyfiling or recording of financing statements, insolvency, moratorium, receivership instruments of assignment and other similar laws relating documents necessary in connection with the Seller's sale of the Mortgage Loans to creditors’ rights; the Purchaser, (2) the collectability thereof may be limited due to acceleration in connection with a foreclosure such consents, approvals, authorizations, qualifications, registrations, filings or other involuntary prepayment; notices as have been obtained, made or given and (3) subsequent changes where the lack of such consent, approval, authorization, qualification, registration, filing or notice would not have a material adverse effect on the performance by the Seller under this Agreement.
(c) Upon discovery by any of the Seller or the parties to the Pooling and Servicing Agreement of a breach of any of the representations and warranties made pursuant to and set forth in applicable law may limit subsection (b) above which materially and adversely affects the interests of the Purchaser or prohibit enforceability thereof under applicable lawa breach of any of the representations and warranties made pursuant to subsection (a) above and set forth in Exhibit C which materially and adversely affects the value of any Mortgage Loan, the value of the related Mortgaged Property or the interests therein of the Purchaser, the Trustee on behalf of the Certificateholders or any Certificateholder, the party discovering such breach shall give prompt written notice to the Seller and/or the other parties, as applicable.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (CD 2007-Cd5 Mortgage Trust)
Representations, Warranties and Covenants of the Seller. The Seller hereby represents and warrants to the Purchaser, Purchaser as of the date hereof and as of the Closing Date, and covenants, covenants that:
(i1) The Seller is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware corporation with full corporate power and authority is duly authorized and qualified to conduct its transact any and all business as presently contemplated by this Agreement to be conducted by it the Seller in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent material necessary to ensure the consummation ability of the transactions contemplated herein. The Agreement has been duly authorized, executed Master Servicer to enforce each Mortgage Loan and delivered by to service the Seller. Mortgage Loans in accordance with the terms of the Pooling and Servicing Agreement;
(2) The Seller had the full corporate power and authority to own the originate, hold and sell each Mortgage Loans and to transfer and convey the Mortgage Loans to the Purchaser Loan and has the full corporate power and authority to execute service each Mortgage Loan, and deliverto execute, engage in deliver and perform, and to enter into and consummate the transactions contemplated by, by this Agreement and perform and observe the terms and conditions of this Agreement;
(ii) The Seller has duly authorized by all necessary corporate action on the part of the Seller the execution, delivery and performance of this Agreement, ; this Agreement has been duly executed and delivered this Agreement, by the Seller and this Agreement, assuming the due authorization, execution and delivery thereof by the Purchaser, constitutes a legal, valid and binding obligation of the Seller, enforceable against it the Seller in accordance with its terms terms, except as to the extent that (a) the enforceability thereof may be limited by bankruptcy, insolvency or reorganization or by general principles insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally and (b) the remedy of equityspecific 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;
(iii3) The execution, execution and delivery and performance of this Agreement by the Seller, the servicing of the Mortgage Loans by the Seller (x) does not conflict under the Pooling and Servicing Agreement, 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 Seller and will not conflict with, does not breach and will not (A) result in a breach of and does not constitute and will not constitute a default (or an event, which with notice or lapse of time or both, would constitute a default) under (A) any terms or provisions of the organizational documents of the Seller, (B) any term or provision of the charter or by-laws of the Seller 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, contract, agreement or instrument or indenture, to which the Seller is a party or by which the Seller or any of its property is it may be bound, or (C) any lawstatute, rule, regulation, order, judgment, writ, injunction order or decree regulation applicable to the Seller of any court court, regulatory body, administrative agency or governmental authority body having jurisdiction over the Seller; and the Seller 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 Seller's knowledge, would in the future materially and adversely affect, (x) the ability of the Seller to perform its property and obligations under this Agreement or (y) does not create the business, operations, financial condition, properties or impose and will not result in the creation or imposition of any lien, charge or encumbrance (other than any created hereby in favor assets of the Purchaser and its assignees) which would have Seller taken as a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loanswhole;
(iv4) No consent, approval, authorization or order of, registration of any court or filing with, governmental agency or notice on behalf of the Seller to any governmental authority or court body is required, under federal laws or the laws of the State of New York, required for the execution, delivery and performance by the Seller of, or compliance by the Seller with, this Agreement or the consummation by of the transactions contemplated hereby, or if any such consent, approval, authorization or order is required, the Seller of any other transaction contemplated hereby and by has obtained the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificatessame;
(v5) The Seller is not an approved originator/servicer for Fannie Mae or Freddie Mac in violation ofgood standing and is a HUD approvex xxxxgagee puxxxxxx to Section 203 and Section 211 of the National Housing Act; and
(6) Except as otherwise disclosed in the Prospectus Supplement, and the execution and delivery of this Agreement by no litigation, action, suit, proceeding or investigation is pending against the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over the Seller or its assets, which violation might have consequences that would materially and adversely affect the condition (financial or otherwise) or the operation of the Seller or its assets or might have consequences that would materially and adversely affect the performance of its obligations and duties hereunder;
(vi) The Seller 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) Immediately prior to the sale of the Mortgage Loans to the Purchaser as herein contemplated, the Seller was the owner of the related Mortgage and the indebtedness evidenced by the related Mortgage Note, and, upon the payment to the Seller of the Purchase Price, in the event that the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereof;
(viii) There are no actions or proceedings against, or investigations known to it of, the Seller before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans by the Seller or the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by the Seller of its obligations under, or validity or enforceability of, this Agreement;
(ix) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;
(x) The Seller has not dealt with any broker, investment banker, agent or other person, except for the Purchaser or any of its affiliates, that may be entitled to any commission or compensation in connection with the sale of the Mortgage Loans (except that an entity that previously financed the Seller’s ownership of the Mortgage Loans may be entitled to a fee to release its security interest in the Mortgage Loans, which fee shall have been paid and which security interest shall have been released on or prior to the Closing Date);
(xi) There is no litigation currently pending or, to the best of the Seller’s knowledge without independent investigation, threatened against the Seller that would reasonably be expected to adversely affect the transfer of the Mortgage Loans, the issuance of the Certificates or the execution, delivery, performance delivery or enforceability of this Agreement, Agreement or that would result in a material adverse change in the financial condition ability of the Seller; and
(xii) The information set forth in Seller to service the applicable part Mortgage Loans or the Seller to perform any of the Closing Schedule relating to the existence of a Prepayment Charge 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 its other obligations hereunder in accordance with its the terms upon the mortgagor’s full and voluntary principal prepayment under applicable law, 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; (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 under applicable lawhereof.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Ameriquest Mortgage Securities Inc)
Representations, Warranties and Covenants of the Seller. The Seller hereby represents and warrants to the Purchaser, as of the date hereof and as of the Closing Date, and covenants, that:
(i) The Seller is a corporation organized under the laws of the state of Delaware corporation with full corporate power and authority to conduct its business as presently conducted by it to the extent material to the consummation of the transactions contemplated herein. The Agreement has been duly authorized, executed and delivered by the Seller. The Seller had the full corporate power and authority to own the Mortgage Loans and to transfer and convey the Mortgage Loans to the Purchaser and has the full corporate power and authority to execute and deliver, deliver and engage in the transactions contemplated by, and perform and observe the terms and conditions of of, this Agreement;
(ii) The Seller has duly authorized the execution, delivery and performance of this Agreement, has duly executed and delivered this Agreement, and this Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a legal, valid and binding obligation of the Seller, enforceable against it in accordance with its terms except as the enforceability thereof may be limited by bankruptcy, insolvency or reorganization or by general principles of equity;
(iii) The execution, delivery and performance of this Agreement by the Seller (x) does not conflict and will not conflict with, does not breach and will not result in a breach of and does not constitute and will not constitute a default (or an event, which with notice or lapse of time or both, would constitute a default) under (A) any terms or provisions of the organizational documents articles of incorporation or by-laws of the Seller, (B) any term or provision of any material agreement, contract, instrument or indenture, to which the Seller is a party or by which the Seller or any of its property is bound, or (C) any law, rule, regulation, order, judgment, writ, injunction or decree of any court or governmental authority having jurisdiction over the Seller or any of its property and (y) does not create or impose and will not result in the creation or imposition of any lien, charge or encumbrance (other than any created hereby in favor of the Purchaser and its assignees) which would have a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loans;
(iv) No consent, approval, authorization or order of, registration or filing with, or notice on behalf of the Seller to any governmental authority or court is required, under federal laws or the laws of the State of New York, for the execution, delivery and performance by the Seller of, or compliance by the Seller with, this Agreement or the consummation by the Seller of any other transaction contemplated hereby and by the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificates;
(v) The Seller is not in violation of, and the execution and delivery of this Agreement by the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over the Seller or its assets, which violation might have consequences that would materially and adversely affect the condition (financial or otherwise) or the operation of the Seller or its assets or might have consequences that would materially and adversely affect the performance of its obligations and duties hereunder;
(vi) The Seller 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) Immediately prior to the sale of the Mortgage Loans to the Purchaser as herein contemplated, the Seller was the owner of the related Mortgage and the indebtedness evidenced by the related Mortgage Note, and, upon the payment to the Seller of the Purchase Price, in the event that the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereof;
(viiivii) There are no actions or proceedings against, or investigations known to it of, the Seller before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans by the Seller or the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by the Seller of its obligations under, or validity or enforceability of, this Agreement;
(ixviii) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;
(x) The Seller has not dealt with any broker, investment banker, agent or other person, except for the Purchaser or any of its affiliates, that may be entitled to any commission or compensation in connection with the sale of the Mortgage Loans (except that an entity that previously financed the Seller’s ownership of the Mortgage Loans may be entitled to a fee to release its security interest in the Mortgage Loans, which fee shall have been paid and which security interest shall have been released on or prior to the Closing Date);
(xiix) There is no litigation currently pending or, to the best of the Seller’s knowledge without independent investigation, threatened against the Seller that would reasonably be expected to adversely affect the transfer of the Mortgage Loans, the issuance of the Certificates or the execution, delivery, performance or enforceability of this Agreement, or that would result in a material adverse change in the financial condition of the Seller; and
(xiix) The information set forth in the applicable part of the Closing Schedule relating to the existence of a Prepayment Charge 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 upon the mortgagor’s full and voluntary principal prepayment under applicable law, 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; (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 under applicable law[Reserved].
Appears in 1 contract
Samples: Pooling and Servicing Agreement (MortgageIT Securities Corp. Mortgage Loan Trust, Series 2007-2)
Representations, Warranties and Covenants of the Seller. (a) The Seller hereby represents makes, as of the Closing Date (or as of such other date specifically provided in the particular representation or warranty), to and warrants to for the benefit of the Purchaser, and its successors and assigns (including, without limitation, the Trustee and the holders of the Certificates), each of the representations and warranties set forth in Exhibit C, with such changes or modifications as may be permitted or required by the Rating Agencies.
(b) In addition, the Seller, as of the date hereof hereof, hereby represents and as of the Closing Datewarrants to, and covenantscovenants with, the Purchaser that:
(i) The Seller is a Delaware corporation limited partnership, duly organized, validly existing and in good standing under the laws of the State of New York, and is in compliance with full corporate power and authority to conduct its business as presently conducted by it the laws of each State in which any Mortgaged Property is located to the extent material necessary to ensure the consummation enforceability of the transactions contemplated herein. The Agreement has been duly authorized, executed and delivered by the Seller. The Seller had the full corporate power and authority to own the each Mortgage Loans Loan and to transfer and convey the Mortgage Loans to the Purchaser and has the full corporate power and authority to execute and deliver, engage in the transactions contemplated by, and perform and observe the terms and conditions of its obligations under this Agreement;.
(ii) The execution and delivery of this Agreement by the Seller, and the performance and compliance with the terms of this Agreement by the Seller, will not violate the Seller's organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets, in each case which materially and adversely affect the ability of the Seller to carry out the transactions contemplated by this Agreement.
(iii) The Seller has the full power and authority to enter into and consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement, and this .
(iv) This Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a legalvalid, valid legal and binding obligation of the Seller, enforceable against it the Seller in accordance with its the terms except as the enforceability thereof may be limited by hereof, subject to (A) applicable bankruptcy, insolvency or reorganization or by insolvency, reorganization, moratorium and other laws affecting the enforcement of creditors' rights generally, (B) general principles of equity;
, regardless of whether such enforcement is considered in a proceeding in equity or at law, and (iiiC) The executionpublic policy considerations underlying the securities laws, delivery and performance to the extent that such public policy considerations limit the enforceability of the provisions of this Agreement by the Seller (x) does not conflict and will not conflict with, does not breach and will not result in a breach of and does not constitute and will not constitute a default (or an event, which with notice or lapse of time or both, would constitute a default) under (A) any terms or provisions of the organizational documents of the Seller, (B) any term or provision of any material agreement, contract, instrument or indenture, that purport to which the Seller is a party or by which the Seller or any of its property is bound, or (C) any law, rule, regulation, order, judgment, writ, injunction or decree of any court or governmental authority having jurisdiction over the Seller or any of its property and (y) does not create or impose and will not result in the creation or imposition of any lien, charge or encumbrance (other than any created hereby in favor of the Purchaser and its assignees) which would have a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loans;
(iv) No consent, approval, authorization or order of, registration or filing with, or notice on behalf of the Seller to any governmental authority or court is required, under federal laws or the laws of the State of New York, provide indemnification for the execution, delivery and performance by the Seller of, or compliance by the Seller with, this Agreement or the consummation by the Seller of any other transaction contemplated hereby and by the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificates;liabilities.
(v) The Seller is not in violation of, and the its execution and delivery of this Agreement by the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect toof, any law, any order or decree of any court or arbiter, or any order order, regulation or regulation demand of any federal, state, municipal state or local governmental agency having jurisdiction over the Seller or its assetsregulatory authority, which violation might have consequences that would violation, in the Seller's good faith and reasonable judgment, is likely to affect materially and adversely affect either the condition (financial or otherwise) or the operation ability of the Seller or its assets or might have consequences that would materially and adversely affect the performance of to perform its obligations and duties hereunder;under this Agreement or the financial condition of the Seller.
(vi) The No litigation is pending with regard to which Seller does not believehas received service of process or, nor does it have any reason or cause to believe, that it cannot perform each and every covenant contained in this Agreement;
(vii) Immediately prior to the sale best of the Mortgage Loans to the Purchaser as herein contemplatedSeller's knowledge, threatened against the Seller was the owner outcome of the related Mortgage and the indebtedness evidenced by the related Mortgage Note, and, upon the payment to the Seller of the Purchase Pricewhich, in the event that Seller's good faith and reasonable judgment, could reasonably be expected to prohibit the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereof;
(viii) There are no actions or proceedings against, or investigations known to it of, the Seller before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans by the Seller or the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by ability of the Seller of to perform its obligations under, or validity or enforceability of, under this Agreement;.
(ix) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;
(xvii) The Seller has not dealt with any broker, investment banker, agent or other person, except for other than the Purchaser or any of its Purchaser, the Underwriters, the Initial Purchasers and their respective affiliates, that may be entitled to any commission or compensation in connection with the sale of the Mortgage Loans (except that an entity that previously financed or the Seller’s ownership consummation of any of the Mortgage Loans may be entitled to a fee to release other transactions contemplated hereby.
(viii) Neither the Seller nor anyone acting on its security behalf has (A) offered, pledged, sold, disposed of or otherwise transferred any Certificate, any interest in any Certificate or any other similar security to any person in any manner, (B) solicited any offer to buy or to accept a pledge, disposition or other transfer of any Certificate, any interest in any Certificate or any other similar security from any person in any manner, (C) otherwise approached or negotiated with respect to any Certificate, any interest in any Certificate or any other similar security with any person in any manner, (D) made any general solicitation by means of general advertising or in any other manner with respect to any Certificate, any interest in any Certificate or any similar security, or (E) taken any other action, that (in the Mortgage Loans, which fee shall have been paid and which security interest shall have been released on or prior to the Closing Date);
(xi) There is no litigation currently pending or, to the best case of any of the Seller’s knowledge without independent investigation, threatened against the Seller that acts described in clauses (A) through (E) above) would reasonably be expected to adversely affect the transfer constitute or result in a violation of the Mortgage Loans, Securities Act or any state securities law relating to or in connection with the issuance of the Certificates or any such similar security or require registration or qualification pursuant to the executionSecurities Act or any state securities law of any Certificate or any such similar security not otherwise intended to be a Registered Certificate. In addition, deliverythe Seller will not act, performance nor has it authorized or enforceability of this Agreementwill it authorize any person to act, or that would result in a material adverse change in the financial condition of the Seller; and
(xii) The information any manner set forth in the applicable part foregoing sentence with respect to any of the Closing Schedule relating Certificates or any such similar security or interests therein. For purposes of this paragraph 4(b)(viii), the term "similar security" shall be deemed to include, without limitation, any Mortgage Loan or Mortgage Loans or any security evidencing or, upon issuance, that would have evidenced an interest in the Mortgage Loans or the Other Mortgage Loans or any substantial number thereof.
(ix) Insofar as it relates to the existence Mortgage Loans, the information set forth on pages A-8 through A-11, inclusive, of a Prepayment Charge Annex A to the Prospectus Supplement (as defined in Section 9) (the "Loan Detail") and, to the extent consistent therewith, the information set forth on the diskette attached to the Prospectus Supplement and the accompanying prospectus (the "Diskette"), is complete, true and correct in all material respects at respects. Insofar as it relates to the date Mortgage Loans and/or the Seller and does not represent a restatement or dates respecting which such aggregation of the information is furnished on the Loan Detail, the information set forth in the Prospectus Supplement and each Prepayment Charge is permissible the Memorandum (as defined in Section 9) under the headings "Summary of Series 2000-C3 Transaction--The Mortgage Pool," "--Geographic Concentrations of the Mortgaged Properties," "--Property Types," "--Prepayment or Call Protection Provided by the Mortgage Loans," "--Payment Terms of the Mortgage Loans," "Risk Factors" and enforceable in accordance with its terms upon "Description of the mortgagor’s full Mortgage Pool", set forth on Annex A to the Prospectus Supplement and voluntary principal prepayment under applicable law, except (to the extent that: (1it contains information consistent with that on such Annex A) set forth on the enforceability thereof may be limited by bankruptcyDiskette, insolvency, moratorium, receivership and other similar laws relating to creditors’ rights; (2) the collectability thereof may be limited due to acceleration in connection with does not contain any untrue statement of a foreclosure or other involuntary prepayment; material fact or (3in the case of the Memorandum, when read together with the other information specified therein as being available for review by investors) subsequent changes omit to state any material fact necessary to make the statements therein, in applicable law may limit or prohibit enforceability thereof light of the circumstances under applicable lawwhich they were made, not misleading.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Gmac Commercial Mortgage Securities Inc)
Representations, Warranties and Covenants of the Seller. The Seller hereby represents and warrants to the Purchaser, Purchaser as of the date hereof and as of the Closing Date, and covenants, covenants that:
(i) The Seller is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware corporation with full corporate power and authority is duly authorized and qualified to conduct its transact any and all business as presently contemplated by this Agreement to be conducted by it the Seller in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the extent material to the consummation doing business laws of the transactions contemplated herein. The Agreement has been duly authorized, executed and delivered by the Seller. any such State;
(ii) The Seller had the full corporate power and authority to own the originate, hold and sell each Mortgage Loans and to transfer and convey the Mortgage Loans to the Purchaser Loan and has the full corporate power and authority to execute service each Mortgage Loan, and deliverto execute, engage in deliver and perform, and to enter into and consummate the transactions contemplated by, by this Agreement and perform and observe the terms and conditions of this Agreement;
(ii) The Seller has duly authorized by all necessary corporate action on the part of the Seller the execution, delivery and performance of this Agreement, ; this Agreement has been duly executed and delivered this Agreement, by the Seller and this Agreement, assuming the due authorization, execution and delivery thereof by the Purchaser, constitutes a legal, valid and binding obligation of the Seller, enforceable against it the Seller in accordance with its terms terms, except as to the extent that (a) the enforceability thereof may be limited by bankruptcy, insolvency or reorganization or by general principles insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally and (b) the remedy of equityspecific 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, execution and delivery and performance of this Agreement by the Seller, 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 Seller (x) does not conflict and will not conflict with, does not breach and will not (A) result in a breach of and does not constitute and will not constitute a default (or an event, which with notice or lapse of time or both, would constitute a default) under (A) any terms or provisions of the organizational documents of the Seller, (B) any term or provision of the charter or by-laws of the Seller 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, contract, agreement or instrument or indenture, to which the Seller is a party or by which the Seller or any of its property is it may be bound, or (C) any lawstatute, rule, regulation, order, judgment, writ, injunction order or decree regulation applicable to the Seller of any court court, regulatory body, administrative agency or governmental authority body having jurisdiction over the Seller; and the Seller 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 Seller's knowledge, would in the future materially and adversely affect, (x) the ability of the Seller to perform its property and obligations under this Agreement or (y) does not create the business, operations, financial condition, properties or impose and will not result in the creation or imposition of any lien, charge or encumbrance (other than any created hereby in favor assets of the Purchaser and its assignees) which would have Seller taken as a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loanswhole;
(iv) No consent, approval, authorization or order of, registration of any court or filing with, governmental agency or notice on behalf of the Seller to any governmental authority or court body is required, under federal laws or the laws of the State of New York, required for the execution, delivery and performance by the Seller of, or compliance by the Seller with, this Agreement or the consummation by of the transactions contemplated hereby, or if any such consent, approval, authorization or order is required, the Seller of any other transaction contemplated hereby and by has obtained the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificatessame;
(v) The Seller is not an approved originator for Fannie Mae or Freddie Mac in violation ofgxxx xxaxxxng and is x XXX approved mortgagee pursuant to Section 203 and Section 211 of the National Housing Act; and
(vi) Except as otherwise disclosed in the Prospectus Supplement, and the execution and delivery of this Agreement by no litigation, action suit, proceeding or investigation is pending against the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over the Seller or its assets, which violation might have consequences that would materially and adversely affect the condition (financial or otherwise) or the operation of the Seller or its assets or might have consequences that would materially and adversely affect the performance of its obligations and duties hereunder;
(vi) The Seller 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) Immediately prior to the sale of the Mortgage Loans to the Purchaser as herein contemplated, the Seller was the owner of the related Mortgage and the indebtedness evidenced by the related Mortgage Note, and, upon the payment to the Seller of the Purchase Price, in the event that the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereof;
(viii) There are no actions or proceedings against, or investigations known to it of, the Seller before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans by the Seller or the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by the Seller of its obligations under, or validity or enforceability of, this Agreement;
(ix) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;
(x) The Seller has not dealt with any broker, investment banker, agent or other person, except for the Purchaser or any of its affiliates, that may be entitled to any commission or compensation in connection with the sale of the Mortgage Loans (except that an entity that previously financed the Seller’s ownership of the Mortgage Loans may be entitled to a fee to release its security interest in the Mortgage Loans, which fee shall have been paid and which security interest shall have been released on or prior to the Closing Date);
(xi) There is no litigation currently pending or, to the best of the Seller’s knowledge without independent investigation, threatened against the Seller that would reasonably be expected to adversely affect the transfer of the Mortgage Loans, the issuance of the Certificates or the execution, delivery, performance delivery or enforceability of this Agreement, Agreement or that would result in a material adverse change in the financial condition to perform any of the Seller; and
(xii) The information set forth in the applicable part of the Closing Schedule relating to the existence of a Prepayment Charge 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 its other obligations hereunder in accordance with its the terms upon the mortgagor’s full and voluntary principal prepayment under applicable law, 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; (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 under applicable lawhereof.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Argent Securities Inc)
Representations, Warranties and Covenants of the Seller. (a) The Seller hereby represents makes, as of the Closing Date (or as of such other date specifically provided in the particular representation or warranty), to and warrants to for the benefit of the Purchaser, and its successors and assigns (including, without limitation, the Trustee and the holders of the Certificates), each of the representations and warranties set forth in Exhibit C, with such changes or modifications as may be permitted or required by the Rating Agencies.
(b) In addition, the Seller, as of the date hereof hereof, hereby represents and as of the Closing Datewarrants to, and covenantscovenants with, the Purchaser that:
(i) The Seller is a Delaware corporation corporation, duly organized, validly existing and in good standing under the laws of the State of Maryland, and is in compliance with full corporate power and authority to conduct its business as presently conducted by it the laws of each State in which any Mortgaged Property is located to the extent material necessary to ensure the consummation enforceability of the transactions contemplated herein. The Agreement has been duly authorized, executed and delivered by the Seller. The Seller had the full corporate power and authority to own the each Mortgage Loans Loan and to transfer and convey the Mortgage Loans to the Purchaser and has the full corporate power and authority to execute and deliver, engage in the transactions contemplated by, and perform and observe the terms and conditions of its obligations under this Agreement;.
(ii) The execution and delivery of this Agreement by the Seller, and the performance and compliance with the terms of this Agreement by the Seller, will not violate the Seller's organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Seller has the full power and authority to enter into and consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement, and this .
(iv) This Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a legalvalid, valid legal and binding obligation of the Seller, enforceable against it the Seller in accordance with its the terms except as the enforceability thereof may be limited by hereof, subject to (A) applicable bankruptcy, insolvency or reorganization or by insolvency, reorganization, moratorium and other laws affecting the enforcement of creditors' rights generally, (B) general principles of equity;
, regardless of whether such enforcement is considered in a proceeding in equity or at law, and (iiiC) The executionpublic policy considerations underlying the securities laws, delivery and performance to the extent that such public policy considerations limit the enforceability of the provisions of this Agreement by the Seller (x) does not conflict and will not conflict with, does not breach and will not result in a breach of and does not constitute and will not constitute a default (or an event, which with notice or lapse of time or both, would constitute a default) under (A) any terms or provisions of the organizational documents of the Seller, (B) any term or provision of any material agreement, contract, instrument or indenture, that purport to which the Seller is a party or by which the Seller or any of its property is bound, or (C) any law, rule, regulation, order, judgment, writ, injunction or decree of any court or governmental authority having jurisdiction over the Seller or any of its property and (y) does not create or impose and will not result in the creation or imposition of any lien, charge or encumbrance (other than any created hereby in favor of the Purchaser and its assignees) which would have a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loans;
(iv) No consent, approval, authorization or order of, registration or filing with, or notice on behalf of the Seller to any governmental authority or court is required, under federal laws or the laws of the State of New York, provide indemnification for the execution, delivery and performance by the Seller of, or compliance by the Seller with, this Agreement or the consummation by the Seller of any other transaction contemplated hereby and by the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificates;liabilities.
(v) The Seller is not in violation of, and the its execution and delivery of this Agreement by the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect toof, any law, any order or decree of any court or arbiter, or any order order, regulation or regulation demand of any federal, state, municipal state or local governmental agency having jurisdiction over the Seller or its assetsregulatory authority, which violation might have consequences that would violation, in the Seller's good faith and reasonable judgment, is likely to affect materially and adversely affect either the condition (financial or otherwise) or the operation ability of the Seller or its assets or might have consequences that would materially and adversely affect the performance of to perform its obligations and duties hereunder;under this Agreement or the financial condition of the Seller.
(vi) The No litigation is pending with regard to which Seller does not believehas received service of process or, nor does it have any reason or cause to believe, that it cannot perform each and every covenant contained in this Agreement;
(vii) Immediately prior to the sale best of the Mortgage Loans to the Purchaser as herein contemplatedSeller's knowledge, threatened against the Seller was the owner outcome of the related Mortgage and the indebtedness evidenced by the related Mortgage Note, and, upon the payment to the Seller of the Purchase Pricewhich, in the event that Seller's good faith and reasonable judgment, could reasonably be expected to prohibit the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereof;
(viii) There are no actions or proceedings against, or investigations known to it of, the Seller before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans by the Seller or the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by ability of the Seller of to perform its obligations under, or validity or enforceability of, under this Agreement;.
(ix) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;
(xvii) The Seller has not dealt with any broker, investment banker, agent or other person, except for other than the Purchaser or any of its Purchaser, the Underwriters, the Initial Purchasers, and their respective affiliates, that may be entitled to any commission or compensation in connection with the sale of the Mortgage Loans (except that an entity that previously financed or the Seller’s ownership consummation of any of the Mortgage Loans may be entitled to a fee to release other transactions contemplated hereby.
(viii) Neither the Seller nor anyone acting on its security behalf has (A) offered, pledged, sold, disposed of or otherwise transferred any Certificate, any interest in any Certificate or any other similar security to any person in any manner, (B) solicited any offer to buy or to accept a pledge, disposition or other transfer of any Certificate, any interest in any Certificate or any other similar security from any person in any manner, (C) otherwise approached or negotiated with respect to any Certificate, any interest in any Certificate or any other similar security with any person in any manner, (D) made any general solicitation by means of general advertising or in any other manner with respect to any Certificate, any interest in any Certificate or any similar security, or (E) taken any other action, that (in the Mortgage Loans, which fee shall have been paid and which security interest shall have been released on or prior to the Closing Date);
(xi) There is no litigation currently pending or, to the best case of any of the Seller’s knowledge without independent investigation, threatened against the Seller that acts described in clauses (A) through (E) above) would reasonably be expected to adversely affect the transfer constitute or result in a violation of the Mortgage Loans, Securities Act or any state securities law relating to or in connection with the issuance of the Certificates or require registration or qualification pursuant to the executionSecurities Act or any state securities law of any Certificate not otherwise intended to be a Registered Certificate. In addition, deliverythe Seller will not act, performance nor has it authorized or enforceability of this Agreementwill it authorize any person to act, or that would result in a material adverse change in the financial condition of the Seller; and
(xii) The information any manner set forth in the applicable part foregoing sentence with respect to any of the Closing Schedule relating Certificates or interests therein. For purposes of this paragraph 4(b)(viii), the term "similar security" shall be deemed to include, without limitation, any security evidencing or, upon issuance, that would have evidenced an interest in the Mortgage Loans or any substantial number thereof.
(ix) Insofar as it relates to the existence Mortgage Loans, the information set forth on pages A-7 through A-12, inclusive, of a Prepayment Charge Annex A to the Prospectus Supplement (as defined in Section 9) (the "Loan Detail") and, to the extent consistent therewith, the information set forth on the diskette attached to the Prospectus Supplement and the accompanying prospectus (the "Diskette"), is complete, true and correct in all material respects at respects. Insofar as it relates to the date Mortgage Loans and/or the Seller and does not represent a restatement or dates respecting which such aggregation of the information is furnished on the Loan Detail, the information set forth in the Prospectus Supplement and each Prepayment Charge is permissible the Memorandum (also as defined in Section 9) under the headings "Summary of the Prospectus Supplement--The Mortgage Asset Pool", "Risk Factors--The Mortgage Loans" and enforceable in accordance with its terms upon "Description of the mortgagor’s full Mortgage Asset Pool", set forth on Annex A to the Prospectus Supplement and voluntary principal prepayment under applicable law, except (to the extent that: (1it contains information consistent with that on such Annex A) set forth on the enforceability thereof may be limited by bankruptcyDiskette, insolvency, moratorium, receivership and other similar laws relating to creditors’ rights; (2) the collectability thereof may be limited due to acceleration in connection with does not contain any untrue statement of a foreclosure or other involuntary prepayment; material fact or (3in the case of the Memorandum, when read together with the other information specified therein as being available for review by investors) subsequent changes omit to state any material fact necessary to make the statements therein, in applicable law may limit or prohibit enforceability thereof light of the circumstances under applicable lawwhich they were made, not misleading.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Gmac Commercial Mortgage Securities Inc)
Representations, Warranties and Covenants of the Seller. (a) The Seller hereby represents makes, as of the Closing Date (or as of such other date specifically provided in the particular representation or warranty), to and warrants to for the benefit of the Purchaser, and its successors and assigns (including, without limitation, the Trustee and the holders of the Certificates), each of the representations and warranties set forth in Exhibit C, with such changes or modifications as may be permitted or required by the Rating Agencies.
(b) In addition, the Seller, as of the date hereof hereof, hereby represents and as of the Closing Datewarrants to, and covenantscovenants with, the Purchaser that:
(i) The Seller is a Delaware corporation corporation, duly organized, validly existing and in good standing under the laws of the State of California, and is in compliance with full corporate power and authority to conduct its business as presently conducted by it the laws of each State in which any Mortgaged Property is located to the extent material necessary to ensure the consummation enforceability of the transactions contemplated herein. The Agreement has been duly authorized, executed and delivered by the Seller. The Seller had the full corporate power and authority to own the each Mortgage Loans Loan and to transfer and convey the Mortgage Loans to the Purchaser and has the full corporate power and authority to execute and deliver, engage in the transactions contemplated by, and perform and observe the terms and conditions of its obligations under this Agreement;.
(ii) The execution and delivery of this Agreement by the Seller, and the performance and compliance with the terms of this Agreement by the Seller, will not violate the Seller's organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Seller has the full power and authority to enter into and consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement, and this .
(iv) This Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a legalvalid, valid legal and binding obligation of the Seller, enforceable against it the Seller in accordance with its the terms except as the enforceability thereof may be limited by hereof, subject to (A) applicable bankruptcy, insolvency or reorganization or by insolvency, reorganization, moratorium and other laws affecting the enforcement of creditors' rights generally, (B) general principles of equity;
, regardless of whether such enforcement is considered in a proceeding in equity or at law, and (iiiC) The executionpublic policy considerations underlying the securities laws, delivery and performance to the extent that such public policy considerations limit the enforceability of the provisions of this Agreement by the Seller (x) does not conflict and will not conflict with, does not breach and will not result in a breach of and does not constitute and will not constitute a default (or an event, which with notice or lapse of time or both, would constitute a default) under (A) any terms or provisions of the organizational documents of the Seller, (B) any term or provision of any material agreement, contract, instrument or indenture, that purport to which the Seller is a party or by which the Seller or any of its property is bound, or (C) any law, rule, regulation, order, judgment, writ, injunction or decree of any court or governmental authority having jurisdiction over the Seller or any of its property and (y) does not create or impose and will not result in the creation or imposition of any lien, charge or encumbrance (other than any created hereby in favor of the Purchaser and its assignees) which would have a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loans;
(iv) No consent, approval, authorization or order of, registration or filing with, or notice on behalf of the Seller to any governmental authority or court is required, under federal laws or the laws of the State of New York, provide indemnification for the execution, delivery and performance by the Seller of, or compliance by the Seller with, this Agreement or the consummation by the Seller of any other transaction contemplated hereby and by the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificates;liabilities.
(v) The Seller is not in violation of, and the its execution and delivery of this Agreement by the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect toof, any law, any order or decree of any court or arbiter, or any order order, regulation or regulation demand of any federal, state, municipal state or local governmental agency having jurisdiction over the Seller or its assetsregulatory authority, which violation might have consequences that would violation, in the Seller's good faith and reasonable judgment, is likely to affect materially and adversely affect either the condition (financial or otherwise) or the operation ability of the Seller or its assets or might have consequences that would materially and adversely affect the performance of to perform its obligations and duties hereunder;under this Agreement or the financial condition of the Seller.
(vi) The No litigation is pending with regard to which Seller does not believehas received service of process or, nor does it have any reason or cause to believe, that it cannot perform each and every covenant contained in this Agreement;
(vii) Immediately prior to the sale best of the Mortgage Loans to the Purchaser as herein contemplatedSeller's knowledge, threatened against the Seller was the owner outcome of the related Mortgage and the indebtedness evidenced by the related Mortgage Note, and, upon the payment to the Seller of the Purchase Pricewhich, in the event that Seller's good faith and reasonable judgment, could reasonably be expected to prohibit the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereof;
(viii) There are no actions or proceedings against, or investigations known to it of, the Seller before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans by the Seller or the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by ability of the Seller of to perform its obligations under, or validity or enforceability of, under this Agreement;.
(ix) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;
(xvii) The Seller has not dealt with any broker, investment banker, agent or other person, except for other than the Purchaser or any of its Purchaser, the Underwriters, the Initial Purchasers and their respective affiliates, that may be entitled to any commission or compensation in connection with the sale of the Mortgage Loans (except that an entity that previously financed or the Seller’s ownership consummation of any of the Mortgage Loans may be entitled to a fee to release other transactions contemplated hereby.
(viii) Neither the Seller nor anyone acting on its security behalf has (A) offered, pledged, sold, disposed of or otherwise transferred any Certificate, any interest in any Certificate or any other similar security to any person in any manner, (B) solicited any offer to buy or to accept a pledge, disposition or other transfer of any Certificate, any interest in any Certificate or any other similar security from any person in any manner, (C) otherwise approached or negotiated with respect to any Certificate, any interest in any Certificate or any other similar security with any person in any manner, (D) made any general solicitation by means of general advertising or in any other manner with respect to any Certificate, any interest in any Certificate or any similar security, or (E) taken any other action, that (in the Mortgage Loans, which fee shall have been paid and which security interest shall have been released on or prior to the Closing Date);
(xi) There is no litigation currently pending or, to the best case of any of the Seller’s knowledge without independent investigation, threatened against the Seller that acts described in clauses (A) through (E) above) would reasonably be expected to adversely affect the transfer constitute or result in a violation of the Mortgage Loans, Securities Act or any state securities law relating to or in connection with the issuance of the Certificates or require registration or qualification pursuant to the executionSecurities Act or any state securities law of any Certificate not otherwise intended to be a Registered Certificate. In addition, deliverythe Seller will not act, performance nor has it authorized or enforceability of this Agreementwill it authorize any person to act, or that would result in a material adverse change in the financial condition of the Seller; and
(xii) The information any manner set forth in the applicable part foregoing sentence with respect to any of the Closing Schedule relating Certificates or interests therein. For purposes of this paragraph 4(b)(viii), the term "similar security" shall be deemed to include, without limitation, any security evidencing or, upon issuance, that would have evidenced an interest in the Mortgage Loans or any substantial number thereof.
(ix) Insofar as it relates to the existence Mortgage Loans, the information set forth on pages A-7 through A-12, inclusive, of a Prepayment Charge Annex A to the Prospectus Supplement (as defined in Section 9) (the "Loan Detail") and, to the extent consistent therewith, the information set forth on the diskette attached to the Prospectus Supplement and the accompanying prospectus (the "Diskette"), is complete, true and correct in all material respects at respects. Insofar as it relates to the date Mortgage Loans and/or the Seller and does not represent a restatement or dates respecting which such aggregation of the information is furnished on the Loan Detail, the information set forth in the Prospectus Supplement and each Prepayment Charge is permissible the Memorandum (also as defined in Section 9) under the headings "Summary of the Prospectus Supplement--The Mortgage Asset Pool", "Risk Factors--The Mortgage Loans" and enforceable in accordance with its terms upon "Description of the mortgagor’s full Mortgage Asset Pool", set forth on Annex A to the Prospectus Supplement and voluntary principal prepayment under applicable law, except (to the extent that: (1it contains information consistent with that on such Annex A) set forth on the enforceability thereof may be limited by bankruptcyDiskette, insolvency, moratorium, receivership and other similar laws relating to creditors’ rights; (2) the collectability thereof may be limited due to acceleration in connection with does not contain any untrue statement of a foreclosure or other involuntary prepayment; material fact or (3in the case of the Memorandum, when read together with the other information specified therein as being available for review by investors) subsequent changes omit to state any material fact necessary to make the statements therein, in applicable law may limit or prohibit enforceability thereof light of the circumstances under applicable lawwhich they were made, not misleading.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Gmac Commercial Mortgage Securities Inc)
Representations, Warranties and Covenants of the Seller. (a) The Seller hereby represents makes, as of the Closing Date (or as of such other date specifically provided in the particular representation or warranty), to and warrants for the benefit of the Purchaser, and its successors and assigns (including, without limitation, the Trustee and the holders of the Certificates), (i) each of the representations and warranties set forth in Exhibit C with respect to each Mortgage Loan other than the Participation Loan and (ii) with respect to the PurchaserParticipation Loan, each of the representations and warranties set forth in Exhibit E, with such changes or modifications as may be permitted or required by the Rating Agencies.
(b) In addition, the Seller, as of the date hereof hereof, hereby represents and as of the Closing Datewarrants to, and covenantscovenants with, the Purchaser that:
(i) The Seller is a Delaware corporation corporation, duly organized, validly existing and in good standing under the laws of the State of California, and is in compliance with full corporate power and authority to conduct its business as presently conducted by it the laws of each State in which any Mortgaged Property is located to the extent material necessary to ensure the consummation enforceability of the transactions contemplated herein. The Agreement has been duly authorized, executed and delivered by the Seller. The Seller had the full corporate power and authority to own the each Mortgage Loans Loan and to transfer and convey the Mortgage Loans to the Purchaser and has the full corporate power and authority to execute and deliver, engage in the transactions contemplated by, and perform and observe the terms and conditions of its obligations under this Agreement;.
(ii) The execution and delivery of this Agreement by the Seller, and the performance and compliance with the terms of this Agreement by the Seller, will not violate the Seller's organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets, in each case which materially and adversely affect the ability of the Seller to carry out the transactions contemplated by this Agreement.
(iii) The Seller has the full power and authority to enter into and consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement, and this .
(iv) This Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a legalvalid, valid legal and binding obligation of the Seller, enforceable against it the Seller in accordance with its the terms except as the enforceability thereof may be limited by hereof, subject to (A) applicable bankruptcy, insolvency or reorganization or by insolvency, reorganization, moratorium and other laws affecting the enforcement of creditors' rights generally, (B) general principles of equity;
, regardless of whether such enforcement is considered in a proceeding in equity or at law, and (iiiC) The executionpublic policy considerations underlying the securities laws, delivery and performance to the extent that such public policy considerations limit the enforceability of the provisions of this Agreement by the Seller (x) does not conflict and will not conflict with, does not breach and will not result in a breach of and does not constitute and will not constitute a default (or an event, which with notice or lapse of time or both, would constitute a default) under (A) any terms or provisions of the organizational documents of the Seller, (B) any term or provision of any material agreement, contract, instrument or indenture, that purport to which the Seller is a party or by which the Seller or any of its property is bound, or (C) any law, rule, regulation, order, judgment, writ, injunction or decree of any court or governmental authority having jurisdiction over the Seller or any of its property and (y) does not create or impose and will not result in the creation or imposition of any lien, charge or encumbrance (other than any created hereby in favor of the Purchaser and its assignees) which would have a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loans;
(iv) No consent, approval, authorization or order of, registration or filing with, or notice on behalf of the Seller to any governmental authority or court is required, under federal laws or the laws of the State of New York, provide indemnification for the execution, delivery and performance by the Seller of, or compliance by the Seller with, this Agreement or the consummation by the Seller of any other transaction contemplated hereby and by the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificates;liabilities.
(v) The Seller is not in violation of, and the its execution and delivery of this Agreement by the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect toof, any law, any order or decree of any court or arbiter, or any order order, regulation or regulation demand of any federal, state, municipal state or local governmental agency having jurisdiction over the Seller or its assetsregulatory authority, which violation might have consequences that would violation, in the Seller's good faith and reasonable judgment, is likely to affect materially and adversely affect either the condition (financial or otherwise) or the operation ability of the Seller or its assets or might have consequences that would materially and adversely affect the performance of to perform its obligations and duties hereunder;under this Agreement or the financial condition of the Seller.
(vi) The No litigation is pending with regard to which Seller does not believehas received service of process or, nor does it have any reason or cause to believe, that it cannot perform each and every covenant contained in this Agreement;
(vii) Immediately prior to the sale best of the Mortgage Loans to the Purchaser as herein contemplatedSeller's knowledge, threatened against the Seller was the owner outcome of the related Mortgage and the indebtedness evidenced by the related Mortgage Note, and, upon the payment to the Seller of the Purchase Pricewhich, in the event that Seller's good faith and reasonable judgment, could reasonably be expected to prohibit the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereof;
(viii) There are no actions or proceedings against, or investigations known to it of, the Seller before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans by the Seller or the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by ability of the Seller of to perform its obligations under, or validity or enforceability of, under this Agreement;.
(ix) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;
(xvii) The Seller has not dealt with any broker, investment banker, agent or other person, except for other than the Purchaser or any of its Purchaser, the Underwriters, the Initial Purchasers and their respective affiliates, that may be entitled to any commission or compensation in connection with the sale of the Mortgage Loans (except that an entity that previously financed or the Seller’s ownership consummation of any of the Mortgage Loans may be entitled to a fee to release other transactions contemplated hereby.
(viii) Neither the Seller nor anyone acting on its security behalf has (A) offered, pledged, sold, disposed of or otherwise transferred any Certificate, any interest in any Certificate or any other similar security to any person in any manner, (B) solicited any offer to buy or to accept a pledge, disposition or other transfer of any Certificate, any interest in any Certificate or any other similar security from any person in any manner, (C) otherwise approached or negotiated with respect to any Certificate, any interest in any Certificate or any other similar security with any person in any manner, (D) made any general solicitation by means of general advertising or in any other manner with respect to any Certificate, any interest in any Certificate or any similar security, or (E) taken any other action, that (in the Mortgage Loans, which fee shall have been paid and which security interest shall have been released on or prior to the Closing Date);
(xi) There is no litigation currently pending or, to the best case of any of the Seller’s knowledge without independent investigation, threatened against the Seller that acts described in clauses (A) through (E) above) would reasonably be expected to adversely affect the transfer constitute or result in a violation of the Mortgage Loans, Securities Act or any state securities law relating to or in connection with the issuance of the Certificates or require registration or qualification pursuant to the executionSecurities Act or any state securities law of any Certificate not otherwise intended to be a Registered Certificate. In addition, deliverythe Seller will not act, performance nor has it authorized or enforceability of this Agreementwill it authorize any person to act, or that would result in a material adverse change in the financial condition of the Seller; and
(xii) The information any manner set forth in the applicable part foregoing sentence with respect to any of the Closing Schedule relating Certificates or interests therein. For purposes of this paragraph 4(b)(viii), the term "similar security" shall be deemed to include, without limitation, any security evidencing or, upon issuance, that would have evidenced an interest in the Mortgage Loans or the Warehouse Mortgage Loans or any substantial number thereof.
(ix) Insofar as it relates to the existence Mortgage Loans and the Warehouse Mortgage Loans, the information set forth on pages A-8 through A-11, inclusive, of a Prepayment Charge Annex A to the Prospectus Supplement (as defined in Section 9) (the "Loan Detail") and, to the extent consistent therewith, the information set forth on the diskette attached to the Prospectus Supplement and the accompanying prospectus (the "Diskette"), is complete, true and correct in all material respects at respects. Insofar as it relates to the date Mortgage Loans and the Warehouse Mortgage Loans and/or the Seller and does not represent a restatement or dates respecting which such aggregation of the information is furnished on the Loan Detail, the information set forth in the Prospectus Supplement and each Prepayment Charge is permissible the Memorandum (as defined in Section 9) under the headings "Summary of Series 2000-C3 Transaction--The Mortgage Pool," "--Geographic Concentrations of the Mortgaged Properties," "--Property Types," "--Prepayment or Call Protection Provided by the Mortgage Loans," "--Payment Terms of the Mortgage Loans," "Risk Factors" and enforceable in accordance with its terms upon "Description of the mortgagor’s full Mortgage Pool," set forth on Annex A to the Prospectus Supplement and voluntary principal prepayment under applicable law, except (to the extent that: (1it contains information consistent with that on such Annex A) set forth on the enforceability thereof may be limited by bankruptcyDiskette, insolvency, moratorium, receivership and other similar laws relating to creditors’ rights; (2) the collectability thereof may be limited due to acceleration in connection with does not contain any untrue statement of a foreclosure or other involuntary prepayment; material fact or (3in the case of the Memorandum, when read together with the other information specified therein as being available for review by investors) subsequent changes omit to state any material fact necessary to make the statements therein, in applicable law may limit or prohibit enforceability thereof light of the circumstances under applicable lawwhich they were made, not misleading.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Gmac Commercial Mortgage Securities Inc)
Representations, Warranties and Covenants of the Seller. The Seller hereby represents and warrants to the PurchaserPurchaser with respect to the Mortgage Loans, as of the date hereof and as of the Closing Date, and covenants, covenants that:
(i1) The Seller is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware corporation with full corporate power and authority is duly authorized and qualified to conduct its transact any and all business as presently contemplated by this Agreement to be conducted by it the Seller in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the extent material to the consummation doing business laws of the transactions contemplated herein. The Agreement has been duly authorized, executed and delivered by the Seller. any such State;
(2) The Seller had the full corporate power and authority to own the hold and sell each Mortgage Loans and to transfer and convey the Mortgage Loans to the Purchaser Loan and has the full corporate power and authority to execute service each Mortgage Loan and deliverto execute, engage in deliver and perform, and to enter into and consummate the transactions contemplated by, by this Agreement and perform and observe the terms and conditions of this Agreement;
(ii) The Seller has duly authorized by all necessary corporate action on the part of the Seller the execution, delivery and performance of this Agreement, ; this Agreement has been duly executed and delivered this Agreement, by the Seller; and this Agreement, assuming the due authorization, execution and delivery thereof by the Purchaser, constitutes a legal, valid and binding obligation of the Seller, enforceable against it the Seller in accordance with its terms terms, except as to the extent that (a) the enforceability thereof may be limited by bankruptcy, insolvency or reorganization or by general principles insolvency, moratorium, receivership and other similar laws relating to creditors’ rights generally and (b) the remedy of equityspecific 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;
(iii3) The execution, execution and delivery and performance of this Agreement by the Seller, the servicing of the Mortgage Loans by the Seller (x) does not conflict prior to the transfer thereof the Master Servicer, 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 Seller and will not conflict with, does not breach and will not (A) result in a breach of and does not constitute and will not constitute a default (or an event, which with notice or lapse of time or both, would constitute a default) under (A) any terms or provisions of the organizational documents of the Seller, (B) any term or provision of the charter or by-laws of the Seller 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, contract, agreement or instrument or indenture, to which the Seller is a party or by which the Seller or any of its property is it may be bound, or (C) any lawstatute, rule, regulation, order, judgment, writ, injunction order or decree regulation applicable to the Seller of any court court, regulatory body, administrative agency or governmental authority body having jurisdiction over the Seller; and the Seller 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 Seller’s knowledge, would in the future materially and adversely affect, (x) the ability of the Seller to perform its property and obligations under this Agreement or (y) does not create the business, operations, financial condition, properties or impose and will not result in the creation or imposition of any lien, charge or encumbrance (other than any created hereby in favor assets of the Purchaser and its assignees) which would have Seller taken as a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loanswhole;
(iv4) No consent, approval, authorization or order of, registration of any court or filing with, governmental agency or notice on behalf of the Seller to any governmental authority or court body is required, under federal laws or the laws of the State of New York, required for the execution, delivery and performance by the Seller of, or compliance by the Seller with, this Agreement or the consummation by of the transactions contemplated hereby, or if any such consent, approval, authorization or order is required, the Seller of any other transaction contemplated hereby and by has obtained the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificatessame;
(v5) The Seller is not an approved originator/servicer for Fxxxxx Mxx or Fxxxxxx Mac in violation ofgood standing and is a HUD approved mortgagee pursuant to Section 203 and Section 211 of the National Housing Act; and
(6) Except as otherwise disclosed in the Prospectus Supplement, and dated May 26, 2005 (the execution and delivery of this Agreement by “Prospectus Supplement”), no litigation is pending against the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over the Seller or its assets, which violation might have consequences that would materially and adversely affect the condition (financial or otherwise) or the operation of the Seller or its assets or might have consequences that would materially and adversely affect the performance of its obligations and duties hereunder;
(vi) The Seller 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) Immediately prior to the sale of the Mortgage Loans to the Purchaser as herein contemplated, the Seller was the owner of the related Mortgage and the indebtedness evidenced by the related Mortgage Note, and, upon the payment to the Seller of the Purchase Price, in the event that the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereof;
(viii) There are no actions or proceedings against, or investigations known to it of, the Seller before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans by the Seller or the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by the Seller of its obligations under, or validity or enforceability of, this Agreement;
(ix) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;
(x) The Seller has not dealt with any broker, investment banker, agent or other person, except for the Purchaser or any of its affiliates, that may be entitled to any commission or compensation in connection with the sale of the Mortgage Loans (except that an entity that previously financed the Seller’s ownership of the Mortgage Loans may be entitled to a fee to release its security interest in the Mortgage Loans, which fee shall have been paid and which security interest shall have been released on or prior to the Closing Date);
(xi) There is no litigation currently pending or, to the best of the Seller’s knowledge without independent investigation, threatened against the Seller that would reasonably be expected to adversely affect the transfer of the Mortgage Loans, the issuance of the Certificates or the execution, delivery, performance delivery or enforceability of this Agreement, Agreement or that would result in a material adverse change in the financial condition ability of the Seller; and
(xii) The information set forth in Seller to service the applicable part Mortgage Loans or the Seller to perform any of the Closing Schedule relating to the existence of a Prepayment Charge 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 its other obligations hereunder in accordance with its the terms upon the mortgagor’s full and voluntary principal prepayment under applicable law, 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; (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 under applicable lawhereof.
Appears in 1 contract
Representations, Warranties and Covenants of the Seller. (a) The Seller hereby represents makes, as of the Closing Date (or as of such other date specifically provided in the particular representation or warranty), to and warrants to for the benefit of the Purchaser, and its successors and assigns (including, without limitation, the Trustee and the holders of the Certificates), each of the representations and warranties set forth in Exhibit C, with such changes or modifications as may be permitted or required by the Rating Agencies.
(b) In addition, the Seller, as of the date hereof hereof, hereby represents and as of the Closing Datewarrants to, and covenantscovenants with, the Purchaser that:
(i) The Seller is a Delaware corporation limited partnership, duly organized, validly existing and in good standing under the laws of the State of New York, and is in compliance with full corporate power and authority to conduct its business as presently conducted by it the laws of each State in which any Mortgaged Property is located to the extent material necessary to ensure the consummation enforceability of the transactions contemplated herein. The Agreement has been duly authorized, executed and delivered by the Seller. The Seller had the full corporate power and authority to own the each Mortgage Loans Loan and to transfer and convey the Mortgage Loans to the Purchaser and has the full corporate power and authority to execute and deliver, engage in the transactions contemplated by, and perform and observe the terms and conditions of its obligations under this Agreement;.
(ii) The execution and delivery of this Agreement by the Seller, and the performance and compliance with the terms of this Agreement by the Seller, will not violate the Seller's organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets, in each case which materially and adversely affect the ability of the Seller to carry out the transactions contemplated by this Agreement.
(iii) The Seller has the full power and authority to enter into and consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement, and this .
(iv) This Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a legalvalid, valid legal and binding obligation of the Seller, enforceable against it the Seller in accordance with its the terms except as the enforceability thereof may be limited by hereof, subject to (A) applicable bankruptcy, insolvency or reorganization or by insolvency, reorganization, moratorium and other laws affecting the enforcement of creditors' rights generally, (B) general principles of equity;
, regardless of whether such enforcement is considered in a proceeding in equity or at law, and (iiiC) The executionpublic policy considerations underlying the securities laws, delivery and performance to the extent that such public policy considerations limit the enforceability of the provisions of this Agreement by the Seller (x) does not conflict and will not conflict with, does not breach and will not result in a breach of and does not constitute and will not constitute a default (or an event, which with notice or lapse of time or both, would constitute a default) under (A) any terms or provisions of the organizational documents of the Seller, (B) any term or provision of any material agreement, contract, instrument or indenture, that purport to which the Seller is a party or by which the Seller or any of its property is bound, or (C) any law, rule, regulation, order, judgment, writ, injunction or decree of any court or governmental authority having jurisdiction over the Seller or any of its property and (y) does not create or impose and will not result in the creation or imposition of any lien, charge or encumbrance (other than any created hereby in favor of the Purchaser and its assignees) which would have a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loans;
(iv) No consent, approval, authorization or order of, registration or filing with, or notice on behalf of the Seller to any governmental authority or court is required, under federal laws or the laws of the State of New York, provide indemnification for the execution, delivery and performance by the Seller of, or compliance by the Seller with, this Agreement or the consummation by the Seller of any other transaction contemplated hereby and by the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificates;liabilities.
(v) The Seller is not in violation of, and the its execution and delivery of this Agreement by the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect toof, any law, any order or decree of any court or arbiter, or any order order, regulation or regulation demand of any federal, state, municipal state or local governmental agency having jurisdiction over the Seller or its assetsregulatory authority, which violation might have consequences that would violation, in the Seller's good faith and reasonable judgment, is likely to affect materially and adversely affect either the condition (financial or otherwise) or the operation ability of the Seller or its assets or might have consequences that would materially and adversely affect the performance of to perform its obligations and duties hereunder;under this Agreement or the financial condition of the Seller.
(vi) The No litigation is pending with regard to which Seller does not believehas received service of process or, nor does it have any reason or cause to believe, that it cannot perform each and every covenant contained in this Agreement;
(vii) Immediately prior to the sale best of the Mortgage Loans to the Purchaser as herein contemplatedSeller's knowledge, threatened against the Seller was the owner outcome of the related Mortgage and the indebtedness evidenced by the related Mortgage Note, and, upon the payment to the Seller of the Purchase Pricewhich, in the event that Seller's good faith and reasonable judgment, could reasonably be expected to prohibit the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereof;
(viii) There are no actions or proceedings against, or investigations known to it of, the Seller before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans by the Seller or the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by ability of the Seller of to perform its obligations under, or validity or enforceability of, under this Agreement;.
(ix) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;
(xvii) The Seller has not dealt with any broker, investment banker, agent or other person, except for other than the Purchaser or any of its Purchaser, the Underwriters, the Initial Purchasers and their respective affiliates, that may be entitled to any commission or compensation in connection with the sale of the Mortgage Loans (except that an entity that previously financed or the Seller’s ownership consummation of any of the Mortgage Loans may be entitled to a fee to release other transactions contemplated hereby.
(viii) Neither the Seller nor anyone acting on its security behalf has (A) offered, pledged, sold, disposed of or otherwise transferred any Certificate, any interest in any Certificate or any other similar security to any person in any manner, (B) solicited any offer to buy or to accept a pledge, disposition or other transfer of any Certificate, any interest in any Certificate or any other similar security from any person in any manner, (C) otherwise approached or negotiated with respect to any Certificate, any interest in any Certificate or any other similar security with any person in any manner, (D) made any general solicitation by means of general advertising or in any other manner with respect to any Certificate, any interest in any Certificate or any similar security, or (E) taken any other action, that (in the Mortgage Loans, which fee shall have been paid and which security interest shall have been released on or prior to the Closing Date);
(xi) There is no litigation currently pending or, to the best case of any of the Seller’s knowledge without independent investigation, threatened against the Seller that acts described in clauses (A) through (E) above) would reasonably be expected to adversely affect the transfer constitute or result in a violation of the Mortgage Loans, Securities Act or any state securities law relating to or in connection with the issuance of the Certificates or require registration or qualification pursuant to the executionSecurities Act or any state securities law of any Certificate not otherwise intended to be a Registered Certificate. In addition, deliverythe Seller will not act, performance nor has it authorized or enforceability of this Agreementwill it authorize any person to act, or that would result in a material adverse change in the financial condition of the Seller; and
(xii) The information any manner set forth in the applicable part foregoing sentence with respect to any of the Closing Schedule relating Certificates or interests therein. For purposes of this paragraph 4(b)(viii), the term "similar security" shall be deemed to include, without limitation, any security evidencing or, upon issuance, that would have evidenced an interest in the Mortgage Loans or the Other Mortgage Loans or any substantial number thereof.
(ix) Insofar as it relates to the existence Mortgage Loans, the information set forth on pages A-8 through A-10, inclusive, of a Prepayment Charge Annex A to the Prospectus Supplement (as defined in Section 9) (the "Loan Detail") and, to the extent consistent therewith, the information set forth on the diskette attached to the Prospectus Supplement and the accompanying prospectus (the "Diskette"), is complete, true and correct in all material respects at respects. Insofar as it relates to the date Mortgage Loans and/or the Seller and does not represent a restatement or dates respecting which such aggregation of the information is furnished on the Loan Detail, the information set forth in the Prospectus Supplement and each Prepayment Charge is permissible the Memorandum (as defined in Section 9) under the headings "Summary of Series 2000-C1 Transaction--The Mortgage Pool," "--Geographic Concentrations of the Mortgaged Properties," "--Property Types," "--Call Protection provided by the Mortgage Loans," "--Payment Terms of the Mortgage Loans," "Risk Factors" and enforceable in accordance with its terms upon "Description of the mortgagor’s full Mortgage Pool", set forth on Annex A to the Prospectus Supplement and voluntary principal prepayment under applicable law, except (to the extent that: (1it contains information consistent with that on such Annex A) set forth on the enforceability thereof may be limited by bankruptcyDiskette, insolvency, moratorium, receivership and other similar laws relating to creditors’ rights; (2) the collectability thereof may be limited due to acceleration in connection with does not contain any untrue statement of a foreclosure or other involuntary prepayment; material fact or (3in the case of the Memorandum, when read together with the other information specified therein as being available for review by investors) subsequent changes omit to state any material fact necessary to make the statements therein, in applicable law may limit or prohibit enforceability thereof light of the circumstances under applicable lawwhich they were made, not misleading.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Gmac Commercial Mortgage Securities Inc)
Representations, Warranties and Covenants of the Seller. The Seller hereby represents and warrants to the Purchaser, as of Purchaser with respect to the date hereof and Initial Mortgage Loans as of the Closing DateDate and with respect to the Subsequent Mortgage Loans as of the respective Subsequent Transfer Date or as of such date specifically provided herein, and covenants, covenants that:
(i1) The Seller is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware corporation with full corporate power and authority is duly authorized and qualified to conduct its transact any and all business as presently contemplated by this Agreement to be conducted by it the Seller in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent material necessary to ensure the consummation ability of the transactions contemplated herein. The Agreement has been duly authorized, executed Master Servicer to enforce each Mortgage Loan and delivered by to service the Seller. Mortgage Loans in accordance with the terms of the Pooling and Servicing Agreement;
(2) The Seller had the full corporate power and authority to own the originate, hold and sell each Mortgage Loans and to transfer and convey the Mortgage Loans to the Purchaser Loan and has the full corporate power and authority to execute service each Mortgage Loan, and deliverto execute, engage in deliver and perform, and to enter into and consummate the transactions contemplated by, by this Agreement and perform and observe the terms and conditions of this Agreement;
(ii) The Seller has duly authorized by all necessary corporate action on the part of the Seller the execution, delivery and performance of this Agreement, ; this Agreement has been duly executed and delivered this Agreement, by the Seller and this Agreement, assuming the due authorization, execution and delivery thereof by the Purchaser, constitutes a legal, valid and binding obligation of the Seller, enforceable against it the Seller in accordance with its terms terms, except as to the extent that (a) the enforceability thereof may be limited by bankruptcy, insolvency or reorganization or by general principles insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally and (b) the remedy of equityspecific 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;
(iii3) The execution, execution and delivery and performance of this Agreement by the Seller, the servicing of the Mortgage Loans by the Seller (x) does not conflict under the Pooling and Servicing Agreement, 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 Seller and will not conflict with, does not breach and will not (A) result in a breach of and does not constitute and will not constitute a default (or an event, which with notice or lapse of time or both, would constitute a default) under (A) any terms or provisions of the organizational documents of the Seller, (B) any term or provision of the charter or by-laws of the Seller 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, contract, agreement or instrument or indenture, to which the Seller is a party or by which the Seller or any of its property is it may be bound, or (C) any lawstatute, rule, regulation, order, judgment, writ, injunction order or decree regulation applicable to the Seller of any court court, regulatory body, administrative agency or governmental authority body having jurisdiction over the Seller; and the Seller 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 Seller's knowledge, would in the future materially and adversely affect, (x) the ability of the Seller to perform its property and obligations under this Agreement or (y) does not create the business, operations, financial condition, properties or impose and will not result in the creation or imposition of any lien, charge or encumbrance (other than any created hereby in favor assets of the Purchaser and its assignees) which would have Seller taken as a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loanswhole;
(iv4) No consent, approval, authorization or order of, registration of any court or filing with, governmental agency or notice on behalf of the Seller to any governmental authority or court body is required, under federal laws or the laws of the State of New York, required for the execution, delivery and performance by the Seller of, or compliance by the Seller with, this Agreement or the consummation by of the transactions contemplated hereby, or if any such consent, approval, authorization or order is required, the Seller of any other transaction contemplated hereby and by has obtained the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificatessame;
(v5) The Seller is not an approved originator/servicer for Fannie Mae or Freddie Mxx xx gxxx staxxxxx xnd is a HUD approved mortgagee pursuant to Section 203 and Section 211 of the National Housing Act; and
(6) Except as otherwise disclosed in violation ofthe Prospectus Supplement, and the execution and delivery of this Agreement by no litigation is pending against the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over the Seller or its assets, which violation might have consequences that would materially and adversely affect the condition (financial or otherwise) or the operation of the Seller or its assets or might have consequences that would materially and adversely affect the performance of its obligations and duties hereunder;
(vi) The Seller 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) Immediately prior to the sale of the Mortgage Loans to the Purchaser as herein contemplated, the Seller was the owner of the related Mortgage and the indebtedness evidenced by the related Mortgage Note, and, upon the payment to the Seller of the Purchase Price, in the event that the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereof;
(viii) There are no actions or proceedings against, or investigations known to it of, the Seller before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans by the Seller or the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by the Seller of its obligations under, or validity or enforceability of, this Agreement;
(ix) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;
(x) The Seller has not dealt with any broker, investment banker, agent or other person, except for the Purchaser or any of its affiliates, that may be entitled to any commission or compensation in connection with the sale of the Mortgage Loans (except that an entity that previously financed the Seller’s ownership of the Mortgage Loans may be entitled to a fee to release its security interest in the Mortgage Loans, which fee shall have been paid and which security interest shall have been released on or prior to the Closing Date);
(xi) There is no litigation currently pending or, to the best of the Seller’s knowledge without independent investigation, threatened against the Seller that would reasonably be expected to adversely affect the transfer of the Mortgage Loans, the issuance of the Certificates or the execution, delivery, performance delivery or enforceability of this Agreement, Agreement or that would result in a material adverse change in the financial condition ability of the Seller; and
(xii) The information set forth in Seller to service the applicable part Mortgage Loans or the Seller to perform any of the Closing Schedule relating to the existence of a Prepayment Charge 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 its other obligations hereunder in accordance with its the terms upon the mortgagor’s full and voluntary principal prepayment under applicable law, 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; (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 under applicable lawhereof.
Appears in 1 contract
Representations, Warranties and Covenants of the Seller. (a) The Seller hereby represents makes, as of the Closing Date (or as of such other date specifically provided in the particular representation or warranty), to and warrants to for the benefit of the Purchaser, and its successors and assigns (including, without limitation, the Trustee and the holders of the Certificates), each of the representations and warranties set forth in Exhibit C, with such changes or modifications as may be permitted or required by the Rating Agencies.
(b) In addition, the Seller, as of the date hereof hereof, hereby represents and as of the Closing Datewarrants to, and covenantscovenants with, the Purchaser that:
(i) The Seller is a Delaware corporation corporation, duly organized, validly existing and in good standing under the laws of the State of Maryland, and is in compliance with full corporate power and authority to conduct its business as presently conducted by it the laws of each State in which any Mortgaged Property is located to the extent material necessary to ensure the consummation enforceability of the transactions contemplated herein. The Agreement has been duly authorized, executed and delivered by the Seller. The Seller had the full corporate power and authority to own the each Mortgage Loans Loan and to transfer and convey the Mortgage Loans to the Purchaser and has the full corporate power and authority to execute and deliver, engage in the transactions contemplated by, and perform and observe the terms and conditions of its obligations under this Agreement;.
(ii) The execution and delivery of this Agreement by the Seller, and the performance and compliance with the terms of this Agreement by the Seller, will not violate the Seller's organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets, in each case which materially and adversely affect the ability of the Seller to carry out the transactions contemplated by this Agreement.
(iii) The Seller has the full power and authority to enter into and consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement, and this .
(iv) This Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a legalvalid, valid legal and binding obligation of the Seller, enforceable against it the Seller in accordance with its the terms except as the enforceability thereof may be limited by hereof, subject to (A) applicable bankruptcy, insolvency or reorganization or by insolvency, reorganization, moratorium and other laws affecting the enforcement of creditors' rights generally, (B) general principles of equity;
, regardless of whether such enforcement is considered in a proceeding in equity or at law, and (iiiC) The executionpublic policy considerations underlying the securities laws, delivery and performance to the extent that such public policy considerations limit the enforceability of the provisions of this Agreement by the Seller (x) does not conflict and will not conflict with, does not breach and will not result in a breach of and does not constitute and will not constitute a default (or an event, which with notice or lapse of time or both, would constitute a default) under (A) any terms or provisions of the organizational documents of the Seller, (B) any term or provision of any material agreement, contract, instrument or indenture, that purport to which the Seller is a party or by which the Seller or any of its property is bound, or (C) any law, rule, regulation, order, judgment, writ, injunction or decree of any court or governmental authority having jurisdiction over the Seller or any of its property and (y) does not create or impose and will not result in the creation or imposition of any lien, charge or encumbrance (other than any created hereby in favor of the Purchaser and its assignees) which would have a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loans;
(iv) No consent, approval, authorization or order of, registration or filing with, or notice on behalf of the Seller to any governmental authority or court is required, under federal laws or the laws of the State of New York, provide indemnification for the execution, delivery and performance by the Seller of, or compliance by the Seller with, this Agreement or the consummation by the Seller of any other transaction contemplated hereby and by the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificates;liabilities.
(v) The Seller is not in violation of, and the its execution and delivery of this Agreement by the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect toof, any law, any order or decree of any court or arbiter, or any order order, regulation or regulation demand of any federal, state, municipal state or local governmental agency having jurisdiction over the Seller or its assetsregulatory authority, which violation might have consequences that would violation, in the Seller's good faith and reasonable judgment, is likely to affect materially and adversely affect either the condition (financial or otherwise) or the operation ability of the Seller or its assets or might have consequences that would materially and adversely affect the performance of to perform its obligations and duties hereunder;under this Agreement or the financial condition of the Seller.
(vi) The No litigation is pending with regard to which Seller does not believehas received service of process or, nor does it have any reason or cause to believe, that it cannot perform each and every covenant contained in this Agreement;
(vii) Immediately prior to the sale best of the Mortgage Loans to the Purchaser as herein contemplatedSeller's knowledge, threatened against the Seller was the owner outcome of the related Mortgage and the indebtedness evidenced by the related Mortgage Note, and, upon the payment to the Seller of the Purchase Pricewhich, in the event that Seller's good faith and reasonable judgment, could reasonably be expected to prohibit the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereof;
(viii) There are no actions or proceedings against, or investigations known to it of, the Seller before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans by the Seller or the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by ability of the Seller of to perform its obligations under, or validity or enforceability of, under this Agreement;.
(ix) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;
(xvii) The Seller has not dealt with any broker, investment banker, agent or other person, except for other than the Purchaser or any of its Purchaser, the Underwriters, the Initial Purchasers and their respective affiliates, that may be entitled to any commission or compensation in connection with the sale of the Mortgage Loans (except that an entity that previously financed or the Seller’s ownership consummation of any of the Mortgage Loans may be entitled to a fee to release other transactions contemplated hereby.
(viii) Neither the Seller nor anyone acting on its security behalf has (A) offered, pledged, sold, disposed of or otherwise transferred any Certificate, any interest in any Certificate or any other similar security to any person in any manner, (B) solicited any offer to buy or to accept a pledge, disposition or other transfer of any Certificate, any interest in any Certificate or any other similar security from any person in any manner, (C) otherwise approached or negotiated with respect to any Certificate, any interest in any Certificate or any other similar security with any person in any manner, (D) made any general solicitation by means of general advertising or in any other manner with respect to any Certificate, any interest in any Certificate or any similar security, or (E) taken any other action, that (in the Mortgage Loans, which fee shall have been paid and which security interest shall have been released on or prior to the Closing Date);
(xi) There is no litigation currently pending or, to the best case of any of the Seller’s knowledge without independent investigation, threatened against the Seller that acts described in clauses (A) through (E) above) would reasonably be expected to adversely affect the transfer constitute or result in a violation of the Mortgage Loans, Securities Act or any state securities law relating to or in connection with the issuance of the Certificates or require registration or qualification pursuant to the executionSecurities Act or any state securities law of any Certificate not otherwise intended to be a Registered Certificate. In addition, deliverythe Seller will not act, performance nor has it authorized or enforceability of this Agreementwill it authorize any person to act, or that would result in a material adverse change in the financial condition of the Seller; and
(xii) The information any manner set forth in the applicable part foregoing sentence with respect to any of the Closing Schedule relating Certificates or interests therein. For purposes of this paragraph 4(b)(viii), the term "similar security" shall be deemed to include, without limitation, any security evidencing or, upon issuance, that would have evidenced an interest in the Mortgage Loans or the Other Mortgage Loans or any substantial number thereof.
(ix) Insofar as it relates to the existence Mortgage Loans, the information set forth on pages A-10 through A-11, inclusive, of a Prepayment Charge Annex A to the Prospectus Supplement (as defined in Section 9) (the "Loan Detail") and, to the extent consistent therewith, the information set forth on the diskette attached to the Prospectus Supplement and the accompanying prospectus (the "Diskette"), is complete, true and correct in all material respects at respects. Insofar as it relates to the date Mortgage Loans and/or the Seller and does not represent a restatement or dates respecting which such aggregation of the information is furnished on the Loan Detail, the information set forth in the Prospectus Supplement and each Prepayment Charge is permissible the Memorandum (as defined in Section 9) under the headings "Summary of Series 2001-C1 Transaction--The Mortgage Pool," "--Geographic Concentrations of the Mortgaged Properties," "--Property Types," "--Prepayment or Call Protection Provided by the Mortgage Loans," "--Payment Terms of the Mortgage Loans," "Risk Factors" and enforceable in accordance with its terms upon "Description of the mortgagor’s full Mortgage Pool", set forth on Annex A to the Prospectus Supplement and voluntary principal prepayment under applicable law, except (to the extent that: (1it contains information consistent with that on such Annex A) set forth on the enforceability thereof may be limited by bankruptcyDiskette, insolvency, moratorium, receivership and other similar laws relating to creditors’ rights; (2) the collectability thereof may be limited due to acceleration in connection with does not contain any untrue statement of a foreclosure or other involuntary prepayment; material fact or (3in the case of the Memorandum, when read together with the other information specified therein as being available for review by investors) subsequent changes omit to state any material fact necessary to make the statements therein, in applicable law may limit or prohibit enforceability thereof light of the circumstances under applicable lawwhich they were made, not misleading.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Gmac Commercial Mortgage Securities Inc)
Representations, Warranties and Covenants of the Seller. (a) The Seller hereby represents and warrants to the Originator and the Purchaser, as of the date hereof and as of the Closing Date, and covenants, that:
(i) The Seller is duly organized, validly existing and in good standing as a Delaware corporation under the laws of the State of Maryland with full corporate power and authority to conduct its business as presently conducted by it to the extent material to the consummation of the transactions contemplated herein. The Agreement has been duly authorized, executed and delivered by the Seller. The Seller had the full corporate power and authority to own the Mortgage Loans and to transfer and convey the Mortgage Loans to the Purchaser and has the full corporate power and authority to execute and deliver, engage in the transactions contemplated by, and perform and observe the terms and conditions of this Agreement;.
(ii) The Seller has duly authorized the execution, delivery and performance of this Agreement, has duly executed and delivered this Agreement, and this Agreement, assuming due authorization, execution and delivery by the Originator and the Purchaser, constitutes a legal, valid and binding obligation of the Seller, enforceable against it in accordance with its terms except as the enforceability thereof may be limited by bankruptcy, insolvency or reorganization or by general principles of equity;.
(iii) The execution, delivery and performance of this Agreement by the Seller (x) does not conflict and will not conflict with, does not breach and will not result in a breach of and does not constitute and will not constitute a default (or an event, which with notice or lapse of time or both, would constitute a default) under (A) any terms or provisions of the organizational documents articles of incorporation or by-laws of the Seller, (B) any term or provision of any material agreement, contract, instrument or indenture, to which the Seller is a party or by which the Seller or any of its property is bound, or (C) any law, rule, regulation, order, judgment, writ, injunction or decree of any court or governmental authority having jurisdiction over the Seller or any of its property and (y) does not create or impose and will not result in the creation or imposition of any lien, charge or encumbrance (other than any created hereby in favor of the Purchaser and its assignees) which would have a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loans;.
(iv) No consent, approval, authorization or order of, registration or filing with, or notice on behalf of the Seller to any governmental authority or court is required, under federal laws or the laws of the State of New YorkCalifornia, for the execution, delivery and performance by the Seller of, or compliance by the Seller with, this Agreement or the consummation by the Seller of any other transaction contemplated hereby and by the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificates;.
(v) This Agreement does not contain any untrue statement of material fact or omit to state a material fact necessary to make the statements contained herein not misleading. The written statements, reports and other documents prepared and furnished or to be prepared and furnished by the Seller pursuant to this Agreement or in connection with the transactions contemplated hereby taken in the aggregate do not contain any untrue statement of material fact or omit to state a material fact necessary to make the statements contained therein not misleading.
(vi) The Seller is not in violation of, and the execution and delivery of this Agreement by the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over the Seller or its assets, which violation might have consequences that would materially and adversely affect the condition (financial or otherwise) or the operation of the Seller or its assets or might have consequences that would materially and adversely affect the performance of its obligations and duties hereunder;.
(vivii) The Seller 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;.
(viiviii) Immediately prior to the sale of the Mortgage Loans to the Purchaser as herein contemplated, the Seller was the owner of the related Mortgage and the indebtedness evidenced by the related Mortgage Note, and, upon the payment to the Seller of the Purchase Price, in the event that the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereof;.
(viiiix) There are no actions or proceedings against, or investigations known to it of, the Seller before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans by the Seller or the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by the Seller of its obligations under, or validity or enforceability of, this Agreement;.
(ixx) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;.
(xxi) [intentionally omitted]
(xii) The Seller has not dealt with any broker, investment banker, agent or other person, except for the Purchaser or any of its affiliates, that may be entitled to any commission or compensation in connection with the sale of the Mortgage Loans (except that an entity that previously financed the Seller’s 's ownership of the Mortgage Loans may be entitled to a fee to release its security interest in the Mortgage Loans, which fee shall have been paid and which security interest shall have been released on or prior to the Closing Date);.
(xixiii) There is no litigation currently pending or, to the best of the Seller’s 's knowledge without independent investigation, threatened against the Seller that would reasonably be expected to adversely affect the transfer of the Mortgage Loans, the issuance of the Certificates or the execution, delivery, performance or enforceability of this Agreement, or that would result in a material adverse change in the financial condition of the Seller.
(b) The Originator hereby represents and warrants to the Seller and the Purchaser, as of the date hereof and as of the Closing Date, and covenants, that:
(i) The Originator is duly organized, validly existing and in good standing as a corporation under the laws of the State of California with full corporate power and authority to conduct its business as presently conducted by it to the extent material to the consummation of the transactions contemplated herein. The Originator had the full corporate power and authority to own the Mortgage Loans and to transfer and convey the Mortgage Loans to the Seller and has the full corporate power and authority to execute and deliver, engage in the transactions contemplated by, and perform and observe the terms and conditions of this Agreement.
(ii) The Originator has duly authorized the execution, delivery and performance of this Agreement, has duly executed and delivered this Agreement, and this Agreement, assuming due authorization, execution and delivery by the Seller and the Purchaser, constitutes a legal, valid and binding obligation of the Originator, enforceable against it in accordance with its terms except as the enforceability thereof may be limited by bankruptcy, insolvency or reorganization or by general principles of equity.
(iii) The execution, delivery and performance of this Agreement by the Originator (x) does not conflict and will not conflict with, does not breach and will not result in a breach of and does not constitute and will not constitute a default (or an event, which with notice or lapse of time or both, would constitute a default) under (A) any terms or provisions of the articles of incorporation or by-laws of the Originator, (B) any term or provision of any material agreement, contract, instrument or indenture, to which the Originator is a party or by which the Originator or any of its property is bound, or (C) any law, rule, regulation, order, judgment, writ, injunction or decree of any court or governmental authority having jurisdiction over the Originator or any of its property and (y) does not create or impose and will not result in the creation or imposition of any lien, charge or encumbrance which would have a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loans.
(iv) No consent, approval, authorization or order of, registration or filing with, or notice on behalf of the Originator to any governmental authority or court is required, under federal laws or the laws of the State of California, for the execution, delivery and performance by the Originator of, or compliance by the Originator with, this Agreement or the consummation by the Originator of any other transaction contemplated hereby and by the Pooling and Servicing Agreement; provided, however, that the Originator makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificates.
(v) In this Agreement the Originator has not made any untrue statement of material fact or omit to state a material fact necessary to make the statements contained herein not misleading. The written statements, reports and other documents prepared and furnished or to be prepared and furnished by the Originator pursuant to this Agreement or in connection with the transactions contemplated hereby taken in the aggregate do not contain any untrue statement of material fact or omit to state a material fact necessary to make the statements contained therein not misleading.
(vi) The Originator is not in violation of, and the execution and delivery of this Agreement by the Originator and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over the Originator or its assets, which violation might have consequences that would materially and adversely affect the condition (financial or otherwise) or the operation of the Originator or its assets or might have consequences that would materially and adversely affect the performance of its obligations and duties hereunder.
(vii) The Originator 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.
(viii) Immediately prior to the sale of the Mortgage Loans to the Seller, the Originator was the owner of the related Mortgage and the indebtedness evidenced by the related Mortgage Note, and, upon the payment to the Originator of the Purchase Price, in the event that the Originator retains or has retained record title, the Originator shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Seller as the owner thereof from and after the date hereof.
(ix) There are no actions or proceedings against, or investigations known to it of, the Originator before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans by the Originator or the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by the Originator of its obligations under, or validity or enforceability of, this Agreement.
(x) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Originator, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Originator are not subject to the bulk transfer or any similar statutory provisions.
(xi) The Originator has not dealt with any broker, investment banker, agent or other person, except for the Seller or any of its affiliates, that may be entitled to any commission or compensation in connection with the sale of the Mortgage Loans (except that an entity that previously financed the Originator's ownership of the Mortgage Loans may be entitled to a fee to release its security interest in the Mortgage Loans, which fee shall have been paid and which security interest shall have been released on or prior to the Closing Date).
(xii) There is no litigation currently pending or, to the best of the Originator's knowledge without independent investigation, threatened against the Originator that would reasonably be expected to adversely affect the transfer of the Mortgage Loans, the issuance of the Certificates or the execution, delivery, performance or enforceability of this Agreement, or that would result in a material adverse change in the financial condition of the Originator.
(xiii) The information set forth in the applicable part of the Closing Mortgage Loan Schedule relating to the existence of a Prepayment Charge 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 upon the mortgagor’s full and voluntary principal prepayment under applicable law, (except to the extent that: (1) that the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ rights; (2) ' rights generally or the collectability thereof may be limited due to acceleration in connection with a foreclosure or other involuntary prepayment; or (3foreclosure) subsequent changes in under the applicable law may limit or prohibit enforceability thereof under applicable state law.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (New Century Home Equity Loan Trust Series 1999-NCC)
Representations, Warranties and Covenants of the Seller. (a) The Seller hereby represents makes, as of the Closing Date (or as of such other date specifically provided in the particular representation or warranty), to and warrants to for the benefit of the Purchaser, and its successors and assigns (including, without limitation, the Trustee and the holders of the Certificates), each of the representations and warranties set forth in Exhibit C, with such changes or modifications as may be permitted or required by the Rating Agencies.
(b) In addition, the Seller, as of the date hereof hereof, hereby represents and as of the Closing Datewarrants to, and covenantscovenants with, the Purchaser that:
(i) The Seller is a Delaware corporation corporation, duly organized, validly existing and in good standing under the laws of the State of Maryland, and is in compliance with full corporate power and authority to conduct its business as presently conducted by it the laws of each State in which any Mortgaged Property is located to the extent material necessary to ensure the consummation enforceability of the transactions contemplated herein. The Agreement has been duly authorized, executed and delivered by the Seller. The Seller had the full corporate power and authority to own the each Mortgage Loans Loan and to transfer and convey the Mortgage Loans to the Purchaser and has the full corporate power and authority to execute and deliver, engage in the transactions contemplated by, and perform and observe the terms and conditions of its obligations under this Agreement;.
(ii) The execution and delivery of this Agreement by the Seller, and the performance and compliance with the terms of this Agreement by the Seller, will not violate the Seller's organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets, in each case which materially and adversely affect the ability of the Seller to carry out the transactions contemplated by this Agreement.
(iii) The Seller has the full power and authority to enter into and consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement, and this .
(iv) This Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a legalvalid, valid legal and binding obligation of the Seller, enforceable against it the Seller in accordance with its the terms except as the enforceability thereof may be limited by hereof, subject to (A) applicable bankruptcy, insolvency or reorganization or by insolvency, reorganization, moratorium and other laws affecting the enforcement of creditors' rights generally, (B) general principles of equity;
, regardless of whether such enforcement is considered in a proceeding in equity or at law, and (iiiC) The executionpublic policy considerations underlying the securities laws, delivery and performance to the extent that such public policy considerations limit the enforceability of the provisions of this Agreement by the Seller (x) does not conflict and will not conflict with, does not breach and will not result in a breach of and does not constitute and will not constitute a default (or an event, which with notice or lapse of time or both, would constitute a default) under (A) any terms or provisions of the organizational documents of the Seller, (B) any term or provision of any material agreement, contract, instrument or indenture, that purport to which the Seller is a party or by which the Seller or any of its property is bound, or (C) any law, rule, regulation, order, judgment, writ, injunction or decree of any court or governmental authority having jurisdiction over the Seller or any of its property and (y) does not create or impose and will not result in the creation or imposition of any lien, charge or encumbrance (other than any created hereby in favor of the Purchaser and its assignees) which would have a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loans;
(iv) No consent, approval, authorization or order of, registration or filing with, or notice on behalf of the Seller to any governmental authority or court is required, under federal laws or the laws of the State of New York, provide indemnification for the execution, delivery and performance by the Seller of, or compliance by the Seller with, this Agreement or the consummation by the Seller of any other transaction contemplated hereby and by the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificates;liabilities.
(v) The Seller is not in violation of, and the its execution and delivery of this Agreement by the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect toof, any law, any order or decree of any court or arbiter, or any order order, regulation or regulation demand of any federal, state, municipal state or local governmental agency having jurisdiction over the Seller or its assetsregulatory authority, which violation might have consequences that would violation, in the Seller's good faith and reasonable judgment, is likely to affect materially and adversely affect either the condition (financial or otherwise) or the operation ability of the Seller or its assets or might have consequences that would materially and adversely affect the performance of to perform its obligations and duties hereunder;under this Agreement or the financial condition of the Seller.
(vi) The No litigation is pending with regard to which Seller does not believehas received service of process or, nor does it have any reason or cause to believe, that it cannot perform each and every covenant contained in this Agreement;
(vii) Immediately prior to the sale best of the Mortgage Loans to the Purchaser as herein contemplatedSeller's knowledge, threatened against the Seller was the owner outcome of the related Mortgage and the indebtedness evidenced by the related Mortgage Note, and, upon the payment to the Seller of the Purchase Pricewhich, in the event that Seller's good faith and reasonable judgment, could reasonably be expected to prohibit the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereof;
(viii) There are no actions or proceedings against, or investigations known to it of, the Seller before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans by the Seller or the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by ability of the Seller of to perform its obligations under, or validity or enforceability of, under this Agreement;.
(ix) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;
(xvii) The Seller has not dealt with any broker, investment banker, agent or other person, except for other than the Purchaser or any of its Purchaser, the Underwriters, the Initial Purchasers and their respective affiliates, that may be entitled to any commission or compensation in connection with the sale of the Mortgage Loans (except that an entity that previously financed or the Seller’s ownership consummation of any of the Mortgage Loans may be entitled to a fee to release other transactions contemplated hereby.
(viii) Neither the Seller nor anyone acting on its security behalf has (A) offered, pledged, sold, disposed of or otherwise transferred any Certificate, any interest in any Certificate or any other similar security to any person in any manner, (B) solicited any offer to buy or to accept a pledge, disposition or other transfer of any Certificate, any interest in any Certificate or any other similar security from any person in any manner, (C) otherwise approached or negotiated with respect to any Certificate, any interest in any Certificate or any other similar security with any person in any manner, (D) made any general solicitation by means of general advertising or in any other manner with respect to any Certificate, any interest in any Certificate or any similar security, or (E) taken any other action, that (in the Mortgage Loans, which fee shall have been paid and which security interest shall have been released on or prior to the Closing Date);
(xi) There is no litigation currently pending or, to the best case of any of the Seller’s knowledge without independent investigation, threatened against the Seller that acts described in clauses (A) through (E) above) would reasonably be expected to adversely affect the transfer constitute or result in a violation of the Mortgage Loans, Securities Act or any state securities law relating to or in connection with the issuance of the Certificates or require registration or qualification pursuant to the executionSecurities Act or any state securities law of any Certificate not otherwise intended to be a Registered Certificate. In addition, deliverythe Seller will not act, performance nor has it authorized or enforceability of this Agreementwill it authorize any person to act, or that would result in a material adverse change in the financial condition of the Seller; and
(xii) The information any manner set forth in the applicable part foregoing sentence with respect to any of the Closing Schedule relating Certificates or interests therein. For purposes of this paragraph 4(b)(viii), the term "similar security" shall be deemed to include, without limitation, any security evidencing or, upon issuance, that would have evidenced an interest in the Mortgage Loans or the Other Mortgage Loans or any substantial number thereof.
(ix) Insofar as it relates to the existence Mortgage Loans, the information set forth on pages A-9 through A-11, inclusive, of a Prepayment Charge Annex A to the Prospectus Supplement (as defined in Section 9) (the "Loan Detail") and, to the extent consistent therewith, the information set forth on the diskette attached to the Prospectus Supplement and the accompanying prospectus (the "Diskette"), is complete, true and correct in all material respects at respects. Insofar as it relates to the date Mortgage Loans and/or the Seller and does not represent a restatement or dates respecting which such aggregation of the information is furnished on the Loan Detail, the information set forth in the Prospectus Supplement and each Prepayment Charge is permissible the Memorandum (as defined in Section 9) under the headings "Summary of Series 2001-C2 Transaction--The Mortgage Pool," "--Geographic Concentrations of the Mortgaged Properties," "--Property Types," "--Prepayment or Call Protection Provided by the Mortgage Loans," "--Payment Terms of the Mortgage Loans," "Risk Factors" and enforceable in accordance with its terms upon "Description of the mortgagor’s full Mortgage Pool", set forth on Annex A to the Prospectus Supplement and voluntary principal prepayment under applicable law, except (to the extent that: (1it contains information consistent with that on such Annex A) set forth on the enforceability thereof may be limited by bankruptcyDiskette, insolvency, moratorium, receivership and other similar laws relating to creditors’ rights; (2) the collectability thereof may be limited due to acceleration in connection with does not contain any untrue statement of a foreclosure or other involuntary prepayment; material fact or (3in the case of the Memorandum, when read together with the other information specified therein as being available for review by investors) subsequent changes omit to state any material fact necessary to make the statements therein, in applicable law may limit or prohibit enforceability thereof light of the circumstances under applicable lawwhich they were made, not misleading.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Gmac Commercial Mortgage Securities Inc)
Representations, Warranties and Covenants of the Seller. The Seller hereby represents and warrants to the Purchaser, as of the date hereof and as of the Closing Date, and covenants, that:
(i) The Seller is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware corporation with full corporate power and authority is qualified and in good standing to conduct its do business in each jurisdiction where such qualification is necessary, except where the failure to so qualify would not reasonably be expected to have a material adverse effect on the Seller’s business as presently conducted by it or on the Seller’s ability to the extent material enter into this Agreement and to the consummation of consummate the transactions contemplated herein. The Agreement has been duly authorized, executed and delivered by the Seller. The Seller had the full corporate power and authority to own the Mortgage Loans and to transfer and convey the Mortgage Loans to the Purchaser and has the full corporate power and authority to execute and deliver, engage in the transactions contemplated by, and perform and observe the terms and conditions of this Agreement;hereby.
(ii) The Seller has duly authorized the execution, delivery and performance of this Agreement, has duly executed and delivered this Agreement, and this Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a legal, valid and binding obligation of the Seller, enforceable against it in accordance with its terms except as the enforceability thereof may be limited by bankruptcy, insolvency or reorganization or by general principles of equity;.
(iii) The execution, delivery and performance of this Agreement by the Seller (x) does not conflict and will not conflict with, does not breach and will not result in a breach of and does not constitute and will not constitute a default (or an event, which with notice or lapse of time or both, would constitute a default) under (A) any terms or provisions of the organizational documents of the Seller, (B) any term or provision of any material agreement, contract, instrument or indenture, to which the Seller is a party or by which the Seller or any of its property is bound, or (C) any law, rule, regulation, order, judgment, writ, injunction or decree of any court or governmental authority having jurisdiction over the Seller or any of its property property, and (y) does not create or impose and will not result in the creation or imposition of any lien, charge or encumbrance (other than any created hereby in favor of the Purchaser and its assignees) which would have a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loans;.
(iv) No consent, approval, authorization or order of, registration or filing with, or notice on behalf of the Seller to to, any governmental authority or court is required, required under federal laws or the laws of the State of New York, York for the execution, delivery and performance by the Seller of, or and compliance by the Seller with, this Agreement or the consummation by the Seller of any other transaction contemplated hereby and by the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificates;.
(v) This Agreement does not contain any untrue statement of material fact or omit to state a material fact necessary to make the statements contained herein not misleading. The written statements, reports and other documents prepared and furnished or to be prepared and furnished by the Seller pursuant to this Agreement or in connection with the transactions contemplated hereby taken in the aggregate do not contain any untrue statement of material fact or omit to state a material fact necessary to make the statements contained therein not misleading.
(vi) The Seller is not in violation of, and the execution and delivery of this Agreement by the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over the Seller or its assets, assets which violation might have consequences that would materially and adversely affect the condition (financial or otherwise) or the operation of the Seller or its assets or might have consequences that would materially and adversely affect the performance of its obligations and duties hereunder;.
(vivii) The Seller 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;.
(viiviii) Immediately prior to the sale of the Mortgage Loans to the Purchaser as herein contemplated, the Seller was the owner of the related Mortgage and the indebtedness evidenced by the related Mortgage Note, and, upon the payment to the Seller of the Purchase Price, in the event that the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereof;.
(viiiix) There are no actions or proceedings against, or investigations known to it of, the Seller before any court, administrative or other tribunal (A) that might prohibit its it from entering into this Agreement, (B) seeking to prevent the sale of any of the Mortgage Loans by the Seller or the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by the Seller of its obligations under, or the validity or enforceability of, this Agreement;.
(ixx) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;.
(xxi) The Seller has not dealt with any broker, investment banker, agent or other person, except for the Purchaser or any of its affiliates, that may be entitled to any commission or compensation in connection with the sale of the Mortgage Loans (except that an entity that previously financed the Seller’s ownership of the Mortgage Loans may be entitled to a fee to release its security interest in the Mortgage Loans, which fee shall have been paid and which security interest shall have been released on or prior to the Closing Date);.
(xixii) There is no litigation currently pending or, to the best of the Seller’s knowledge without independent investigation, threatened against the Seller that would reasonably be expected to adversely affect the transfer of the Mortgage Loans, the issuance of the Certificates or the execution, delivery, performance or enforceability of this Agreement, or that would result in a material adverse change in the financial condition of the Seller; and.
(xiixiii) The information set forth in the applicable part of the Closing Mortgage Loan Schedule relating to the existence of a Prepayment Charge is complete, true and correct in all material respects at as of the date or dates respecting on which such information is furnished and each Prepayment Charge was originated in compliance with all applicable federal, state and local laws and is permissible and enforceable in accordance with its terms upon under the mortgagor’s full and voluntary principal prepayment under applicable law, state law (except to the extent that: (1) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ rightsrights generally; (2) the collectability collectibility thereof may be limited due to acceleration in connection with a foreclosure or other involuntary prepaymentforeclosure; or (3) subsequent changes in applicable law may limit or prohibit enforceability thereof under applicable lawthereof).
(xiv) The Seller is a HUD approved mortgagee pursuant to Section 203 of the National Housing Act.
Appears in 1 contract
Representations, Warranties and Covenants of the Seller. The Seller hereby makes to and for the benefit of the Insurer each of the representations, warranties and covenants made by the Seller in the Basic Documents to which it is a party, including, but not limited to, Section 2.11 and 7.01 of the Agreement. Such representations, warranties and covenants are incorporated herein by this reference as if fully set forth herein, and may not be amended except by an amendment complying with the terms of the last sentence of Section 6.1. In addition, the Seller represents and warrants to the Purchaser, as of the date hereof and as of the Closing Date, and covenants, thatDate as follows:
(ia) The Seller is a Delaware corporation with full corporate power offer and authority to conduct its business as presently conducted by it to the extent material to the consummation sale of the transactions contemplated hereinNotes by the Issuer complies in all material respects with all requirements of law, including all registration requirements of applicable securities laws.
(b) The Indenture is not required to be qualified under the Trust Indenture Act of 1939, as amended. The Agreement has been duly authorized, executed and delivered Issuer is not required to be registered as an “investment company” under the Investment Company Act. Neither the offer nor the sale of the Notes by the Seller. The Seller had the full corporate power and authority to own the Mortgage Loans and to transfer and convey the Mortgage Loans to the Purchaser and has the full corporate power and authority to execute and deliver, engage Issuer will be in the transactions contemplated by, and perform and observe the terms and conditions of this Agreement;
(ii) The Seller has duly authorized the execution, delivery and performance of this Agreement, has duly executed and delivered this Agreement, and this Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a legal, valid and binding obligation violation of the Seller, enforceable against it in accordance with its terms except as the enforceability thereof may be limited by bankruptcy, insolvency or reorganization or by general principles of equity;
(iii) The execution, delivery and performance of this Agreement by the Seller (x) does not conflict and will not conflict with, does not breach and will not result in a breach of and does not constitute and will not constitute a default (or an event, which with notice or lapse of time or both, would constitute a default) under (A) any terms or provisions of the organizational documents of the Seller, (B) any term or provision of any material agreement, contract, instrument or indenture, to which the Seller is a party or by which the Seller Securities Act or any of its property is bound, or (C) any law, rule, regulation, order, judgment, writ, injunction or decree of any court or governmental authority having jurisdiction over the Seller or any of its property and (y) does not create or impose and will not result in the creation or imposition of any lien, charge or encumbrance (other than any created hereby in favor of the Purchaser and its assignees) which would have a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loans;
(iv) No consent, approval, authorization or order of, registration or filing with, or notice on behalf of the Seller to any governmental authority or court is required, under federal laws or the laws of the State of New York, for the execution, delivery and performance by the Seller of, or compliance by the Seller with, this Agreement or the consummation by the Seller of any other transaction contemplated hereby and by the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution law. The Seller will satisfy any of the Certificates;information reporting requirements of the Securities Exchange Act arising out of the Transaction to which it is subject.
(vc) The Seller is not in violation of, and the execution and delivery of this Agreement by the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order information or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over the Seller or its assets, which violation might have consequences that would materially and adversely affect the condition (financial or otherwise) or the operation of the Seller or its assets or might have consequences that would materially and adversely affect the performance of its obligations and duties hereunder;
(vi) The Seller does not believe, nor does it have any reason or cause to believe, that it cannot perform each and every covenant statements contained in this Agreement;
(vii) Immediately prior the Documents furnished to the sale of the Mortgage Loans to the Purchaser as herein contemplated, the Seller was the owner of the related Mortgage and the indebtedness evidenced Insurer by the related Mortgage Note, and, upon the payment to the Seller of the Purchase Price, in the event that the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereof;
(viii) There are no actions or proceedings against, or investigations known to it of, the Seller before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans by the Seller or the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by the Seller of its obligations under, or validity or enforceability of, this Agreement;
(ix) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transferas amended, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to the bulk transfer supplemented or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;
(x) The Seller has not dealt with any broker, investment banker, agent or other person, except for the Purchaser or any of its affiliates, that may be entitled to any commission or compensation in connection with the sale of the Mortgage Loans (except that an entity that previously financed the Seller’s ownership of the Mortgage Loans may be entitled to a fee to release its security interest in the Mortgage Loans, which fee shall have been paid and which security interest shall have been released superseded on or prior to the Closing Date);date hereof, taken as a whole, does not, if restated at and as of the date hereof, contain any statement of a material fact or omit to state a material fact necessary to make such information or statements misleading in any material respect.
(xid) There The Seller is no litigation currently pending orsolvent and will not be rendered insolvent by the Transaction and, after giving effect to the best Transaction, the Seller will not be left with an unreasonably small amount of capital with which to engage in its business, and the Seller does not intend to incur, nor believes that it has incurred, debts beyond its ability to pay as they mature. The Seller does not contemplate the commencement of insolvency, liquidation or consolidation proceedings or the appointment of a receiver, liquidator, conservator, trustee or similar official with respect to it or any of its assets.
(e) The principal place of business of the Seller’s knowledge without independent investigationSeller is Ripon, threatened against the Seller that would reasonably be expected to adversely affect the transfer of the Mortgage Loans, the issuance of the Certificates or the execution, delivery, performance or enforceability of this Agreement, or that would result in a material adverse change in the financial condition of the Seller; and
(xii) The information set forth in the applicable part of the Closing Schedule relating Wisconsin and its books and records with respect to the existence of a Prepayment Charge is completeLoans are located at Wilmington, true Delaware, Ripon, Wisconsin 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 upon the mortgagor’s full and voluntary principal prepayment under applicable lawChicago, 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; (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 under applicable lawIllinois.
Appears in 1 contract
Samples: Insurance and Indemnity Agreement (Alliance Laundry Systems LLC)
Representations, Warranties and Covenants of the Seller. The In order to induce the Depositor to enter into this Agreement, the Seller hereby represents represents, warrants and warrants covenants to the PurchaserDepositor, and any assignee of the Depositor, that as of the date hereof and as of the Closing Date, and covenants, that:Date (or such other date specifically provided herein):
(i) The Seller is duly incorporated and validly existing as a Delaware corporation [national banking association] [federal savings bank] in good standing under the laws of the United States with full corporate power and authority to conduct carry on its business as presently conducted by it to the extent material to the consummation of the transactions contemplated herein. The Agreement has been duly authorized, executed and delivered by the Sellerit. The Seller had the full corporate power and authority and legal right to originate or acquire the Mortgage Loans. The Seller has the full power and authority and legal right to own the Mortgage Loans and to transfer and convey the Mortgage Loans to the Purchaser Depositor and has the full corporate power and authority and legal right to execute and deliver, engage in the transactions contemplated by, and perform and observe the terms and conditions of of, this Agreement;.
(ii) The Seller This Agreement has been duly authorized and validly authorized, executed and delivered by the Seller, all requisite corporate action has been or will have been taken, and (assuming the due authorization, execution and delivery hereof by the Depositor) constitutes or will constitute the valid, legal and binding agreements of the Seller, enforceable in accordance with its terms, except as such enforcement may be limited by (i) laws relating to bankruptcy, insolvency, reorganization, receivership or moratorium, (ii) other laws relating to or affecting the rights of creditors generally and by general principles of equity or the rights of creditors of banking institutions the accounts of which are insured by the Federal Deposit Insurance Corporation or any other instrumentality of the federal government (regardless of whether such enforcement is considered in a proceeding in equity or at law) or (iii) public policy considerations underlying the securities laws, to the extent that such public policy considerations limit the enforceability of the provisions of this Agreement which purport to provide indemnification from liabilities under applicable securities laws.
(iii) Either (a) no consent, approval, authorization or order of, registration or filing with, or notice to, any governmental authority or court is required, under federal or state laws, for the execution, delivery and performance of this Agreement, has duly executed and delivered this Agreement, and this Agreement, assuming due authorization, execution and delivery or compliance by the PurchaserSeller with this Agreement or the consummation by the Seller of any other transaction contemplated hereby or (b) such consent, constitutes a legalapproval, valid and binding obligation authorization or order has been obtained, or such registration, filing or notice has been made.
(iv) Neither the transfer of the SellerMortgage Loans to the Depositor, enforceable against it in accordance with its terms except as nor the enforceability thereof may be limited by bankruptcy, insolvency or reorganization or by general principles of equity;
(iii) The execution, delivery and or performance of this Agreement by the Seller (x) does not conflict and Seller, conflicts or will not conflict with, does not breach and or results or will not result in a breach of and does not constitute and of, or constitutes or will not constitute a default (or an event, which with notice or lapse of time or both, would constitute a default) under (Aa) any terms term or provisions provision of the organizational documents of governing the Seller's organization, or (Bb) any term or provision of any material agreement, contract, instrument or indenture, to which the Seller is a party or by which the Seller or any of its property is bound, or (Cc) any law, rule, regulation, order, judgment, writ, injunction or decree of any court or governmental authority having jurisdiction over the Seller Seller, or any of its property and (y) does not create results or impose and will not result in the creation or imposition of any lien, charge or encumbrance (other than which, in any created hereby in favor of the Purchaser and its assignees) which foregoing cases, would have a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loans;
(iv) No consent, approval, authorization or order of, registration or filing with, or notice on behalf of the Seller to any governmental authority or court is required, under federal laws or the laws of the State of New York, for the execution, delivery and performance by the Seller of, or compliance by the Seller with, this Agreement or the consummation by the Seller of any other transaction contemplated hereby and by the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificates;.
(v) The Seller is not in violation of, and the execution and delivery of this Agreement by the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over the Seller or its assets, which violation might have consequences that would materially and adversely affect the condition (financial or otherwise) or the operation of the Seller or its assets or might have consequences that would materially and adversely affect the performance of its obligations and duties hereunder;
(vi) The Seller 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) Immediately prior to the sale of the Mortgage Loans to the Purchaser as herein contemplated, the Seller was the owner of the related Mortgage and the indebtedness evidenced by the related Mortgage Note, and, upon the payment to the Seller of the Purchase Price, in the event that the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereof;
(viii) There are no actions or proceedings against, or investigations known to it of, the Seller pending or, to the Seller's knowledge, threatened against the Seller before any court, administrative agency or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans by the Seller or the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by the Seller of its obligations under, or validity or enforceability of, this Agreement;
(ix) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;
(x) The Seller has not dealt with any broker, investment banker, agent or other person, except for the Purchaser or any of its affiliates, that may be entitled to any commission or compensation in connection with the sale of the Mortgage Loans (except that an entity that previously financed the Seller’s ownership of the Mortgage Loans may be entitled to a fee to release its security interest in the Mortgage Loanstribunal, which fee shall have been paid and which security interest shall have been released on or prior to the Closing Date);
(xi) There is no litigation currently pending or, to the best of the Seller’s knowledge without independent investigation, threatened against the Seller that would reasonably be expected to adversely affect the transfer of the Mortgage Loans, the issuance of the Certificates or Certificates, the execution, delivery, performance delivery or enforceability of this Agreement, Agreement or that would result in have a material adverse change in effect on the financial condition of the Seller; and.
(xiivi) The information set forth on the Mortgage Loan Schedule with respect to each Mortgage Loan was true and correct as of the Cut-off Date.
(vii) The Seller represents and warrants that each of the representations and warranties contained in the applicable part Exhibit 2 hereto is true and correct and will be true and correct as of the Closing Schedule relating Date.
(viii) The Seller covenants to (a) provide in a timely manner all of the existence information regarding itself and the Mortgage Loans as the Depositor may reasonably request in connection with the preparation of a Prepayment Charge is completethe Prospectus Supplement, true (b) fully cooperate with, and correct in supply all material respects at information requested by the date or dates respecting which such information is furnished and each Prepayment Charge is permissible and enforceable in accordance with its terms upon the mortgagor’s full and voluntary principal prepayment under applicable law, except Rating Agencies to the extent that: practicable, and (1c) the enforceability thereof dedicate adequate personnel and resources as may be limited by bankruptcyrequired to comply with all of the terms and conditions of this Agreement.
(ix) As of the date of the Prospectus Supplement and as of the Closing Date, insolvencythe information contained in the Prospectus Supplement with respect to the Seller's Information (as defined in Section 9(a)) will be true and accurate and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, moratoriumin light of the circumstances in which they are made, receivership and other similar laws relating to creditors’ rights; not misleading.
(2x) the collectability thereof may be limited due to acceleration Other than in connection with a foreclosure solicitations or other involuntary prepayment; or (3) subsequent changes in applicable law may limit or prohibit enforceability thereof under applicable lawpromotions directed at the general public, the Seller agrees that it will not solicit the mortgagor with respect to any Mortgage Loan for the purpose of refinancing such Mortgage Loan.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Ba Mortgage Securities Mortgage Pass Through Cert Ser 1997 1)
Representations, Warranties and Covenants of the Seller. (a) The Seller hereby represents makes, as of the Closing Date (or as of such other date specifically provided in the particular representation or warranty), to and warrants to for the benefit of the Purchaser, and its successors and assigns (including, without limitation, the Trustee and the holders of the Certificates), each of the representations and warranties set forth in Exhibit C, with such changes or modifications as may be permitted or required by the Rating Agencies.
(b) In addition, the Seller, as of the date hereof hereof, hereby represents and as of the Closing Datewarrants to, and covenantscovenants with, the Purchaser that:
(i) The Seller is a Delaware corporation corporation, duly organized, validly existing and in good standing under the laws of the State of California, and is in compliance with full corporate power and authority to conduct its business as presently conducted by it the laws of each State in which any Mortgaged Property is located to the extent material necessary to ensure the consummation enforceability of the transactions contemplated herein. The Agreement has been duly authorized, executed and delivered by the Seller. The Seller had the full corporate power and authority to own the each Mortgage Loans Loan and to transfer and convey the Mortgage Loans to the Purchaser and has the full corporate power and authority to execute and deliver, engage in the transactions contemplated by, and perform and observe the terms and conditions of its obligations under this Agreement;.
(ii) The execution and delivery of this Agreement by the Seller, and the performance and compliance with the terms of this Agreement by the Seller, will not violate the Seller's organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets, in each case which materially and adversely affect the ability of the Seller to carry out the transactions contemplated by this Agreement.
(iii) The Seller has the full power and authority to enter into and consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement, and this .
(iv) This Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a legalvalid, valid legal and binding obligation of the Seller, enforceable against it the Seller in accordance with its the terms except as the enforceability thereof may be limited by hereof, subject to (A) applicable bankruptcy, insolvency or reorganization or by insolvency, reorganization, moratorium and other laws affecting the enforcement of creditors' rights generally, (B) general principles of equity;
, regardless of whether such enforcement is considered in a proceeding in equity or at law, and (iiiC) The executionpublic policy considerations underlying the securities laws, delivery and performance to the extent that such public policy considerations limit the enforceability of the provisions of this Agreement by the Seller (x) does not conflict and will not conflict with, does not breach and will not result in a breach of and does not constitute and will not constitute a default (or an event, which with notice or lapse of time or both, would constitute a default) under (A) any terms or provisions of the organizational documents of the Seller, (B) any term or provision of any material agreement, contract, instrument or indenture, that purport to which the Seller is a party or by which the Seller or any of its property is bound, or (C) any law, rule, regulation, order, judgment, writ, injunction or decree of any court or governmental authority having jurisdiction over the Seller or any of its property and (y) does not create or impose and will not result in the creation or imposition of any lien, charge or encumbrance (other than any created hereby in favor of the Purchaser and its assignees) which would have a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loans;
(iv) No consent, approval, authorization or order of, registration or filing with, or notice on behalf of the Seller to any governmental authority or court is required, under federal laws or the laws of the State of New York, provide indemnification for the execution, delivery and performance by the Seller of, or compliance by the Seller with, this Agreement or the consummation by the Seller of any other transaction contemplated hereby and by the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificates;liabilities.
(v) The Seller is not in violation of, and the its execution and delivery of this Agreement by the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect toof, any law, any order or decree of any court or arbiter, or any order order, regulation or regulation demand of any federal, state, municipal state or local governmental agency having jurisdiction over the Seller or its assetsregulatory authority, which violation might have consequences that would violation, in the Seller's good faith and reasonable judgment, is likely to affect materially and adversely affect either the condition (financial or otherwise) or the operation ability of the Seller or its assets or might have consequences that would materially and adversely affect the performance of to perform its obligations and duties hereunder;under this Agreement or the financial condition of the Seller.
(vi) The No litigation is pending with regard to which Seller does not believehas received service of process or, nor does it have any reason or cause to believe, that it cannot perform each and every covenant contained in this Agreement;
(vii) Immediately prior to the sale best of the Mortgage Loans to the Purchaser as herein contemplatedSeller's knowledge, threatened against the Seller was the owner outcome of the related Mortgage and the indebtedness evidenced by the related Mortgage Note, and, upon the payment to the Seller of the Purchase Pricewhich, in the event that Seller's good faith and reasonable judgment, could reasonably be expected to prohibit the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereof;
(viii) There are no actions or proceedings against, or investigations known to it of, the Seller before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans by the Seller or the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by ability of the Seller of to perform its obligations under, or validity or enforceability of, under this Agreement;.
(ix) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;
(xvii) The Seller has not dealt with any broker, investment banker, agent or other person, except for other than the Purchaser or any of its Purchaser, the Underwriters, the Initial Purchasers and their respective affiliates, that may be entitled to any commission or compensation in connection with the sale of the Mortgage Loans (except that an entity that previously financed or the Seller’s ownership consummation of any of the Mortgage Loans may be entitled to a fee to release other transactions contemplated hereby.
(viii) Neither the Seller nor anyone acting on its security behalf has (A) offered, pledged, sold, disposed of or otherwise transferred any Certificate, any interest in any Certificate or any other similar security to any person in any manner, (B) solicited any offer to buy or to accept a pledge, disposition or other transfer of any Certificate, any interest in any Certificate or any other similar security from any person in any manner, (C) otherwise approached or negotiated with respect to any Certificate, any interest in any Certificate or any other similar security with any person in any manner, (D) made any general solicitation by means of general advertising or in any other manner with respect to any Certificate, any interest in any Certificate or any similar security, or (E) taken any other action, that (in the Mortgage Loans, which fee shall have been paid and which security interest shall have been released on or prior to the Closing Date);
(xi) There is no litigation currently pending or, to the best case of any of the Seller’s knowledge without independent investigation, threatened against the Seller that acts described in clauses (A) through (E) above) would reasonably be expected to adversely affect the transfer constitute or result in a violation of the Mortgage Loans, Securities Act or any state securities law relating to or in connection with the issuance of the Certificates or require registration or qualification pursuant to the executionSecurities Act or any state securities law of any Certificate not otherwise intended to be a Registered Certificate. In addition, deliverythe Seller will not act, performance nor has it authorized or enforceability of this Agreementwill it authorize any person to act, or that would result in a material adverse change in the financial condition of the Seller; and
(xii) The information any manner set forth in the applicable part foregoing sentence with respect to any of the Closing Schedule relating Certificates or interests therein. For purposes of this paragraph 4(b)(viii), the term "similar security" shall be deemed to include, without limitation, any security evidencing or, upon issuance, that would have evidenced an interest in the Mortgage Loans or the Other Mortgage Loans or any substantial number thereof.
(ix) Insofar as it relates to the existence Mortgage Loans and the Other Mortgage Loans, the information set forth on pages A-7 through A-9, inclusive, of a Prepayment Charge Annex A to the Prospectus Supplement (as defined in Section 9) (the "Loan Detail") and, to the extent consistent therewith, the information set forth on the diskette attached to the Prospectus Supplement and the accompanying prospectus (the "Diskette"), is complete, true and correct in all material respects at respects. Insofar as it relates to the date or dates respecting which such Mortgage Loans and the Other Mortgage Loans and/or the Seller and does not represent a restatement of the information is furnished on the Loan Detail, the information set forth in the Prospectus Supplement and each Prepayment Charge is permissible the Memorandum (as defined in Section 9) under the headings "Summary--The Mortgage Pool", "Risk Factors" and enforceable in accordance with its terms upon "Description of the mortgagor’s full Mortgage Pool", set forth on Annex A to the Prospectus Supplement and voluntary principal prepayment under applicable law, except (to the extent that: (1it contains information consistent with that on such Annex A) set forth on the enforceability thereof may be limited by bankruptcyDiskette, insolvency, moratorium, receivership and other similar laws relating to creditors’ rights; (2) the collectability thereof may be limited due to acceleration in connection with does not contain any untrue statement of a foreclosure or other involuntary prepayment; material fact or (3in the case of the Memorandum, when read together with the other information specified therein as being available for review by investors) subsequent changes omit to state any material fact necessary to make the statements therein, in applicable law may limit or prohibit enforceability thereof light of the circumstances under applicable lawwhich they were made, not misleading.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Gmac Commercial Mortgage Securities Inc)
Representations, Warranties and Covenants of the Seller. (a) The Seller hereby represents and warrants to the Purchasermakes, as of the date hereof (or as of such other date specifically provided in the particular representation or warranty), to and for the benefit of the Purchaser, the Trustee on behalf of the Certificateholders and the respective successors-in-interest of the Purchaser and the Trustee, each of the representations and warranties set forth in Exhibit C with respect to each Mortgage Loan, subject to the exceptions set forth in Schedule C-1 to Exhibit C.
(b) In addition, the Seller, as of the Closing Datedate hereof, hereby represents and warrants to, and covenantscovenants with, the Purchaser that:
(i) The Seller is a corporation, duly organized, validly existing and in good standing under the laws of the State of Delaware corporation and is in compliance with full corporate power and authority to conduct its business as presently conducted by it the laws of each State in which any Mortgaged Property is located to the extent material necessary to ensure the consummation enforceability of the transactions contemplated herein. The Agreement has been duly authorized, executed and delivered by the Seller. The Seller had the full corporate power and authority to own the each Mortgage Loans Loan and to transfer and convey the Mortgage Loans to the Purchaser and has the full corporate power and authority to execute and deliver, engage in the transactions contemplated by, and perform and observe the terms and conditions of its obligations under this Agreement;.
(ii) The execution and delivery of this Agreement by the Seller, and the performance of, and compliance with, the terms of this Agreement by the Seller, do not violate the Seller's organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets, in each case which materially and adversely affects the ability of the Seller to carry out the transactions contemplated by this Agreement.
(iii) The Seller has the full power and authority to enter into and consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement, and this .
(iv) This Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a legalvalid, valid legal and binding obligation of the Seller, enforceable against it the Seller in accordance with its the terms except as the enforceability thereof may be limited by hereof, subject to (A) applicable bankruptcy, insolvency or reorganization or by insolvency, reorganization, receivership, moratorium and other laws affecting the enforcement of creditors' rights generally, (B) general principles of equity;
, regardless of whether such enforcement is considered in a proceeding in equity or at law, and (iiiC) The executionpublic policy considerations underlying the securities laws, delivery and performance to the extent that such public policy considerations limit the enforceability of the provisions of this Agreement by the Seller (x) does not conflict and will not conflict with, does not breach and will not result in a breach of and does not constitute and will not constitute a default (that purport to provide indemnification or an event, which with notice or lapse of time or both, would constitute a default) under (A) any terms or provisions of the organizational documents of the Seller, (B) any term or provision of any material agreement, contract, instrument or indenture, to which the Seller is a party or by which the Seller or any of its property is bound, or (C) any law, rule, regulation, order, judgment, writ, injunction or decree of any court or governmental authority having jurisdiction over the Seller or any of its property and (y) does not create or impose and will not result in the creation or imposition of any lien, charge or encumbrance (other than any created hereby in favor of the Purchaser and its assignees) which would have a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loans;
(iv) No consent, approval, authorization or order of, registration or filing with, or notice on behalf of the Seller to any governmental authority or court is required, under federal laws or the laws of the State of New York, contribution for the execution, delivery and performance by the Seller of, or compliance by the Seller with, this Agreement or the consummation by the Seller of any other transaction contemplated hereby and by the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificates;liabilities.
(v) The Seller is not in violation of, and the its execution and delivery of this Agreement by the Seller and its performance of, and compliance with with, the terms of this Agreement will do not constitute a violation with respect toof, any law, any judgment, order or decree of any court or arbiter, or any order order, regulation or regulation demand of any federal, statestate or local governmental or regulatory authority, municipal or governmental agency having jurisdiction over which violation, in the Seller's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Seller to perform its obligations under this Agreement or its assetsthe financial condition of the Seller.
(vi) No litigation is pending or, which violation might have consequences that would to the best of the Seller's knowledge, threatened against the Seller the outcome of which, in the Seller's good faith and reasonable judgment, is likely to materially and adversely affect the condition (financial or otherwise) or the operation ability of the Seller or its assets or might have consequences that would materially and adversely affect the performance of to perform its obligations and duties hereunder;
(vi) The Seller does not believe, nor does it have any reason under this Agreement or cause to believe, that it cannot perform each and every covenant contained in this Agreement;the financial condition of the Seller.
(vii) Immediately prior to the sale of the Mortgage Loans to the Purchaser as herein contemplated, the Seller was the owner of the related Mortgage and the indebtedness evidenced by the related Mortgage Note, and, upon the payment to the Seller of the Purchase Price, in the event that the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereof;
(viii) There are no actions or proceedings against, or investigations known to it of, the Seller before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans by the Seller or the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by the Seller of its obligations under, or validity or enforceability of, this Agreement;
(ix) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;
(x) The Seller has not dealt with any broker, investment banker, agent or other person, except for other than the Purchaser or any of its Purchaser, the Underwriters, the Initial Purchasers, and their respective affiliates, that may be entitled to any commission or compensation in connection with the sale of the Mortgage Loans (except that an entity that previously financed or the Seller’s ownership consummation of any of the Mortgage Loans may be entitled to a fee to release its security interest in the Mortgage Loans, which fee shall have been paid and which security interest shall have been released on or prior to the Closing Date);other transactions contemplated hereby.
(xiviii) There is no litigation currently pending or, Insofar as it relates to the best of the Seller’s knowledge without independent investigation, threatened against the Seller that would reasonably be expected to adversely affect the transfer of the Mortgage Loans, the issuance of the Certificates or the execution, delivery, performance or enforceability of this Agreement, or that would result in a material adverse change in the financial condition of the Seller; and
(xii) The information set forth in the applicable part of the Closing Schedule relating Annex A-1 and Annex A-2 to the existence of a Prepayment Charge Prospectus Supplement (as defined in the Artesia Indemnification Agreement) (the "Loan Detail") and, to the extent consistent therewith, the information set forth on the diskette attached to the Prospectus Supplement and the accompanying prospectus (the "Diskette"), is complete, true and correct in all material respects at respects. Insofar as it relates to the date description of the Mortgage Loans and/or the Seller and does not represent a restatement or dates respecting which such aggregation of the information on the Loan Detail, the information set forth in the Time of Sale Information (as defined in the Artesia Indemnification Agreement), the Memorandum (as defined in the Artesia Indemnification Agreement) (insofar as the Prospectus Supplement is furnished an exhibit thereto) and each Prepayment Charge is permissible in the Prospectus Supplement under the headings "Summary of the Prospectus Supplement--Relevant Parties and enforceable in accordance with its terms upon Dates--Sponsors," "--Mortgage Loan Sellers," "--Originators," "--The Mortgage Pool," "Risk Factors--Risks Related to the mortgagor’s full Mortgage Loans," "Transaction Parties--The Sponsors" and voluntary principal prepayment under applicable law"Description of the Mortgage Pool" and the information set forth on Annex A-1 and Annex A-2 and Annex B to the Prospectus Supplement, except and to the extent that: it contains information consistent with that on such Annex A-1 and Annex A-2 set forth on the Diskette, does not (or, in the case of the Time of Sale Information, did not as of the Time of Sale (as defined in the Artesia Indemnification Agreement)) contain any untrue statement of a material fact or (in the case of the Memorandum, when read together with the other information specified therein as being available for review by investors) omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(ix) No consent, approval, authorization or order of, registration or filing with, or notice to, any governmental authority or court is required, under federal or state law (including, with respect to any bulk sale laws), for the execution, delivery and performance of, or compliance by, the Seller with this Agreement, or the consummation by the Seller of any transaction contemplated hereby, other than (1) the enforceability thereof may be limited by bankruptcyfiling or recording of financing statements, insolvency, moratorium, receivership instruments of assignment and other similar laws relating documents necessary in connection with the Seller's sale of the Mortgage Loans to creditors’ rights; the Purchaser, (2) the collectability thereof may be limited due to acceleration in connection with a foreclosure such consents, approvals, authorizations, qualifications, registrations, filings or other involuntary prepayment; notices as have been obtained, made or given and (3) subsequent changes where the lack of such consent, approval, authorization, qualification, registration, filing or notice would not have a material adverse effect on the performance by the Seller under this Agreement.
(c) Upon discovery by any of the Seller or the parties to the Pooling and Servicing Agreement of a breach of any of the representations and warranties made pursuant to and set forth in applicable law may limit subsection (b) above which materially and adversely affects the interests of the Purchaser or prohibit enforceability thereof under applicable lawa breach of any of the representations and warranties made pursuant to subsection (a) above and set forth in Exhibit C which materially and adversely affects the value of any Mortgage Loan, the value of the related Mortgaged Property or the interests therein of the Purchaser, the Trustee on behalf of the Certificateholders or any Certificateholder, the party discovering such breach shall give prompt written notice to the Seller and/or the other parties, as applicable.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (CD 2007-Cd5 Mortgage Trust)
Representations, Warranties and Covenants of the Seller. The Seller hereby represents and warrants and covenants to the Purchaser, as of the date hereof and as of the Closing Date, and covenants, that:
(i) The Seller is a corporation duly organized, validly existing and in good stand ing under the laws of the State of Delaware corporation with full corporate power and authority is duly authorized and qualified to conduct its transact any and all business as presently contemplated by this Agreement to be conducted by it the Seller in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such state, to the extent material necessary to ensure its ability to enforce each Mortgage Loan and to service the consummation Mortgage Loans in accordance with the terms of the transactions contemplated herein. The Agreement has been duly authorized, executed Pooling and delivered by the Seller. Servicing Agreement;
(ii) The Seller had the full corporate power and authority to own the originate, hold and sell each Mortgage Loans and to transfer and convey the Mortgage Loans to the Purchaser Loan and has the full corporate power and authority to execute service each Mortgage Loan, and deliverto execute, engage in deliver and perform, and to enter into and consummate the transactions contemplated by, by this Agreement and perform and observe the terms and conditions of this Agreement;
(ii) The Seller has duly authorized by all necessary corporate action on the part of the Seller the execution, delivery and performance of this Agreement, has duly executed and delivered this Agreement, ; and this Agreement, assuming the due authorization, execution and delivery thereof by the Purchaser, constitutes a legal, valid and binding obligation of the Seller, enforceable against it the Seller in accordance with its terms terms, except as to the extent that the enforceability thereof may be limited by (a) bankruptcy, insolvency or reorganization or by insolvency, moratorium, receivership, conservatorship, arrangement, moratorium and other similar laws relating to creditors’ rights generally and (b) the general principles of equity, whether such enforcement is sought in equity or at law;
(iii) The execution, execution and delivery and performance of this Agreement by the Seller, the servicing of the Mortgage Loans by the Seller (x) under the Pooling and Servicing Agreement, 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 Seller and does not conflict and will not conflict with, does not breach and will not (A) result in a breach of and does not constitute and will not constitute a default (any term or an event, which with notice or lapse of time or both, would constitute a default) under (A) any terms or provisions provision of the organizational documents charter or by- laws of the Seller, (B) any term conflict with, result in a breach, violation or provision acceleration of, or result in a default under, the terms of any other material agreement, contract, instrument or indenture, indenture to which the Seller is a party or by which the Seller or any of its property is it may be bound, or (C) any lawstatute, rule, regulation, order, judgment, writ, injunction order or decree regulation applicable to the Seller of any court court, regulatory body, administrative agency or governmental authority body having jurisdiction over the Seller or any of its property and or (yC) does not create or impose and will not result in the creation or imposition of any lien, charge or encumbrance (other than any created hereby in favor of the Purchaser and its assignees) which would have a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loans; and the Seller 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 Seller’s knowledge, would in the future result in the creation or imposition of any lien, charge or encumbrance which would have a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loans or materially and adversely affect (x) the ability of the Seller to perform its obligations under this Agreement or the Pooling and Servicing Agreement or (y) the business, operations, financial condition, properties or assets of the Seller taken as a whole;
(iv) No consent, approval, authorization authorization, or order of, registration any court or filing with, governmental agency or notice on behalf of the Seller to any governmental authority or court body is required, under federal laws or the laws of the State of New York, required for the execution, delivery and performance by the Seller of, or compliance by the Seller with, this Agreement or the consummation by of the transactions contemplated hereby, or if any such consent, approval, authorization or order is required, the Seller of any other transaction contemplated hereby and by has obtained the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificatessame;
(v) The Seller is not an approved seller/servicer for Xxxxxx Xxx or Xxxxxxx Mac in violation ofgood standing and is a HUD approved mortgagee pursuant to Section 203 and Section 211 of the National Housing Act;
(vi) No litigation or proceeding is pending or, and to the execution and delivery best knowledge of this Agreement by the Seller, threatened, against the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over the Seller or its assets, which violation might have consequences that would materially and adversely affect the condition (financial execution, delivery or otherwise) enforceability of this Agreement or the operation Pooling and Servicing Agreement or the issuance of the Certificates or the ability of the Seller to service the Mortgage Loans or to perform any of its assets or might have consequences other obligations hereunder in accordance with the terms hereof and the terms of the Pooling and Servicing Agreement or, that would materially and adversely affect result in a material adverse change in the performance financial or operating conditions of its obligations and duties hereunder;
(vi) The Seller does not believe, nor does it have any reason or cause to believe, that it cannot perform each and every covenant contained in this Agreementthe Seller;
(vii) Immediately prior No certificate of an officer, statement or other information furnished in writing or report delivered by the Seller to the sale Purchaser, any Affiliate of the Purchaser or the Trustee for use in connection with the purchase of the Mortgage Loans to the Purchaser as herein contemplated, the Seller was the owner of the related Mortgage and the indebtedness evidenced by transactions contemplated hereunder and under the related Mortgage NotePooling and Servicing Agreement contains any untrue statement of a material fact, andor omits a material fact necessary to make the information, upon the payment to the Seller of the Purchase Pricecertificate, statement or report not misleading in the event that the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereofany material respect;
(viii) There are no actions or proceedings against, or investigations known to it of, the Seller before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans by the Seller or the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by the Seller of its obligations under, or validity or enforceability of, this Agreement;
(ix) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;
(x) The Seller has not dealt with any broker, investment banker, agent or other person, except for the Purchaser or any of its affiliates, that may be entitled to any commission or compensation in connection with the sale of the Mortgage Loans (except that an entity that previously financed the Seller’s ownership of the Mortgage Loans may be entitled to a fee to release its security interest in the Mortgage Loans, which fee shall have been paid and which security interest shall have been released on or prior to the Closing Date);
(xiix) There is no litigation currently pending orEach Mortgage Note, each Mortgage, each Assignment and any other document required to be delivered by or on behalf of the Seller under this Agreement or the Pooling and Servicing Agreement to the best Purchaser or any assignee, transferee or designee of the Seller’s knowledge without independent investigationPurchaser for each Mortgage Loan has been or will be, threatened against in accordance with Section 4(b) hereof, delivered to the Purchaser or any such assignee, transferee or designee. With respect to each Mortgage Loan, the Seller is in possession of a complete Mortgage File in compliance with the Pooling and Servicing Agreement, except for such documents that would reasonably be expected have been delivered (1) to adversely affect the Purchaser or any assignee, transferee or designee of the Purchaser or (2) for recording to the appropriate public recording office and have not yet been returned;
(x) The Seller (A) is a solvent entity and is paying its debts as they become due, (B) immediately after giving effect to the transfer of the Mortgage Loans, will be a solvent entity and will have sufficient resources to pay its debts as they become due and (C) did not sell the issuance Mortgage Loans to the Purchaser with the intent to hinder, delay or defraud any of the Certificates or the execution, delivery, performance or enforceability of this Agreement, or that would result in a material adverse change in the financial condition of the Sellerits creditors; and
(xiixi) The information set forth in the applicable part transfer of the Closing Schedule relating Mortgage Loans to the existence of a Prepayment Charge is complete, true and correct in all material respects Purchaser at the date or dates respecting which such information is furnished Closing Date will be treated by the Seller for financial accounting and each Prepayment Charge is permissible and enforceable in accordance with its terms upon the mortgagor’s full and voluntary principal prepayment under applicable law, 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; (2) the collectability thereof may be limited due to acceleration in connection with reporting purposes as a foreclosure or other involuntary prepayment; or (3) subsequent changes in applicable law may limit or prohibit enforceability thereof under applicable lawsale of assets.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement
Representations, Warranties and Covenants of the Seller. The Seller hereby represents and warrants to the PurchaserPurchaser with respect to the Mortgage Loans, as of the date hereof and as of the Closing Date, and covenants, covenants that:
(i1) The Seller is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware corporation with full corporate power and authority is duly authorized and qualified to conduct its transact any and all business as presently contemplated by this Agreement to be conducted by it the Seller in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such State, to the extent material necessary to ensure the consummation ability of the transactions contemplated herein. The Agreement has been duly authorized, executed Master Servicer to enforce each Mortgage Loan and delivered by to service the Seller. Mortgage Loans in accordance with the terms of the Pooling and Servicing Agreement;
(2) The Seller had the full corporate power and authority to own the hold and sell each Mortgage Loans and to transfer and convey the Mortgage Loans to the Purchaser Loan and has the full corporate power and authority to execute service each Mortgage Loan, and deliverto execute, engage in deliver and perform, and to enter into and consummate the transactions contemplated by, by this Agreement and perform and observe the terms and conditions of this Agreement;
(ii) The Seller has duly authorized by all necessary corporate action on the part of the Seller the execution, delivery and performance of this Agreement, ; this Agreement has been duly executed and delivered this Agreement, by the Seller; and this Agreement, assuming the due authorization, execution and delivery thereof by the Purchaser, constitutes a legal, valid and binding obligation of the Seller, enforceable against it the Seller in accordance with its terms terms, except as to the extent that (a) the enforceability thereof may be limited by bankruptcy, insolvency or reorganization or by general principles insolvency, moratorium, receivership and other similar laws relating to creditors' rights generally and (b) the remedy of equityspecific 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;
(iii3) The execution, execution and delivery and performance of this Agreement by the Seller, the servicing of the Mortgage Loans by the Seller (x) does not conflict prior to the transfer thereof of the Master Servicer, 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 Seller and will not conflict with, does not breach and will not (A) result in a breach of and does not constitute and will not constitute a default (or an event, which with notice or lapse of time or both, would constitute a default) under (A) any terms or provisions of the organizational documents of the Seller, (B) any term or provision of the charter or by-laws of the Seller 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, contract, agreement or instrument or indenture, to which the Seller is a party or by which the Seller or any of its property is it may be bound, or (C) any lawstatute, rule, regulation, order, judgment, writ, injunction order or decree regulation applicable to the Seller of any court court, regulatory body, administrative agency or governmental authority body having jurisdiction over the Seller; and the Seller 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 Seller's knowledge, would in the future materially and adversely affect, (x) the ability of the Seller to perform its property and obligations under this Agreement or (y) does not create the business, operations, financial condition, properties or impose and will not result in the creation or imposition of any lien, charge or encumbrance (other than any created hereby in favor assets of the Purchaser and its assignees) which would have Seller taken as a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loanswhole;
(iv4) No consent, approval, authorization or order of, registration of any court or filing with, governmental agency or notice on behalf of the Seller to any governmental authority or court body is required, under federal laws or the laws of the State of New York, required for the execution, delivery and performance by the Seller of, or compliance by the Seller with, this Agreement or the consummation by of the transactions contemplated hereby, or if any such consent, approval, authorization or order is required, the Seller of any other transaction contemplated hereby and by has obtained the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificatessame;
(v5) The Seller is not an approved originator/servicer for Fannie Mae or Freddie Mac ix xxxx xxxndinx xxx xs a HUD approved mortgagee pursuant to Section 203 and Section 211 of the National Housing Act; and
(6) Except as otherwise disclosed in violation ofthe Prospectus Supplement, and dated January 21, 2005 (the execution and delivery of this Agreement by "Prospectus Supplement"), no litigation is pending against the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over the Seller or its assets, which violation might have consequences that would materially and adversely affect the condition (financial or otherwise) or the operation of the Seller or its assets or might have consequences that would materially and adversely affect the performance of its obligations and duties hereunder;
(vi) The Seller 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) Immediately prior to the sale of the Mortgage Loans to the Purchaser as herein contemplated, the Seller was the owner of the related Mortgage and the indebtedness evidenced by the related Mortgage Note, and, upon the payment to the Seller of the Purchase Price, in the event that the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereof;
(viii) There are no actions or proceedings against, or investigations known to it of, the Seller before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans by the Seller or the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by the Seller of its obligations under, or validity or enforceability of, this Agreement;
(ix) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;
(x) The Seller has not dealt with any broker, investment banker, agent or other person, except for the Purchaser or any of its affiliates, that may be entitled to any commission or compensation in connection with the sale of the Mortgage Loans (except that an entity that previously financed the Seller’s ownership of the Mortgage Loans may be entitled to a fee to release its security interest in the Mortgage Loans, which fee shall have been paid and which security interest shall have been released on or prior to the Closing Date);
(xi) There is no litigation currently pending or, to the best of the Seller’s knowledge without independent investigation, threatened against the Seller that would reasonably be expected to adversely affect the transfer of the Mortgage Loans, the issuance of the Certificates or the execution, delivery, performance delivery or enforceability of this Agreement, Agreement or that would result in a material adverse change in the financial condition ability of the Seller; and
(xii) The information set forth in Seller to service the applicable part Mortgage Loans or the Seller to perform any of the Closing Schedule relating to the existence of a Prepayment Charge 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 its other obligations hereunder in accordance with its the terms upon the mortgagor’s full and voluntary principal prepayment under applicable law, 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; (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 under applicable lawhereof.
Appears in 1 contract
Representations, Warranties and Covenants of the Seller. (a) The Seller hereby represents and warrants to the Originator and the Purchaser, as of the date hereof and as of the Closing Date, and covenants, that:
(i) The Seller is duly organized, validly existing and in good standing as a Delaware corporation under the laws of the State of California with full corporate power and authority to conduct its business as presently conducted by it to the extent material to the consummation of the transactions contemplated herein. The Agreement has been duly authorized, executed and delivered by the Seller. The Seller had the full corporate power and authority to own the Mortgage Loans and to transfer and convey the Mortgage Loans to the Purchaser and has the full corporate power and authority to execute and deliver, engage in the transactions contemplated by, and perform and observe the terms and conditions of this Agreement;.
(ii) The Seller has duly authorized the execution, delivery and performance of this Agreement, has duly executed and delivered this Agreement, and this Agreement, assuming due authorization, execution and delivery by the Originator and the Purchaser, constitutes a legal, valid and binding obligation of the Seller, enforceable against it in accordance with its terms except as the enforceability thereof may be limited by bankruptcy, insolvency or reorganization or by general principles of equity;.
(iii) The execution, delivery and performance of this Agreement by the Seller (x) does not conflict and will not conflict with, does not breach and will not result in a breach of and does not constitute and will not constitute a default (or an event, which with notice or lapse of time or both, would constitute a default) under (A) any terms or provisions of the organizational documents articles of incorporation or by-laws of the Seller, (B) any term or provision of any material agreement, contract, instrument or indenture, to which the Seller is a party or by which the Seller or any of its property is bound, or (C) any law, rule, regulation, order, judgment, writ, injunction or decree of any court or governmental authority having jurisdiction over the Seller or any of its property and (y) does not create or impose and will not result in the creation or imposition of any lien, charge or encumbrance (other than any created hereby in favor of the Purchaser and its assignees) which would have a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loans;.
(iv) No consent, approval, authorization or order of, registration or filing with, or notice on behalf of the Seller to any governmental authority or court is required, under federal laws or the laws of the State of New YorkCalifornia, for the execution, delivery and performance by the Seller of, or compliance by the Seller with, this Agreement or the consummation by the Seller of any other transaction contemplated hereby and by the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificates;
(v) The Seller is not in violation of, and the execution and delivery of this Agreement by the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over the Seller or its assets, which violation might have consequences that would materially and adversely affect the condition (financial or otherwise) or the operation of the Seller or its assets or might have consequences that would materially and adversely affect the performance of its obligations and duties hereunder;
(vi) The Seller 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) Immediately prior to the sale of the Mortgage Loans to the Purchaser as herein contemplated, the Seller was the owner of the related Mortgage and the indebtedness evidenced by the related Mortgage Note, and, upon the payment to the Seller of the Purchase Price, in the event that the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereof;
(viii) There are no actions or proceedings against, or investigations known to it of, the Seller before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans by the Seller or the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by the Seller of its obligations under, or validity or enforceability of, this Agreement;
(ix) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;
(x) The Seller has not dealt with any broker, investment banker, agent or other person, except for the Purchaser or any of its affiliates, that may be entitled to any commission or compensation in connection with the sale of the Mortgage Loans (except that an entity that previously financed the Seller’s ownership of the Mortgage Loans may be entitled to a fee to release its security interest in the Mortgage Loans, which fee shall have been paid and which security interest shall have been released on or prior to the Closing Date);
(xi) There is no litigation currently pending or, to the best of the Seller’s knowledge without independent investigation, threatened against the Seller that would reasonably be expected to adversely affect the transfer of the Mortgage Loans, the issuance of the Certificates or the execution, delivery, performance or enforceability of this Agreement, or that would result in a material adverse change in the financial condition of the Seller; and
(xii) The information set forth in the applicable part of the Closing Schedule relating to the existence of a Prepayment Charge 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 upon the mortgagor’s full and voluntary principal prepayment under applicable law, 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; (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 under applicable law.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Salom BRS MRT Sec Vii Call FLT Rt Mt Ps Th Cer Ser 1998 Nc5)
Representations, Warranties and Covenants of the Seller. The Seller hereby represents and warrants to the PurchaserPurchaser that, as of the date hereof and as of the Closing Date, and covenants, that:
(i) The Seller has been duly incorporated and is validly existing as a Delaware corporation in good standing under the laws of the jurisdiction of its incorporation with full corporate power and authority to own, lease, operate and sell its properties and to conduct its business as presently conducted by it to the extent material to the consummation of the transactions contemplated herein. The Agreement has been duly authorized, executed and delivered by the Seller. it.
(ii) The Seller had has the full corporate power and authority and legal right to own the Mortgage Loans Collateral and the related Account Files and to transfer and convey the Mortgage Loans Collateral and the related Account Files to the Purchaser and has the full corporate power and authority and legal right to execute and deliver, engage in the transactions contemplated by, and perform and observe the terms and conditions of of, this Agreement;.
(iiiii) The Seller This Agreement has been duly authorized the executionand validly authorized, delivery and performance of this Agreement, has duly executed and delivered this Agreementby the Seller, all requisite corporate action has been taken, and this Agreement, assuming due authorization, execution and delivery by Agreement constitutes the Purchaser, constitutes a legal, valid and binding obligation of the Seller, enforceable against it in accordance with its terms terms, except as the enforceability thereof enforcement may be limited by bankruptcy, insolvency or reorganization or by general principles similar laws affecting the enforcement of equity;creditors' rights generally.
(iiiiv) The No consent, approval, authorization or order of, or filing with, any court or governmental agency or body is required for the consummation by the Seller of the sale contemplated by this Agreement except as required under the Uniform Commercial Code or in respect of recordings under real estate recording statutes and except as has been obtained and are in effect.
(v) Neither the sale of the Mortgage Collateral to the Purchaser nor the execution, delivery and or performance of this Agreement by the Seller (x) does not conflicts or will conflict and with or results or will not conflict with, does not breach and will not result in a breach of and does not constitute and or constitutes or will not constitute a default (or an event, which with notice or lapse of time or both, would constitute a default) under (Ai) any terms term or provisions provision of the organizational documents charter or bylaws of the Seller, (Bii) any term or provision of any material agreement, contract, instrument or indentureindenture of any nature whatsoever, to which the Seller is a party or by which the Seller or any of its property subsidiaries is bound, a party or is bound or (Ciii) any law, rule, regulation, order, judgment, writ, injunction or decree of any court or governmental authority having jurisdiction over the Seller or any of its property and (y) does not create subsidiaries, or impose and results or will not result in the creation or imposition of any lien, charge or encumbrance (other than any created hereby in favor of the Purchaser and its assignees) which would have a material adverse effect upon the Mortgage Loans Collateral or any documents or instruments instrument evidencing or securing the Mortgage Loans;
(iv) No consentCollateral, approval, authorization or order of, registration or filing with, or notice on behalf of the Seller to any governmental authority or court is required, under federal laws or the laws of the State of New York, for the execution, delivery and performance except as contemplated by the Seller of, or compliance by the Seller with, this Agreement or the consummation by the Seller of any other transaction contemplated hereby and by the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificates;
(v) The Seller is not in violation of, and the execution and delivery of this Agreement by the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over the Seller or its assets, which violation might have consequences that would materially and adversely affect the condition (financial or otherwise) or the operation of the Seller or its assets or might have consequences that would materially and adversely affect the performance of its obligations and duties hereunder;Indenture.
(vi) The Seller does not believeshall keep and maintain, nor does it have any reason or cause to believe, that it cannot perform each and every covenant for the period during which the representations contained in this Agreement;Section 5 survive, all records pertaining to the Seller's loss on account, foreclosure and delinquency experience for the Mortgage Collateral and shall permit the Purchaser or its designee, their agents or employees access to such records upon reasonable notice for the purposes of auditing the same in order to verify the accuracy and completeness thereof.
(vii) Immediately prior Except as set forth in Exhibit A attached hereto, there are no actions, suits or proceedings pending or threatened against or affecting the Seller which if adversely determined, individually or in the aggregate, would materially adversely affect the Seller's obligations under this Agreement.
(viii) The Seller has duly and validly sold and assigned its entire right, title and interest in and to the Mortgage Collateral and the related Account Files to the Purchaser, free and clear of any lien, encumbrance or any other interests of others (including without limitation any claim of any creditor of the Seller or any affiliate of the Seller).
(ix) The Seller agrees to include in its financial statements a footnote describing the sale of the Mortgage Loans Collateral and Account Files to the Purchaser as herein contemplated, the Seller was the owner of the related Mortgage and the indebtedness evidenced by the related Mortgage Note, and, upon the payment to the Seller of the Purchase Price, in the event that the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note issuance and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereof;
(viii) There are no actions or proceedings against, or investigations known to it of, the Seller before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans by Notes and indicating that the Seller or Purchaser's assets are not available to satisfy the consummation claims of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by the Seller of its obligations undercreditors, or validity or enforceability ofif any, this Agreement;
(ix) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;
(x) The Seller has not dealt with any broker, investment banker, agent or other person, except for the Purchaser or any of its affiliates, that may be entitled to any commission or compensation in connection with the sale of the Mortgage Loans (except that an entity that previously financed the Seller’s ownership of the Mortgage Loans may be entitled to a fee to release its security interest in the Mortgage Loans, which fee shall have been paid and which security interest shall have been released on or prior to the Closing Date);
(xi) There is no litigation currently pending or, to the best of the Seller’s knowledge without independent investigation, threatened against the Seller that would reasonably be expected to adversely affect the transfer of the Mortgage Loans, the issuance of the Certificates or the execution, delivery, performance or enforceability of this Agreement, or that would result in a material adverse change in the financial condition of the Seller; and
(xii) The information set forth in the applicable part of the Closing Schedule relating to the existence of a Prepayment Charge 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 upon the mortgagor’s full and voluntary principal prepayment under applicable law, 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; (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 under applicable law.
Appears in 1 contract
Representations, Warranties and Covenants of the Seller. The Seller hereby represents represents, warrants and warrants covenants to and with the Purchaser, as of the date hereof and as of the Closing Date, and covenants, State that:
(ia) The Seller is a Delaware corporation with full corporate power [ banking corporation][a national banking association], duly organized, validly existing and authority to conduct its business as presently conducted by it to in good standing under the extent material to the consummation laws of the transactions contemplated herein. The Agreement has been duly authorized, executed and delivered by the Seller. [State of
(b) The Seller had the full corporate power is duly qualified to transact business and authority to own the Mortgage Loans and to transfer and convey the Mortgage Loans to the Purchaser and has the full corporate power and authority to execute and deliver, engage hold property in the transactions contemplated by, and perform and observe the terms and conditions State of this Agreement;Maryland.
(iic) The Seller has duly authorized full power, authority and legal right to enter into and perform its obligations under this Trust Agreement and the Conditional Purchase Agreement; the execution, delivery and performance by the Seller of this Agreement, has Trust Agreement and the Conditional Purchase Agreement have been duly executed and delivered this Agreement, and this Agreement, assuming due authorization, execution and delivery authorized by all necessary action on the Purchaser, constitutes a legal, valid and binding obligation part of the Seller, enforceable against it in accordance with its terms except as do not require the enforceability thereof may be limited by bankruptcy, insolvency approval or reorganization consent of any trustee or by general principles holder of equity;
(iii) The execution, delivery and performance any indebtedness or obligation of this Agreement by the Seller (xor such required approvals and consents have heretofore been duly obtained) does and do not conflict contravene any law, governmental rule, regulation, order or ordinance of any governmental entity having jurisdiction or the corporate charter or by-laws of the Seller and will do not conflict with, does not breach and will not result in a any breach of and does not constitute and will not or constitute a default (or an eventunder any indenture, which with notice or lapse of time or both, would constitute a default) under (A) any terms or provisions of the organizational documents of the Seller, (B) any term or provision of any material agreementmortgage, contract, agreement or instrument or indenture, to which the Seller is a party or by which the Seller it or any of its property is bound, .
(d) There are no pending or (C) any law, rule, regulation, order, judgment, writ, injunction threatened actions or decree of proceedings before any court or governmental authority having jurisdiction over administrative agency that will materially adversely affect the Seller or any of its property and (y) does not create or impose and will not result in the creation or imposition of any lien, charge or encumbrance (other than any created hereby in favor of the Purchaser and its assignees) which would have a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loans;
(iv) No consent, approval, authorization or order of, registration or filing with, or notice on behalf ability of the Seller to any governmental authority or court is required, perform its obligations under federal laws or the laws of the State of New York, for the execution, delivery and performance by the Seller of, or compliance by the Seller with, this Trust Agreement or the consummation by the Seller of any other transaction contemplated hereby and by the Pooling and Servicing Conditional Purchase Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificates;.
(v) The Seller is not in violation of, and the execution and delivery of this Agreement by the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over the Seller or its assets, which violation might have consequences that would materially and adversely affect the condition (financial or otherwise) or the operation of the Seller or its assets or might have consequences that would materially and adversely affect the performance of its obligations and duties hereunder;
(vi) The Seller 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) Immediately prior to the sale of the Mortgage Loans to the Purchaser as herein contemplated, the Seller was the owner of the related Mortgage and the indebtedness evidenced by the related Mortgage Note, and, upon the payment to the Seller of the Purchase Price, in the event that the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereof;
(viii) There are no actions or proceedings against, or investigations known to it of, the Seller before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans by the Seller or the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by the Seller of its obligations under, or validity or enforceability of, this Agreement;
(ix) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;
(xe) The Seller has not dealt with granted any brokersecurity interest, investment bankernor assigned or transferred, agent nor allowed any claim against the Seller to become a lien or other personencumbrance upon, except for the Purchaser or any of its affiliates, that may be entitled to any commission or compensation in connection with the sale of the Mortgage Loans (except that an entity that previously financed the Seller’s ownership of the Mortgage Loans may be entitled to a fee to release its security interest in the Mortgage Loans, which fee shall have been paid and which security interest shall have been released on or prior to the Closing Date);
(xi) There is no litigation currently pending or, to the best of the Seller’s knowledge without independent investigation, threatened against the Seller that would reasonably be expected to adversely affect the transfer of the Mortgage Loans, the issuance of the Certificates Conditional Purchase Agreement or the execution, delivery, performance or enforceability of this Agreement, or that would result in a material adverse change in the financial condition of the Seller; and
(xii) The information Equipment except as specifically set forth in the applicable part of the Closing Schedule relating Conditional Purchase Agreement or this Trust Agreement.
(f) The Conditional Purchase Agreement delivered to the existence of a Prepayment Charge Trustee herewith is completean executed counterpart thereof and constitutes the entire writing, true obligation and correct in all material respects at agreement between the date or dates respecting which such information is furnished Seller and each Prepayment Charge is permissible the Purchaser regarding the Equipment, the possession thereof, and enforceable in accordance with its terms upon the mortgagor’s full and voluntary principal prepayment under applicable law, except to payment therefor by the extent that: (1) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ rights; (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 under applicable lawPurchaser.
Appears in 1 contract
Representations, Warranties and Covenants of the Seller. The Seller hereby represents ------------------------------------------------------- represents, warrants and warrants covenants to the Purchaser, Purchaser as of the date hereof and as of the Closing Date, and covenants, thatfollows:
(ia) The Seller is a Delaware corporation with duly organized, validly existing and in good standing under the laws of the Luxembourg and it has the full corporate power and authority to conduct its business as presently now being conducted and to own, operate or lease the properties and assets it currently owns, operates or holds under lease. The Seller is duly licensed and qualified to do business and is in good standing as a foreign corporation in each jurisdiction where the character of its business or the nature of its properties or assets makes such qualification or licensing necessary, except for those jurisdictions where the failure to be so qualified, licensed or in good standing would not have a material adverse effect on it.
(b) The Seller has full power and authority to execute and deliver this Agreement, to perform its obligations hereunder and thereunder and to consummate the transactions contemplated hereunder. The execution and delivery of this Agreement and the performance by it to the extent material to Seller of its obligations hereunder and the consummation of the transactions contemplated hereinhereunder and thereunder, have been duly authorized by the Board of Directors of the Seller (or such similar body under the laws of Luxembourg) and, to the extent necessary under the laws of the Luxembourg or the organization documents of the Seller, by its stockholders. The This Agreement has been duly authorized, executed and delivered by the Seller. The Seller had and constitute the full corporate power and authority to own the Mortgage Loans and to transfer and convey the Mortgage Loans to the Purchaser and has the full corporate power and authority to execute and deliver, engage in the transactions contemplated by, and perform and observe the terms and conditions of this Agreement;
(ii) The Seller has duly authorized the execution, delivery and performance of this Agreement, has duly executed and delivered this Agreement, and this Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a legal, valid and binding obligation obligations of the Seller, enforceable against it in accordance with its terms except as the enforceability thereof may be limited by their respective terms, subject to bankruptcy, insolvency or reorganization or by insolvency, reorganization, fraudulent conveyance, and other laws of general principles applicability affecting the rights and remedies of equity;creditors.
(iiic) The execution, delivery and performance by the Seller of this Agreement by and the Seller (x) does consummation of the transactions contemplated herein do not conflict and will not not: (i) conflict with, does not breach and will not result in a breach the breach, modification, termination or violation of, or loss of and does not constitute and will not any benefit under, constitute a default (under, accelerate the performance required by, result in or an eventgive right to a right to amend or modify the terms of, which with notice or lapse of time or both, would constitute a default) under (A) any terms or provisions of result in the organizational documents of the Seller, (B) any term or provision creation of any material lien or encumbrance upon any assets or properties, or in any manner release any party thereto from any obligation under, any mortgage, note, bond, indenture, contract agreement, contractlease, license or other instrument or indenture, to which the Seller is a party obligations of any kind or nature by which the Seller or any of its property is boundproperties or assets, may be bound or affected; (Cii) conflict with, violate or result in any lawloss of benefit under, rule, regulation, any order, judgment, writ, injunction injunction, regulation, statute or decree of any court decree; (iii) conflict with, violate or governmental authority having jurisdiction over the Seller or any of its property and (y) does not create or impose and will not result in the creation any loss of benefit under, any permit, concession or imposition of any lien, charge franchise; or encumbrance (other than any created hereby in favor of the Purchaser and its assignees) which would have a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loans;
(iv) No consent, approval, authorization conflict with or order of, registration or filing with, or notice on behalf violate any provision of the Certificate of Incorporation, charter or organizational documents or By-laws, each as heretofore amended, of the Seller.
(d) There are no outstanding or threatened claims or proceedings of any nature as against the Seller to which could in any governmental authority or court is requiredmanner affect the delivery of this Agreement, under federal laws the consummation of the transactions contemplated herein or the laws enforcement hereof.
(e) All of the State of New Yorkrepresentations, for the execution, delivery warranties and performance covenants made by the Seller of, or compliance by the Seller with, this Agreement or the consummation by the Seller of any other transaction contemplated hereby and by the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificates;
(v) The Seller is not in violation of, and shall survive the execution and delivery of this Agreement Agreement.
(f) The PHGW Shares are owned by the Seller free and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order or decree clear of any court liens, encumbrances or any order or regulation restrictions of any federalkind or nature, state, municipal or governmental agency having jurisdiction over the Seller or its assets, which violation might have consequences that would materially and adversely affect the condition (financial or otherwise) or the operation of the Seller or its assets or might have consequences that would materially and adversely affect the performance of its obligations and duties hereunder;
(vi) The Seller does not believe, nor does it have any reason or cause to believe, that it cannot perform each and every covenant contained except in this Agreement;
(vii) Immediately prior respect to the sale of the Mortgage Loans legend referred to the Purchaser as herein contemplated, the Seller was the owner of the related Mortgage and the indebtedness evidenced by the related Mortgage Note, and, upon the payment to the Seller of the Purchase Price, in the event that the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date Section 2(h) hereof;
(viii) There are no actions or proceedings against, or investigations known to it of, the Seller before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans by the Seller or the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by the Seller of its obligations under, or validity or enforceability of, this Agreement;
(ix) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;
(x) The Seller has not dealt with any broker, investment banker, agent or other person, except for the Purchaser or any of its affiliates, that may be entitled to any commission or compensation in connection with the sale of the Mortgage Loans (except that an entity that previously financed the Seller’s ownership of the Mortgage Loans may be entitled to a fee to release its security interest in the Mortgage Loans, which fee shall have been paid and which security interest shall have been released on or prior to the Closing Date);
(xi) There is no litigation currently pending or, to the best of the Seller’s knowledge without independent investigation, threatened against the Seller that would reasonably be expected to adversely affect the transfer of the Mortgage Loans, the issuance of the Certificates or the execution, delivery, performance or enforceability of this Agreement, or that would result in a material adverse change in the financial condition of the Seller; and
(xii) The information set forth in the applicable part of the Closing Schedule relating to the existence of a Prepayment Charge 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 upon the mortgagor’s full and voluntary principal prepayment under applicable law, 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; (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 under applicable law.
Appears in 1 contract
Representations, Warranties and Covenants of the Seller. The Upon the execution of the applicable Terms Agreement, the Seller hereby represents represents, warrants and warrants covenants to the Purchaser, each Underwriter as of the date hereof and as of the Closing Date, and covenants, thatDate (unless otherwise specified) as follows:
(ia) The Seller is a Delaware corporation with full corporate power and authority to conduct its business as presently conducted by it to the extent material to the consummation of the transactions contemplated herein. The Agreement has been duly authorizedorganized and is validly existing as a national banking association, executed and delivered by in good standing under the Sellerlaws of the United States. The Seller had the has, in all material respects, full corporate power and authority to own its properties and conduct its business as described in the Mortgage Loans Disclosure Materials, and to transfer execute, deliver and convey perform the Mortgage Loans Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement, this Agreement and the applicable Terms Agreement, and to the Purchaser and has the full corporate power and authority to execute and deliver, engage in consummate the transactions contemplated byby the Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement, this Agreement and the applicable Terms Agreement, and perform is duly qualified to do business and observe is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the terms securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and conditions of this Agreement;
approvals (i) would have a material adverse effect on the Seller and its subsidiaries, taken as a whole, or (ii) The Seller has duly authorized would have a material adverse effect on the execution, delivery and performance of this Seller’s ability to consummate the transactions contemplated by the Receivables Purchase Agreement, has duly executed the Pooling and delivered this Servicing Agreement, and this the Asset Representations Review Agreement, assuming due authorizationthe Transfer Agreement, execution this Agreement and delivery by the Purchaser, constitutes a legal, valid and binding obligation of the Seller, enforceable against it in accordance with its terms except as the enforceability thereof may be limited by bankruptcy, insolvency or reorganization or by general principles of equity;applicable Terms Agreement.
(iiib) The execution, delivery and performance of this Agreement by the Seller of this Agreement, the applicable Terms Agreement, the Asset Representations Review Agreement, the Transfer Agreement, the Receivables Purchase Agreement and the Pooling and Servicing Agreement, and the consummation of the transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action on the part of the Seller. Neither the execution and delivery by the Seller of such instruments, nor the performance by the Seller of the transactions herein or therein contemplated, nor the compliance by the Seller with the provisions hereof or thereof, will (xi) does not conflict and will not conflict with, does not breach and will not with or result in a breach of any of the material terms and does not constitute and will not provisions of, or constitute a material default (or an eventunder, which with notice or lapse any of time or both, would constitute a default) under (A) any terms or the provisions of the organizational documents Articles of Association or By-laws of the Seller, or (Bii) conflict with any term of the provisions of any law, governmental rule, regulation, judgment, decree or provision order binding on the Seller or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract, contract or other instrument or indenture, to which the Seller is a party or by which the Seller or any of its property it is bound, or (Civ) any law, rule, regulation, order, judgment, writ, injunction or decree of any court or governmental authority having jurisdiction over the Seller or any of its property and (y) does not create or impose and will not result in the creation or imposition of any lien, charge or encumbrance (other than upon any created hereby in favor of the Purchaser and its assignees) which would have a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loans;
(iv) No consent, approval, authorization or order of, registration or filing with, or notice on behalf of the Seller Seller’s property pursuant to any governmental authority or court is required, under federal laws or the laws of the State of New York, for the execution, delivery and performance by the Seller of, or compliance by the Seller with, this Agreement or the consummation by the Seller of any other transaction contemplated hereby and by the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificates;
(v) The Seller is not in violation of, and the execution and delivery of this Agreement by the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect toany such indenture, any order mortgage, contract or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over the Seller or its assets, which violation might have consequences that would materially and adversely affect the condition (financial or otherwise) or the operation of the Seller or its assets or might have consequences that would materially and adversely affect the performance of its obligations and duties hereunder;other instrument.
(vic) The Seller 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) Immediately prior to the sale of the Mortgage Loans to the Purchaser Except as herein contemplated, the Seller was the owner of the related Mortgage and the indebtedness evidenced by the related Mortgage Note, and, upon the payment to the Seller of the Purchase Price, described in the event that the Seller retains or has retained record titleDisclosure Materials, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereof;
(viii) There there are no actions actions, proceedings or proceedings againstinvestigations pending, or investigations known to it ofthreatened in writing, the Seller before any court, administrative agency or other tribunal (A) that might prohibit its entering into this Agreementasserting the invalidity of any Program Agreement to which it is a party, (B) seeking to prevent the sale issuance of the Mortgage Loans by Collateral Certificate or the Seller Notes or the consummation of any of the transactions set forth in any Program Agreement to which it is a party, which if adversely determined would materially and adversely affect the Collateral Certificate or the Notes, or the validity or enforceability of such Program Agreement, or (C) seeking adversely to affect the United States Federal income tax attributes of the Notes as described in the Preliminary Prospectus or the Prospectus under the headings “Prospectus Summary—Federal Income Tax Consequences” and “Federal Income Tax Consequences.”
(d) The Seller has duly executed and delivered this Agreement and the applicable Terms Agreement.
(e) The Seller has authorized the conveyance of the Receivables and the conveyance of an interest in the Seller’s interest in any related Funds Collateral to the Company under the Receivables Purchase Agreement.
(f) Complete and correct copies of publicly available portions of the Consolidated Reports of Condition and Income of the Bank for the year ended December 31, 2021 and for the quarter ended June 30, 2022, as submitted to the Governors of the Federal Reserve System by the Bank, are publicly available through xxxxx://xxx.xxxxx.xxx/public/ManageFacsimiles.aspx. Except as set forth in or contemplated in the Preliminary Prospectus, there has been no material adverse change in the condition (financial or otherwise) of the Bank since June 30, 2022.
(g) Each of the Pooling and Servicing Agreement, the Receivables Purchase Agreement, the Transfer Agreement, and the Asset Representations Review Agreement constitutes a valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general and the rights of creditors of national banking associations, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Seller or in the event of any moratorium or similar occurrence affecting the Seller and to general principles of equity. All approvals, authorizations, consents, orders or other actions of or filings with any court, governmental agency or body or official required in connection with the consummation by the Seller of the transactions set forth in the Program Agreements to which it is a party, including the transfer of the Receivables pursuant to the Receivables Purchase Agreement, have been or will be taken or obtained on or before the Closing Date.
(i) The Master Trust is not now, and following the issuance of the Collateral Certificate, will not be, required to be registered under the Investment Company Act of 1940, as amended (the “1940 Act”).
(ii) The Master Trust is not now, and immediately following the issuance of the Notes pursuant to the Indenture will not be, a “covered fund” for purposes of regulations adopted under Section 13 of the Bank Holding Company Act of 1956 (hereinafter referred to as the “Xxxxxxx Rule”). In reaching this conclusion, although other statutory or regulatory exclusions or exemptions under the 1940 Act or the Xxxxxxx Rule may be available, the Seller has relied on the exclusion from registration set forth in Rule 3a-7 under the 1940 Act.
(i) The representations and warranties of the Seller in the Pooling and Servicing Agreement and the Receivables Purchase Agreement are true and correct in all material respects.
(j) The Seller has provided a written representation to each of the Hired NRSROs (as defined below), which satisfied the requirements of paragraph (a)(3)(iii) of Rule 17g-5 of the Exchange Act (“Rule 17g-5”), as amended (the “17g-5 Representation”). The Seller has complied, and will continue to comply, with the 17g-5 Representation, other than any breach of the 17g-5 Representation that would not have a material adverse effect on the Notes.
(k) The Seller has not engaged any third party to provide due diligence services within the meaning of Rule 17g-10(d)(1) under the Exchange Act or obtained any third-party due diligence report within the meaning of Rule 15Ga-2(d) under the Exchange Act with respect to the assets held by the Master Trust or the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by the Seller of its obligations under, or validity or enforceability of, this Agreement;other Program Agreements.
(ix) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;
(xl) The Seller has expects to comply, as of the date hereof, and does comply, as of the Closing Date, in all material respects with Regulation RR, 17 C.F.R. §246.1, et seq. (the “Credit Risk Retention Rules”), either directly or (to the extent permitted by the Credit Risk Retention Rules) through a “Wholly-Owned Affiliate” (as defined in the Credit Risk Retention Rules). The Seller, or one or more of its Wholly-Owned Affiliates, expects to satisfy, as of the date hereof, and does satisfy, on the Closing Date, the Credit Risk Retention Rules by maintaining a “seller’s interest” (as defined in the Credit Risk Retention Rules) in the Issuing Entity of not dealt less than 5% of the aggregate unpaid principal balance of all outstanding investor “ABS Interests” (as defined in the Credit Risk Retention Rules) in the Issuing Entity, determined in accordance with the Credit Risk Retention Rules, without any brokerimpermissible transfer, investment bankerhedging or financing of such retained interest.
(m) As used herein “UK Securitization Regulation” means Regulation (EU) 2017/2402 as it forms part of UK domestic law under the European Union (Withdrawal) Act 2018 (the “EUWA”), agent or other personas amended by the Securitization (Amendment) (EU Exit) Regulations 2019. With reference to the UK Securitization Regulation, except the Seller covenants and agrees that (i) as “originator” for the Purchaser purposes of the UK Securitization Regulation, it currently retains, and on an ongoing basis will retain, a material net economic interest that is not less than 5% of the nominal value of the securitized exposures (measured at origination), in a form that is intended to qualify as an originator’s interest as provided in option (b) of Article 6(3) of the UK Securitization Regulation, by holding all the membership interest in the Company, which in turn holds all or part of the Transferor’s Interest; (ii) it will not (and will not permit the Company or any of its affiliatesother affiliates to) sell, that may be entitled to any commission transfer or compensation in connection with the sale of the Mortgage Loans (except that an entity that previously financed the Seller’s ownership of the Mortgage Loans may be entitled to a fee to release its security interest in the Mortgage Loans, which fee shall have been paid and which security interest shall have been released on otherwise surrender all or prior to the Closing Date);
(xi) There is no litigation currently pending or, to the best of the Seller’s knowledge without independent investigation, threatened against the Seller that would reasonably be expected to adversely affect the transfer of the Mortgage Loans, the issuance of the Certificates or the execution, delivery, performance or enforceability of this Agreement, or that would result in a material adverse change in the financial condition of the Seller; and
(xii) The information set forth in the applicable part of the Closing Schedule relating rights, benefits or obligations from the retained interest or subject it to the existence of a Prepayment Charge is completeany credit risk mitigation, 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 upon the mortgagor’s full and voluntary principal prepayment under applicable lawhedging, except to the extent that: permitted under the UK Securitization Regulation (1) the enforceability thereof may be limited as supplemented by bankruptcy, insolvency, moratorium, receivership applicable delegated regulations and other similar laws relating to creditors’ rightsguidance); (2iii) it will not change the collectability thereof may be limited due retention option or the method of calculating its net economic interest in the securitized exposures while the Notes are outstanding, except under exceptional circumstances in accordance with the UK Securitization Regulation (as supplemented by applicable delegated regulations and guidance); and (iv) it will provide ongoing confirmation of its continued compliance with its obligations in clauses (i) and (ii) in this paragraph in or concurrently with the delivery of each monthly certificateholders’ statement pursuant to acceleration in connection with a foreclosure or other involuntary prepayment; or (3) subsequent changes in applicable law may limit or prohibit enforceability thereof under applicable lawthe Series Supplement.
Appears in 1 contract
Representations, Warranties and Covenants of the Seller. (a) The Seller hereby represents and warrants to and for the Purchaser, as benefit of the date hereof and Purchaser as of the Closing Date, and covenants, Date that:
(i) The Seller is licensed and authorized to transact business in the State of New York as a Delaware corporation with full corporate power and authority to conduct its business as presently conducted by it to the extent material to the consummation branch of a foreign bank under Article V of the transactions contemplated herein. The Agreement has been duly authorized, executed and delivered by Banking Law of the Seller. The Seller had the full corporate power and authority to own the Mortgage Loans and to transfer and convey the Mortgage Loans to the Purchaser and has the full corporate power and authority to execute and deliver, engage in the transactions contemplated by, and perform and observe the terms and conditions of this Agreement;United States.
(ii) The execution and delivery of this Agreement by the Seller, and the performance of Seller's obligations under this Agreement, will not violate the Seller's organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets, which default or breach, in the Seller's good faith and commercially reasonable judgment is likely to affect materially and adversely either the ability of the Seller to perform its obligations under this Agreement or its financial condition.
(iii) The Seller has the full power and authority to enter into and perform its obligations under this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement, and this .
(iv) This Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a legalvalid, valid legal and binding obligation of the Seller, enforceable against it the Seller in accordance with its the terms except as the enforceability thereof may be limited by hereof, subject to (A) applicable bankruptcy, insolvency or reorganization or by insolvency, reorganization, fraudulent transfer, moratorium and other laws affecting the enforcement of creditors' rights generally and (B) general principles of equity;
(iii) The execution, delivery and performance regardless of this Agreement by the Seller (x) does not conflict and will not conflict with, does not breach and will not result whether such enforcement is considered in a breach of and does not constitute and will not constitute a default (proceeding in equity or an event, which with notice or lapse of time or both, would constitute a default) under (A) any terms or provisions of the organizational documents of the Seller, (B) any term or provision of any material agreement, contract, instrument or indenture, to which the Seller is a party or by which the Seller or any of its property is bound, or (C) any at law, rule, regulation, order, judgment, writ, injunction or decree of any court or governmental authority having jurisdiction over the Seller or any of its property and (y) does not create or impose and will not result in the creation or imposition of any lien, charge or encumbrance (other than any created hereby in favor of the Purchaser and its assignees) which would have a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loans;
(iv) No consent, approval, authorization or order of, registration or filing with, or notice on behalf of the Seller to any governmental authority or court is required, under federal laws or the laws of the State of New York, for the execution, delivery and performance by the Seller of, or compliance by the Seller with, this Agreement or the consummation by the Seller of any other transaction contemplated hereby and by the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificates;.
(v) The Seller is not in violation of, and the its execution and delivery of this Agreement by the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect toof, any law, any order or decree of any court or arbiter, or any order order, regulation or regulation demand of any federal, state, municipal state or local governmental agency having jurisdiction over the Seller or its assetsregulatory authority, which violation might have consequences that would violation, in the Seller's good faith and reasonable judgment, is likely to affect materially and adversely affect either the condition (financial or otherwise) or the operation ability of the Seller or its assets or might have consequences that would materially and adversely affect the performance of to perform its obligations and duties hereunder;under this Agreement or the financial condition of the Seller.
(vi) The Seller does not believe, nor does it have any reason or cause No litigation is pending with regard to believe, that it cannot perform each and every covenant contained in this Agreement;
(vii) Immediately prior to the sale of the Mortgage Loans to the Purchaser as herein contemplated, which the Seller was the owner has received service of the related Mortgage and the indebtedness evidenced by the related Mortgage Note, and, upon the payment to the Seller of the Purchase Price, in the event that the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereof;
(viii) There are no actions or proceedings against, or investigations known to it of, the Seller before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans by the Seller or the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by the Seller of its obligations under, or validity or enforceability of, this Agreement;
(ix) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;
(x) The Seller has not dealt with any broker, investment banker, agent or other person, except for the Purchaser or any of its affiliates, that may be entitled to any commission or compensation in connection with the sale of the Mortgage Loans (except that an entity that previously financed the Seller’s ownership of the Mortgage Loans may be entitled to a fee to release its security interest in the Mortgage Loans, which fee shall have been paid and which security interest shall have been released on or prior to the Closing Date);
(xi) There is no litigation currently pending process or, to the best of the Seller’s knowledge without independent investigation's knowledge, threatened against the Seller that which if determined adversely to the Seller would reasonably be expected to adversely affect prohibit the transfer of the Mortgage Loans, the issuance of the Certificates or the execution, delivery, performance or enforceability of Seller from entering into this Agreement, or that in the Seller's good faith and reasonable judgment, would result in a material adverse change in be likely to materially and adversely affect either the ability of the Seller to perform its obligations under this Agreement or the financial condition of the Seller; and.
(xiivii) No consent, approval, authorization or order of, or filing or registration with, any state or federal court or governmental agency or body is required for the consummation by the Seller of the transactions contemplated herein, except for those consents, approvals, authorizations or orders that previously have been obtained and those filings and registrations that previously have been completed, and except for those filings and recordings of Mortgage Loan documents and assignments thereof that are contemplated by the Pooling and Servicing Agreement to be completed after the Closing Date.
(b) The information Seller hereby makes the representations and warranties contained in Schedule II (subject to any exceptions thereto listed on Schedule IIA) to and for the benefit of the Purchaser as of the Closing Date (or as of such other dates specifically provided in the particular representation and warranty), with respect to (and solely with respect to) each Mortgage Loan.
(c) Upon discovery of any Material Breach or Material Document Defect, the Purchaser or its designee shall notify the Seller thereof in writing and request that the Seller correct or cure such Material Breach or Material Document Defect. Within 90 days of the earlier of discovery or receipt of written notice by the Seller that there has been a Material Breach or a Material Document Defect (such 90-day period, the "Initial Resolution Period"), the Seller shall (i) cure such Material Breach or Material Document Defect, as the case may be, in all material respects or (ii) repurchase each affected Mortgage Loan or REO Loan (each, a "Defective Mortgage Loan") at the related Purchase Price in accordance with the terms hereof and, if applicable, the terms of the Pooling and Servicing Agreement, with payment to be made in accordance with the reasonable directions of the Purchaser; provided that if the Seller certifies in writing to the Purchaser (i) that, as evidenced by an accompanying Opinion of Counsel, any such Material Breach or Material Document Defect, as the case may be, does not and will not cause the Defective Mortgage Loan, to fail to be a "qualified mortgage" within the meaning of Section 860G(a)(3) of the Code, (ii) that such Material Breach or Material Document Defect, as the case may be, is capable of being corrected or cured but not within the applicable Initial Resolution Period, (iii) that the Seller has commenced and is diligently proceeding with the cure of such Material Breach or Material Document Defect, as the case may be, within the applicable Initial Resolution Period, and (iv) that the Seller anticipates that such Material Breach or Material Document Defect, as the case may be, will be corrected or cured within an additional period not to exceed the Resolution Extension Period (as defined below), then the Seller shall have an additional period equal to the applicable Resolution Extension Period to complete such correction or cure or, failing such, to repurchase the Defective Mortgage Loan; and provided, further, if the Seller's obligation to repurchase any Defective Mortgage Loan as a result of a Material Breach or Material Document Defect arises within the three-month period commencing on the Closing Date (or within the two-year period commencing on the Closing Date if the Defective Mortgage Loan is a "defective obligation" within the meaning of Section 860G(a)(4)(B)(ii) of the Code and Treasury Regulations Section 1.860G-2(f)), and if the Defective Mortgage Loan is still subject to the Pooling and Servicing Agreement, the Seller may, at its option, in lieu of repurchasing such Defective Mortgage Loan (but, in any event, no later than such repurchase would have to have been completed), (i) replace such Defective Mortgage Loan with one or more substitute mortgage loans that individually and collectively satisfy the requirements of the definition of "Qualifying Substitute Mortgage Loan" set forth in the applicable part Pooling and Servicing Agreement, and (ii) pay any corresponding Substitution Shortfall Amount, such substitution and payment to be effected in accordance with the terms of the Closing Schedule relating Pooling and Servicing Agreement. Any such repurchase or replacement of a Defective Mortgage Loan shall be on a whole loan, servicing released basis. The Seller shall have no obligation to monitor the Mortgage Loans regarding the existence of a Prepayment Charge is completeMaterial Breach or Material Document Defect, true and correct in all material respects at but if the date Seller discovers a Material Breach or dates respecting which such information is furnished and each Prepayment Charge is permissible and enforceable in accordance Material Document Defect with its terms upon respect to a Mortgage Loan, it will notify the mortgagor’s full and voluntary principal prepayment under applicable law, 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; (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 under applicable lawPurchaser.
Appears in 1 contract
Samples: Mortgage Loan Purchase and Sale Agreement (Banc of America Commercial Mortgage Inc., Series 2007-3)
Representations, Warranties and Covenants of the Seller. (a) The Seller hereby represents makes, as of the Closing Date (or as of such other date specifically provided in the particular representation or warranty), to and warrants to for the benefit of the Purchaser, and its successors and assigns (including, without limitation, the Trustee and the holders of the Certificates), each of the representations and warranties set forth in Exhibit C, with such changes or modifications as may be permitted or required by the Rating Agencies.
(b) In addition, the Seller, as of the date hereof hereof, hereby represents and as of the Closing Datewarrants to, and covenantscovenants with, the Purchaser that:
(i) The Seller is a Delaware corporation limited partnership, duly organized, validly existing and in good standing under the laws of the State of New York, and is in compliance with full corporate power and authority to conduct its business as presently conducted by it the laws of each State in which any Mortgaged Property is located to the extent material necessary to ensure the consummation enforceability of the transactions contemplated herein. The Agreement has been duly authorized, executed and delivered by the Seller. The Seller had the full corporate power and authority to own the each Mortgage Loans Loan and to transfer and convey the Mortgage Loans to the Purchaser and has the full corporate power and authority to execute and deliver, engage in the transactions contemplated by, and perform and observe the terms and conditions of its obligations under this Agreement;.
(ii) The execution and delivery of this Agreement by the Seller, and the performance and compliance with the terms of this Agreement by the Seller, will not violate the Seller's organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets, in each case which materially and adversely affect the ability of the Seller to carry out the transactions contemplated by this Agreement.
(iii) The Seller has the full power and authority to enter into and consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement, and this .
(iv) This Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a legalvalid, valid legal and binding obligation of the Seller, enforceable against it the Seller in accordance with its the terms except as the enforceability thereof may be limited by hereof, subject to (A) applicable bankruptcy, insolvency or reorganization or by insolvency, reorganization, moratorium and other laws affecting the enforcement of creditors' rights generally, (B) general principles of equity;
, regardless of whether such enforcement is considered in a proceeding in equity or at law, and (iiiC) The executionpublic policy considerations underlying the securities laws, delivery and performance to the extent that such public policy considerations limit the enforceability of the provisions of this Agreement by the Seller (x) does not conflict and will not conflict with, does not breach and will not result in a breach of and does not constitute and will not constitute a default (or an event, which with notice or lapse of time or both, would constitute a default) under (A) any terms or provisions of the organizational documents of the Seller, (B) any term or provision of any material agreement, contract, instrument or indenture, that purport to which the Seller is a party or by which the Seller or any of its property is bound, or (C) any law, rule, regulation, order, judgment, writ, injunction or decree of any court or governmental authority having jurisdiction over the Seller or any of its property and (y) does not create or impose and will not result in the creation or imposition of any lien, charge or encumbrance (other than any created hereby in favor of the Purchaser and its assignees) which would have a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loans;
(iv) No consent, approval, authorization or order of, registration or filing with, or notice on behalf of the Seller to any governmental authority or court is required, under federal laws or the laws of the State of New York, provide indemnification for the execution, delivery and performance by the Seller of, or compliance by the Seller with, this Agreement or the consummation by the Seller of any other transaction contemplated hereby and by the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificates;liabilities.
(v) The Seller is not in violation of, and the its execution and delivery of this Agreement by the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect toof, any law, any order or decree of any court or arbiter, or any order order, regulation or regulation demand of any federal, state, municipal state or local governmental agency having jurisdiction over the Seller or its assetsregulatory authority, which violation might have consequences that would violation, in the Seller's good faith and reasonable judgment, is likely to affect materially and adversely affect either the condition (financial or otherwise) or the operation ability of the Seller or its assets or might have consequences that would materially and adversely affect the performance of to perform its obligations and duties hereunder;under this Agreement or the financial condition of the Seller.
(vi) The No litigation is pending with regard to which Seller does not believehas received service of process or, nor does it have any reason or cause to believe, that it cannot perform each and every covenant contained in this Agreement;
(vii) Immediately prior to the sale best of the Mortgage Loans to the Purchaser as herein contemplatedSeller's knowledge, threatened against the Seller was the owner outcome of the related Mortgage and the indebtedness evidenced by the related Mortgage Note, and, upon the payment to the Seller of the Purchase Pricewhich, in the event that Seller's good faith and reasonable judgment, could reasonably be expected to prohibit the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereof;
(viii) There are no actions or proceedings against, or investigations known to it of, the Seller before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans by the Seller or the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by ability of the Seller of to perform its obligations under, or validity or enforceability of, under this Agreement;.
(ix) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;
(xvii) The Seller has not dealt with any broker, investment banker, agent or other person, except for other than the Purchaser or any of its Purchaser, the Underwriters, the Initial Purchasers and their respective affiliates, that may be entitled to any commission or compensation in connection with the sale of the Mortgage Loans (except that an entity that previously financed or the Seller’s ownership consummation of any of the Mortgage Loans may be entitled to a fee to release other transactions contemplated hereby.
(viii) Neither the Seller nor anyone acting on its security behalf has (A) offered, pledged, sold, disposed of or otherwise transferred any Certificate, any interest in any Certificate or any other similar security to any person in any manner, (B) solicited any offer to buy or to accept a pledge, disposition or other transfer of any Certificate, any interest in any Certificate or any other similar security from any person in any manner, (C) otherwise approached or negotiated with respect to any Certificate, any interest in any Certificate or any other similar security with any person in any manner, (D) made any general solicitation by means of general advertising or in any other manner with respect to any Certificate, any interest in any Certificate or any similar security, or (E) taken any other action, that (in the Mortgage Loans, which fee shall have been paid and which security interest shall have been released on or prior to the Closing Date);
(xi) There is no litigation currently pending or, to the best case of any of the Seller’s knowledge without independent investigation, threatened against the Seller that acts described in clauses (A) through (E) above) would reasonably be expected to adversely affect the transfer constitute or result in a violation of the Mortgage Loans, Securities Act or any state securities law relating to or in connection with the issuance of the Certificates or require registration or qualification pursuant to the executionSecurities Act or any state securities law of any Certificate not otherwise intended to be a Registered Certificate. In addition, deliverythe Seller will not act, performance nor has it authorized or enforceability of this Agreementwill it authorize any person to act, or that would result in a material adverse change in the financial condition of the Seller; and
(xii) The information any manner set forth in the applicable part foregoing sentence with respect to any of the Closing Schedule relating Certificates or interests therein. For purposes of this paragraph 4(b)(viii), the term "similar security" shall be deemed to include, without limitation, any security evidencing or, upon issuance, that would have evidenced an interest in the Mortgage Loans or the Other Mortgage Loans or any substantial number thereof.
(ix) Insofar as it relates to the existence Mortgage Loans, the information set forth on pages A-9 through A-11, inclusive, of a Prepayment Charge Annex A to the Prospectus Supplement (as defined in Section 9) (the "Loan Detail") and, to the extent consistent therewith, the information set forth on the diskette attached to the Prospectus Supplement and the accompanying prospectus (the "Diskette"), 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 upon the mortgagor’s full and voluntary principal prepayment under applicable law, except respects. Insofar as it relates to the extent that: Mortgage Loans and/or the Seller and does not represent a restatement or aggregation of the information on the Loan Detail, the information set forth in the Prospectus Supplement and the Memorandum (1as defined in Section 9) under the enforceability thereof may be limited headings "Summary of Series 2000-C2 Transaction--The Mortgage Assets," "--Geographic Concentrations of the Mortgaged Properties," "--Property Types," "--Prepayment Protection Provided by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ rights; (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 under applicable law.Mortgage Loans," "--Payment Terms of the
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Gmac Commercial Mortgage Securities Inc)
Representations, Warranties and Covenants of the Seller. The Seller hereby represents and warrants to each Buyer, and covenants for the Purchaserbenefit of each Buyer, as of the date hereof and as of the Closing Date, and covenants, thatfollows:
(ia) The To the Seller’s knowledge, the Shares have been duly authorized by all necessary corporate action and validly issued, fully paid and nonassessable;
(b) This Agreement has been duly authorized, validly executed and delivered on behalf of the Seller and is a Delaware corporation valid and binding agreement and obligation of the Seller enforceable against the Seller in accordance with its terms, subject to limitations on enforcement by general principles of equity and by bankruptcy or other laws affecting the enforcement of creditors’ rights generally, and the Seller has full corporate power and authority to conduct execute and deliver this Agreement and the other agreements and documents contemplated hereby and to perform its business as presently conducted by it to obligations hereunder and thereunder;
(c) The execution and delivery of this Agreement, the extent material to sale of the Shares and the consummation of the transactions contemplated herein. The Agreement has been duly authorized, executed and delivered by the Seller. The Seller had the full corporate power and authority to own the Mortgage Loans and to transfer and convey the Mortgage Loans to the Purchaser and has the full corporate power and authority to execute and deliver, engage in the transactions contemplated by, and perform and observe the terms and conditions of this Agreement;
(ii) The Seller has duly authorized the execution, delivery and performance of this Agreement, has duly executed and delivered this Agreement, and this Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a legal, valid and binding obligation of the Seller, enforceable against it in accordance with its terms except as the enforceability thereof may be limited by bankruptcy, insolvency or reorganization or by general principles of equity;
(iii) The execution, delivery and performance of this Agreement by the Seller (x) does not conflict and Seller, will not conflict with, does not breach and will not with or result in a breach of and does not constitute and will not constitute or a default (or an event, which with notice or lapse under any of time or both, would constitute a default) under (A) any the terms or provisions of the Seller’s organizational documents or of the Seller, (B) any term or material provision of any material agreement, contract, instrument or indenture, mortgage, deed of trust or other material agreement or instrument to which the Seller is a party or by which the Seller it or any of its property material properties or assets is bound, or (C) any material provision of any law, statute, rule, regulation, orderor any existing applicable decree, judgmentjudgment or order by any court, writfederal or state regulatory body, injunction administrative agency, or decree of any court or other governmental authority body having jurisdiction over the Seller Seller, or any of its property and (y) does not create material properties or impose and assets or will not result in the creation or imposition of any material lien, charge or encumbrance (other than upon any created hereby in favor material property or assets of the Purchaser and its assignees) Seller pursuant to the terms of any agreement or instrument to which would have any of them is a material adverse effect upon the Mortgage Loans party or by which any of them may be bound or to which any of their property or any documents or instruments evidencing or securing the Mortgage Loansof them is subject;
(ivd) No consentauthorization, approval, authorization filing with or order of, registration or filing with, or notice on behalf consent of any governmental body is required for the sale of the Seller Shares to any governmental authority or court is required, under federal laws or the laws of the State of New York, for the execution, delivery and performance by the Seller of, or compliance by the Seller with, Buyers pursuant to this Agreement or the consummation by the Seller of any other transaction contemplated hereby and by the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificates;and
(ve) The Seller is not in violation of, the beneficial and the execution and delivery of this Agreement by the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over the Seller or its assets, which violation might have consequences that would materially and adversely affect the condition (financial or otherwise) or the operation of the Seller or its assets or might have consequences that would materially and adversely affect the performance of its obligations and duties hereunder;
(vi) The Seller 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) Immediately prior to the sale of the Mortgage Loans to the Purchaser as herein contemplated, the Seller was the record owner of the related Mortgage Shares (excluding the Transferred Shares), free and clear of any liens, charges or encumbrances and has the indebtedness evidenced unconditional right to sell the Transferred Shares in the transactions contemplated by the related Mortgage Note, andPurchase Agreement. At the Closing, upon the payment to the Seller of the Purchase Price, in the event that the Seller retains or has retained record titleBuyers will acquire all right, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereof;
(viii) There are no actions or proceedings against, or investigations known to it of, the Seller before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans by the Seller or the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by the Seller of its obligations under, or validity or enforceability of, this Agreement;
(ix) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;
(x) The Seller has not dealt with any broker, investment banker, agent or other person, except for the Purchaser or any of its affiliates, that may be entitled to any commission or compensation in connection with the sale of the Mortgage Loans (except that an entity that previously financed the Seller’s ownership of the Mortgage Loans may be entitled to a fee to release its security interest in the Mortgage LoansShares, which fee shall have been paid free and which security interest shall have been released on clear of all liens, charges or prior to the Closing Date);
(xi) There is no litigation currently pending or, to the best of the Seller’s knowledge without independent investigation, threatened against the Seller that would reasonably be expected to adversely affect the transfer of the Mortgage Loans, the issuance of the Certificates or the execution, delivery, performance or enforceability of this Agreement, or that would result in a material adverse change in the financial condition of the Seller; and
(xii) The information set forth in the applicable part of the Closing Schedule relating to the existence of a Prepayment Charge 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 upon the mortgagor’s full and voluntary principal prepayment under applicable law, 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; (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 under applicable lawencumbrances.
Appears in 1 contract
Representations, Warranties and Covenants of the Seller. (a) The Seller hereby represents makes, as of the Closing Date (or as of such other date specifically provided in the particular representation or warranty), to and warrants to for the benefit of the Purchaser, and its successors and assigns (including, without limitation, the Trustee and the holders of the Certificates), each of the representations and warranties set forth in Exhibit C, with such changes or modifications as may be permitted or required by the Rating Agencies.
(b) In addition, the Seller, as of the date hereof hereof, hereby represents and as of the Closing Datewarrants to, and covenantscovenants with, the Purchaser that:
(i) The Seller is a Delaware corporation corporation, duly organized, validly existing and in good standing under the laws of the State of Maryland, and is in compliance with full corporate power and authority to conduct its business as presently conducted by it the laws of each State in which any Mortgaged Property is located to the extent material necessary to ensure the consummation enforceability of the transactions contemplated herein. The Agreement has been duly authorized, executed and delivered by the Seller. The Seller had the full corporate power and authority to own the each Mortgage Loans Loan and to transfer and convey the Mortgage Loans to the Purchaser and has the full corporate power and authority to execute and deliver, engage in the transactions contemplated by, and perform and observe the terms and conditions of its obligations under this Agreement;.
(ii) The execution and delivery of this Agreement by the Seller, and the performance and compliance with the terms of this Agreement by the Seller, will not violate the Seller's organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets, in each case which materially and adversely affect the ability of the Seller to carry out the transactions contemplated by this Agreement.
(iii) The Seller has the full power and authority to enter into and consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement, and this .
(iv) This Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a legalvalid, valid legal and binding obligation of the Seller, enforceable against it the Seller in accordance with its the terms except as the enforceability thereof may be limited by hereof, subject to (A) applicable bankruptcy, insolvency or reorganization or by insolvency, reorganization, moratorium and other laws affecting the enforcement of creditors' rights generally, (B) general principles of equity;
, regardless of whether such enforcement is considered in a proceeding in equity or at law, and (iiiC) The executionpublic policy considerations underlying the securities laws, delivery and performance to the extent that such public policy considerations limit the enforceability of the provisions of this Agreement by the Seller (x) does not conflict and will not conflict with, does not breach and will not result in a breach of and does not constitute and will not constitute a default (or an event, which with notice or lapse of time or both, would constitute a default) under (A) any terms or provisions of the organizational documents of the Seller, (B) any term or provision of any material agreement, contract, instrument or indenture, that purport to which the Seller is a party or by which the Seller or any of its property is bound, or (C) any law, rule, regulation, order, judgment, writ, injunction or decree of any court or governmental authority having jurisdiction over the Seller or any of its property and (y) does not create or impose and will not result in the creation or imposition of any lien, charge or encumbrance (other than any created hereby in favor of the Purchaser and its assignees) which would have a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loans;
(iv) No consent, approval, authorization or order of, registration or filing with, or notice on behalf of the Seller to any governmental authority or court is required, under federal laws or the laws of the State of New York, provide indemnification for the execution, delivery and performance by the Seller of, or compliance by the Seller with, this Agreement or the consummation by the Seller of any other transaction contemplated hereby and by the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificates;liabilities.
(v) The Seller is not in violation of, and the its execution and delivery of this Agreement by the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect toof, any law, any order or decree of any court or arbiter, or any order order, regulation or regulation demand of any federal, state, municipal state or local governmental agency having jurisdiction over the Seller or its assetsregulatory authority, which violation might have consequences that would violation, in the Seller's good faith and reasonable judgment, is likely to affect materially and adversely affect either the condition (financial or otherwise) or the operation ability of the Seller or its assets or might have consequences that would materially and adversely affect the performance of to perform its obligations and duties hereunder;under this Agreement or the financial condition of the Seller.
(vi) The No litigation is pending with regard to which Seller does not believehas received service of process or, nor does it have any reason or cause to believe, that it cannot perform each and every covenant contained in this Agreement;
(vii) Immediately prior to the sale best of the Mortgage Loans to the Purchaser as herein contemplatedSeller's knowledge, threatened against the Seller was the owner outcome of the related Mortgage and the indebtedness evidenced by the related Mortgage Note, and, upon the payment to the Seller of the Purchase Pricewhich, in the event that Seller's good faith and reasonable judgment, could reasonably be expected to prohibit the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereof;
(viii) There are no actions or proceedings against, or investigations known to it of, the Seller before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans by the Seller or the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by ability of the Seller of to perform its obligations under, or validity or enforceability of, under this Agreement;.
(ix) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;
(xvii) The Seller has not dealt with any broker, investment banker, agent or other person, except for other than the Purchaser or any of its Purchaser, the Underwriters, the Initial Purchasers and their respective affiliates, that may be entitled to any commission or compensation in connection with the sale of the Mortgage Loans (except that an entity that previously financed or the Seller’s ownership consummation of any of the Mortgage Loans may be entitled to a fee to release other transactions contemplated hereby.
(viii) Neither the Seller nor anyone acting on its security behalf has (A) offered, pledged, sold, disposed of or otherwise transferred any Certificate, any interest in any Certificate or any other similar security to any person in any manner, (B) solicited any offer to buy or to accept a pledge, disposition or other transfer of any Certificate, any interest in any Certificate or any other similar security from any person in any manner, (C) otherwise approached or negotiated with respect to any Certificate, any interest in any Certificate or any other similar security with any person in any manner, (D) made any general solicitation by means of general advertising or in any other manner with respect to any Certificate, any interest in any Certificate or any similar security, or (E) taken any other action, that (in the Mortgage Loans, which fee shall have been paid and which security interest shall have been released on or prior to the Closing Date);
(xi) There is no litigation currently pending or, to the best case of any of the Seller’s knowledge without independent investigation, threatened against the Seller that acts described in clauses (A) through (E) above) would reasonably be expected to adversely affect the transfer constitute or result in a violation of the Mortgage Loans, Securities Act or any state securities law relating to or in connection with the issuance of the Certificates or require registration or qualification pursuant to the executionSecurities Act or any state securities law of any Certificate not otherwise intended to be a Registered Certificate. In addition, deliverythe Seller will not act, performance nor has it authorized or enforceability of this Agreementwill it authorize any person to act, or that would result in a material adverse change in the financial condition of the Seller; and
(xii) The information any manner set forth in the applicable part foregoing sentence with respect to any of the Closing Schedule relating Certificates or interests therein. For purposes of this paragraph 4(b)(viii), the term "similar security" shall be deemed to include, without limitation, any security evidencing or, upon issuance, that would have evidenced an interest in the Mortgage Loans or the Other Mortgage Loans or any substantial number thereof.
(ix) Insofar as it relates to the existence Mortgage Loans, the information set forth on pages A-10 through A-11, inclusive, of a Prepayment Charge Annex A to the Prospectus Supplement (as defined in Section 9) (the "Loan Detail") and, to the extent consistent therewith, the information set forth on the diskette attached to the Prospectus Supplement and the accompanying prospectus (the "Diskette"), is complete, true and correct in all material respects at respects. Insofar as it relates to the date Mortgage Loans and/or the Seller and does not represent a restatement or dates respecting which such aggregation of the information is furnished on the Loan Detail, the information set forth in the Prospectus Supplement and each Prepayment Charge is permissible the Memorandum (as defined in Section 9) under the headings "Summary of Series 2002-C1 Transaction--The Mortgage Pool," "--Geographic Concentrations of the Mortgaged Properties," "--Property Types," "--Prepayment or Call Protection Provided by the Mortgage Loans," "--Payment Terms of the Mortgage Loans," "Risk Factors" and enforceable in accordance with its terms upon "Description of the mortgagor’s full Mortgage Pool," set forth on Annex A to the Prospectus Supplement and voluntary principal prepayment under applicable law, except (to the extent that: (1it contains information consistent with that on such Annex A) set forth on the enforceability thereof may be limited by bankruptcyDiskette, insolvency, moratorium, receivership and other similar laws relating to creditors’ rights; (2) the collectability thereof may be limited due to acceleration in connection with does not contain any untrue statement of a foreclosure or other involuntary prepayment; material fact or (3in the case of the Memorandum, when read together with the other information specified therein as being available for review by investors) subsequent changes omit to state any material fact necessary to make the statements therein, in applicable law may limit or prohibit enforceability thereof light of the circumstances under applicable lawwhich they were made, not misleading.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Gmac Commercial Mortgage Securities Inc)
Representations, Warranties and Covenants of the Seller. (a) The Seller hereby represents makes, as of August 27, 1998 (the "Closing Date") (or as of such other date specifically provided in the particular representation or warranty), to and warrants to for the benefit of the Purchaser, and its successors and assigns (including, without limitation, the Depositor, the Trustee and the holders of the Certificates), each of the representations and warranties set forth in EXHIBIT B, with such changes or modifications as may be permitted or required by the Rating Agencies.
(b) In addition, the Seller, as of the date hereof hereof, hereby represents and as of the Closing Datewarrants to, and covenantscovenants with, the Purchaser that:
(i) The Seller is a Delaware corporation corporation, duly organized, validly existing and in good standing under the laws of the State of California, and is in compliance with full corporate power and authority to conduct its business as presently conducted by it the laws of each State in which any Mortgaged Property is located to the extent material necessary to ensure the consummation enforceability of the transactions contemplated herein. The Agreement has been duly authorized, executed and delivered by the Seller. The Seller had the full corporate power and authority to own the each Mortgage Loans Loan and to transfer and convey the Mortgage Loans to the Purchaser and has the full corporate power and authority to execute and deliver, engage in the transactions contemplated by, and perform and observe the terms and conditions of its obligations under this Agreement;.
(ii) The execution and delivery of this Agreement by the Seller, and the performance and compliance with the terms of this Agreement by the Seller, will not violate the Seller's organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets, in each case which materially and adversely affect the ability of the Seller to carry out the transactions contemplated by this Agreement.
(iii) The Seller has the full power and authority to enter into and consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement, and this .
(iv) This Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a legalvalid, valid legal and binding obligation of the Seller, enforceable against it the Seller in accordance with its the terms except as the enforceability thereof may be limited by hereof, subject to (A) applicable bankruptcy, insolvency or reorganization or by insolvency, reorganization, moratorium and other laws affecting the enforcement of creditors' rights generally, (B) general principles of equity;
, regardless of whether such enforcement is considered in a proceeding in equity or at law, and (iiiC) The executionpublic policy considerations underlying the securities laws, delivery and performance to the extent that such public policy considerations limit the enforceability of the provisions of this Agreement by the Seller (x) does not conflict and will not conflict with, does not breach and will not result in a breach of and does not constitute and will not constitute a default (or an event, which with notice or lapse of time or both, would constitute a default) under (A) any terms or provisions of the organizational documents of the Seller, (B) any term or provision of any material agreement, contract, instrument or indenture, that purport to which the Seller is a party or by which the Seller or any of its property is bound, or (C) any law, rule, regulation, order, judgment, writ, injunction or decree of any court or governmental authority having jurisdiction over the Seller or any of its property and (y) does not create or impose and will not result in the creation or imposition of any lien, charge or encumbrance (other than any created hereby in favor of the Purchaser and its assignees) which would have a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loans;
(iv) No consent, approval, authorization or order of, registration or filing with, or notice on behalf of the Seller to any governmental authority or court is required, under federal laws or the laws of the State of New York, provide indemnification for the execution, delivery and performance by the Seller of, or compliance by the Seller with, this Agreement or the consummation by the Seller of any other transaction contemplated hereby and by the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificates;liabilities.
(v) The Seller is not in violation of, and the its execution and delivery of this Agreement by the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect toof, any law, any order or decree of any court or arbiter, or any order order, regulation or regulation demand of any federal, state, municipal state or local governmental agency having jurisdiction over the Seller or its assetsregulatory authority, which violation might have consequences that would violation, in the Seller's good faith and reasonable judgment, is likely to affect materially and adversely affect either the condition (financial or otherwise) or the operation ability of the Seller or its assets or might have consequences that would materially and adversely affect the performance of to perform its obligations and duties hereunder;under this Agreement or the financial condition of the Seller.
(vi) The No litigation is pending with regard to which Seller does not believehas received service of process or, nor does it have any reason or cause to believe, that it cannot perform each and every covenant contained in this Agreement;
(vii) Immediately prior to the sale best of the Mortgage Loans to the Purchaser as herein contemplatedSeller's knowledge, threatened against the Seller was the owner outcome of the related Mortgage and the indebtedness evidenced by the related Mortgage Note, and, upon the payment to the Seller of the Purchase Pricewhich, in the event that Seller's good faith and reasonable judgment, could reasonably be expected to prohibit the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereof;
(viii) There are no actions or proceedings against, or investigations known to it of, the Seller before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans by the Seller or the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by ability of the Seller of to perform its obligations under, or validity or enforceability of, under this Agreement;.
(ix) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;
(xvii) The Seller has not dealt with any broker, investment banker, agent or other person, except for other than the Purchaser or any of its Purchaser, the Underwriters, the Initial Purchasers and their respective affiliates, that may be entitled to any commission or compensation in connection with the sale of the Mortgage Loans (except that an entity that previously financed or the Seller’s ownership consummation of any of the Mortgage Loans may be entitled to a fee to release its security interest in the Mortgage Loans, which fee shall have been paid and which security interest shall have been released on or prior to the Closing Date);other transactions contemplated hereby.
(xiviii) There No consent, approval, authorization or order of, registration or filing with, or notice to, any governmental authority or court is no litigation currently pending orrequired, under federal or state law (including, with respect to the best of the Seller’s knowledge without independent investigationany bulk sale laws), threatened against the Seller that would reasonably be expected to adversely affect the transfer of the Mortgage Loans, the issuance of the Certificates or for the execution, delivery, delivery and performance of or enforceability of compliance by the Seller with this Agreement, or that the consummation by the Seller of any transaction contemplated hereby, other than (1) such consents, approvals, authorizations, qualifications, registrations, filings or notices as have been obtained or made and (2) where the lack of such consent, approval, authorization, qualification, registration, filing or notice would result in not have a material adverse change in effect on the financial condition performance by the Seller under this Agreement.
(c) Upon discovery by any of the Seller; and
(xii) The information parties hereto of a breach of any of the representations and warranties made pursuant to and set forth in subsection (b) above which materially and adversely -3- 1998-C2 ML Trust Supplemental Agreement affects the applicable part interests of the Closing Schedule relating Purchaser or its successors or assigns or a breach of any of the representations and warranties made pursuant to subsection (a) above and set forth in EXHIBIT B which materially and adversely affects the value of any Mortgage Loan or the interests therein of the Purchaser or its successors and assigns (including, without limitation the Depositor, the Trustee and the holders of the Certificates), the party discovering such breach shall give prompt written notice to the existence other party hereto or if this Agreement is assigned, to such assignee. The representations, warranties and covenants set forth in this Section 2(a) shall replace and amend and restate in their entirety the representations, warranties and covenants of a Prepayment Charge is complete, true and correct the Seller set forth in all material respects at Section 4.1(a) of the date or dates respecting which such information is furnished and each Prepayment Charge is permissible and enforceable in accordance with its terms upon the mortgagor’s full and voluntary principal prepayment under applicable law, except ML Trust Purchase Agreement to the extent that: (1) they relate to the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ rights; (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 under applicable lawMortgage Loans.
Appears in 1 contract
Samples: Supplemental Agreement (Gmac Commercial Mortgage Securities Inc)
Representations, Warranties and Covenants of the Seller. The Seller hereby represents and warrants to the Purchaser, as of the date hereof and as of the Closing Date, and covenants, that:
(i) The Seller is duly organized, validly existing and in good standing as a Delaware corporation under the laws of the State of California with full corporate power and authority to conduct its business as presently conducted by it to the extent material to the consummation of the transactions contemplated herein. The Agreement Seller has been duly authorized, executed and delivered by the Seller. The Seller had the full corporate power and authority to own the Mortgage Loans and to transfer and convey the Mortgage Loans to the Purchaser and has the full corporate power and authority to execute and deliver, engage in the transactions contemplated by, and perform and observe the terms and conditions of this Agreement;.
(ii) The Seller has duly authorized the execution, delivery and performance of this Agreement, has duly executed and delivered this Agreement, and this Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a legal, valid and binding obligation of the Seller, enforceable against it in accordance with its terms except as the enforceability thereof may be limited by bankruptcy, insolvency or reorganization or by general principles of equity;.
(iii) The execution, delivery and performance of this Agreement by the Seller (x) does not conflict and will not conflict with, does not breach and will not result in a breach of and does not constitute and will not constitute a default (or an event, which with notice or lapse of time or both, would constitute a default) under (A) any terms or provisions of the organizational documents articles of incorporation or by-laws of the Seller, (B) any term or provision of any material agreement, contract, instrument or indenture, to which the Seller is a party or by which the Seller or any of its property is bound, bound or (C) any law, rule, regulation, order, judgment, writ, injunction or decree of any court or governmental authority having jurisdiction over the Seller or any of its property and (y) does not create or impose and will not result in the creation or imposition of any lien, charge or encumbrance (other than any created hereby in favor of the Purchaser and its assignees) which would would
have a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loans;.
(iv) No consent, approval, authorization or order of, registration or filing with, or notice on behalf of the Seller to any governmental authority or court is required, under federal laws or the laws of the State of New YorkCalifornia, for the execution, delivery and performance by the Seller of, or compliance by the Seller with, this Agreement or the consummation by the Seller of any other transaction contemplated hereby and by the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificates;.
(v) This Agreement does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained herein not misleading. The written statements, reports and other documents prepared and furnished or to be prepared and furnished by the Seller pursuant to this Agreement or in connection with the transactions contemplated hereby taken in the aggregate do not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein not misleading.
(vi) The Seller is not in violation of, and the execution and delivery of this Agreement by the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over the Seller or its assets, which violation might have consequences that would materially and adversely affect the condition (financial or otherwise) or the operation of the Seller or its assets or might have consequences that would materially and adversely affect the performance of its obligations and duties hereunder;.
(vivii) The Seller 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;.
(viiviii) Immediately prior to the sale of the Mortgage Loans to the Purchaser as herein contemplated, the Seller was will be the owner of the related Mortgage and the indebtedness evidenced by the related Mortgage Note, and, upon the payment to the Seller of the Mortgage Loan Purchase Price, in the event that the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereof;.
(viiiix) There are no actions or proceedings against, or investigations known to it of, the Seller before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans by the Seller or the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by the Seller of its obligations under, or validity or enforceability of, this Agreement;.
(ixx) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;provisions.
(xxi) The [intentionally omitted]
(xii) Neither the Seller nor the Originator has not dealt with any broker, investment banker, agent or other person, except for the Purchaser or any of its affiliates, that may be entitled to any commission or compensation in connection with the sale of the Mortgage Loans (except that an entity that previously financed the Seller’s 's ownership of the Mortgage Loans may be entitled to a fee to release its security interest in the Mortgage Loans, which fee shall have been paid and which security interest shall have been released on or prior to the Closing Date);.
(xixiii) There is no litigation currently pending or, to the best of the Seller’s 's knowledge without independent investigation, threatened against the Seller or the Originator that would reasonably be expected to adversely affect the transfer of the Mortgage Loans, the issuance of the Certificates or the execution, delivery, performance or enforceability of this Agreement, or that would result in a material adverse change in the financial condition of the Seller; and
(xii) The information set forth in the applicable part of the Closing Schedule relating to the existence of a Prepayment Charge 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 upon the mortgagor’s full and voluntary principal prepayment under applicable law, 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; (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 under applicable law.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (New Century Home Equity Loan Trust Series 2003-3)
Representations, Warranties and Covenants of the Seller. (a) The Seller hereby represents and warrants to the Originator and the Purchaser, as of the date hereof and as of the Closing Date, and covenants, that:
(i) The Seller is duly organized, validly existing and in good standing as a Delaware corporation under the laws of the State of California with full corporate power and authority to conduct its business as presently conducted by it to the extent material to the consummation of the transactions contemplated herein. The Agreement Seller has been duly authorized, executed and delivered by the Seller. The Seller had the full corporate power and authority to own the Mortgage Loans and to transfer and convey the Mortgage Loans to the Purchaser and has the full corporate power and authority to execute and deliver, engage in the transactions contemplated by, and perform and observe the terms and conditions of this Agreement;.
(ii) The Seller has duly authorized the execution, delivery and performance of this Agreement, has duly executed and delivered this Agreement, and this Agreement, assuming due authorization, execution and delivery by the Originator and the Purchaser, constitutes a legal, valid and binding obligation of the Seller, enforceable against it in accordance with its terms except as the enforceability thereof may be limited by bankruptcy, insolvency or reorganization or by general principles of equity;.
(iii) The execution, delivery and performance of this Agreement by the Seller (x) does not conflict and will not conflict with, does not breach and will not result in a breach of and does not constitute and will not constitute a default (or an event, which with notice or lapse of time or both, would constitute a default) under (A) any terms or provisions of the organizational documents articles of incorporation or by-laws of the Seller, (B) any term or provision of any material agreement, contract, instrument or indenture, to which the Seller is a party or by which the Seller or any of its property is bound, bound or (C) any law, rule, regulation, order, judgment, writ, injunction or decree of any court or governmental authority having jurisdiction over the Seller or any of its property and (y) does not create or impose and will not result in the creation or imposition of any lien, charge or encumbrance (other than any created hereby in favor of the Purchaser and its assignees) which would have a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loans;.
(iv) No consent, approval, authorization or order of, registration or filing with, or notice on behalf of the Seller to any governmental authority or court is required, under federal laws or the laws of the State of New YorkCalifornia, for the execution, delivery and performance by the Seller of, or compliance by the Seller with, this Agreement or the consummation by the Seller of any other transaction contemplated hereby and by the Pooling and Servicing Agreement; provided, however, that the Seller makes no representation or warranty regarding federal or state securities laws in connection with the sale or distribution of the Certificates;.
(v) This Agreement does not contain any untrue statement of material fact or omit to state a material fact necessary to make the statements contained herein not misleading. The written statements, reports and other documents prepared and furnished or to be prepared and furnished by the Seller pursuant to this Agreement or in connection with the transactions contemplated hereby taken in the aggregate do not contain any untrue statement of material fact or omit to state a material fact necessary to make the statements contained therein not misleading.
(vi) The Seller is not in violation of, and the execution and delivery of this Agreement by the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over the Seller or its assets, which violation might have consequences that would materially and adversely affect the condition (financial or otherwise) or the operation of the Seller or its assets or might have consequences that would materially and adversely affect the performance of its obligations and duties hereunder;.
(vivii) The Seller 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;.
(viiviii) Immediately prior to the sale of the Mortgage Loans to the Purchaser as herein contemplated, the Seller was the owner of the related Mortgage and the indebtedness evidenced by the related Mortgage Note, and, upon the payment to the Seller of the Purchase Price, in the event that the Seller retains or has retained record title, the Seller shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser as the owner thereof from and after the date hereof;.
(viiiix) There are no actions or proceedings against, or investigations known to it of, the Seller before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans by the Seller or the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by the Seller of its obligations under, or validity or enforceability of, this Agreement;.
(ixx) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions in effect in any relevant jurisdiction, except any as may have been complied with;provisions.
(xxi) [intentionally omitted]
(xii) The Seller has not dealt with any broker, investment banker, agent or other person, except for the Purchaser or any of its affiliates, that may be entitled to any commission or compensation in connection with the sale of the Mortgage Loans (except that an entity that previously financed the Seller’s 's ownership of the Mortgage Loans may be entitled to a fee to release its security interest in the Mortgage Loans, which fee shall have been paid and which security interest shall have been released on or prior to the Closing Date);.
(xixiii) There is no litigation currently pending or, to the best of the Seller’s 's knowledge without independent investigation, threatened against the Seller that would reasonably be expected to adversely affect the transfer of the Mortgage Loans, the issuance of the Certificates or the execution, delivery, performance or enforceability of this Agreement, or that would result in a material adverse change in the financial condition of the Seller; and.
(xiib) The information set forth in Originator hereby represents and warrants to the applicable part Seller and the Purchaser, as of the date hereof and as of the Closing Schedule relating Date, and covenants, that:
(i) The Originator is duly organized, validly existing and in good standing as a corporation under the laws of the State of California with full corporate power and authority to conduct its business as presently conducted by it to the existence extent material to the consummation of the transactions contemplated herein. The Originator had the full corporate power and authority to own the Mortgage Loans and to transfer and convey the Mortgage Loans to the Seller and has the full corporate power and authority to execute and deliver, engage in the transactions contemplated by, and perform and observe the terms and conditions of this Agreement.
(ii) The Originator has duly authorized the execution, delivery and performance of this Agreement, has duly executed and delivered this Agreement, and this Agreement, assuming due authorization, execution and delivery by the Seller and the Purchaser, constitutes a Prepayment Charge is completelegal, true valid and correct in all material respects at binding obligation of the date or dates respecting which such information is furnished and each Prepayment Charge is permissible and Originator, enforceable against it in accordance with its terms upon the mortgagor’s full and voluntary principal prepayment under applicable law, except to the extent that: (1) the as enforceability thereof may be limited by bankruptcy, insolvencyinsolvency or reorganization or by general principles of equity.
(iii) The execution, moratoriumdelivery and performance of this Agreement by the Originator (x) does not conflict and will not conflict with, receivership does not breach and will not result in a breach of and does not constitute and will not constitute a default (or an event, which with notice or lapse of time or both, would constitute a default) under (A) any terms or provisions of the articles of incorporation or by-laws of the Originator, (B) any term or provision of any material agreement, contract, instrument or indenture, to which the Originator is a party or by which the Originator or any of its property is bound or (C) any law, rule, regulation, order, judgment, writ, injunction or decree of any court or governmental authority having jurisdiction over the Originator or any of its property and (y) does not create or impose and will not result in the creation or imposition of any lien, charge or encumbrance which would have a material adverse effect upon the Mortgage Loans or any documents or instruments evidencing or securing the Mortgage Loans.
(iv) No consent, approval, authorization or order of, registration or filing with, or notice on behalf of the Originator to any governmental authority or court is required, under federal laws or the laws of the State of California, for the execution, delivery and performance by the Originator of, or compliance by the Originator with, this Agreement or the consummation by the Originator of any other similar transaction contemplated hereby and by the Pooling and Servicing Agreement; provided, however, that the Originator makes no representation or warranty regarding federal or state securities laws relating to creditors’ rights; (2) the collectability thereof may be limited due to acceleration in connection with the sale or distribution of the Certificates.
(v) In this Agreement the Originator has not made any untrue statement of material fact or omit to state a foreclosure material fact necessary to make the statements contained herein not misleading. The written statements, reports and other documents prepared and furnished or to be prepared and furnished by the Originator pursuant to this Agreement or in connection with the transactions contemplated hereby taken in the aggregate do not contain any untrue statement of material fact or omit to state a material fact necessary to make the statements contained therein not misleading.
(vi) The Originator is not in violation of, and the execution and delivery of this Agreement by the Originator and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over the Originator or its assets, which violation might have consequences that would materially and adversely affect the condition (financial or otherwise) or the operation of the Originator or its assets or might have consequences that would materially and adversely affect the performance of its obligations and duties hereunder.
(vii) The Originator 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 Originator unable to comply with HUD eligibility requirements or that would require notification to HUD.
(viii) The Originator 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.
(ix) Immediately prior to the sale of the Mortgage Loans to the Seller, the Originator was the owner of the related Mortgage and the indebtedness evidenced by the related Mortgage Note, and, upon the payment to the Originator of the Purchase Price, in the event that the Originator retains or has retained record title, the Originator shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Seller as the owner thereof from and after the date hereof.
(x) There are no actions or proceedings against, or investigations known to it of, the Originator before any court, administrative or other involuntary prepayment; tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans by the Originator or the consummation of the transactions contemplated by this Agreement or (3C) subsequent changes that might prohibit or materially and adversely affect the performance by the Originator of its obligations under, or validity or enforceability of, this Agreement.
(xi) The consummation of the transactions contemplated by this Agreement are in applicable law the ordinary course of business of the Originator, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Originator are not subject to the bulk transfer or any similar statutory provisions.
(xii) The information delivered by the Originator to the Seller with respect to the Originator's loan loss, foreclosure and delinquency experience on mortgage loans is true and correct in all material respects.
(xiii) The Originator has not dealt with any broker, investment banker, agent or other person, except for the Seller or any of its affiliates, that may limit be entitled to any commission or prohibit compensation in connection with the sale of the Mortgage Loans (except that an entity that previously financed the Originator's ownership of the Mortgage Loans may be entitled to a fee to release its security interest in the Mortgage Loans, which fee shall have been paid and which security interest shall have been released on or prior to the Closing Date).
(xiv) There is no litigation currently pending or, to the best of the Originator's knowledge without independent investigation, threatened against the Originator that would reasonably be expected to adversely affect the transfer of the Mortgage Loans, the issuance of the Certificates or the execution, delivery, performance or enforceability thereof under applicable lawof this Agreement, or that would result in a material adverse change in the financial condition of the Originator.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Salomon Brothers Mort Sec Vii Inc Fl Rte Cert Se 1999-Nc4)
