Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, warrants and covenants to the Trustee, for its own benefit and the benefit of the Certificateholders, and to the Fiscal Agent, the Master Servicer and the Special Servicer, as of the Closing Date, that: (i) The Depositor is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, and the Depositor has taken all necessary corporate action to authorize the execution, delivery and performance of this Agreement by it, and has the power and authority to execute, deliver and perform this Agreement and all the transactions contemplated hereby, including, but not limited to, the power and authority to sell, assign and transfer the Mortgage Loans in accordance with this Agreement; (ii) Assuming the due authorization, execution and delivery of this Agreement by each other party hereto, this Agreement and all of the obligations of the Depositor hereunder are the legal, valid and binding obligations of the Depositor, enforceable against the Depositor in accordance with the terms of this Agreement, except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally, and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law); (iii) The execution and delivery of this Agreement and the performance of its obligations hereunder by the Depositor will not conflict with any provisions of any law or regulations to which the Depositor is subject, or conflict with, result in a breach of or constitute a default under any of the terms, conditions or provisions of the certificate of incorporation or the by-laws of the Depositor or any indenture, agreement or instrument to which the Depositor is a party or by which it is bound, or any order or decree applicable to the Depositor, or result in the creation or imposition of any lien on any of the Depositor's assets or property, which would materially and adversely affect the ability of the Depositor to carry out the transactions contemplated by this Agreement; the Depositor has obtained any consent, approval, authorization or order of any court or governmental agency or body required for the execution, delivery and performance by the Depositor of this Agreement; (iv) There is no action, suit or proceeding pending or, to the Depositor's knowledge, threatened against the Depositor in any court or by or before any other governmental agency or instrumentality which would materially and adversely affect the validity of the Mortgage Loans or the ability of the Depositor to carry out the transactions contemplated by this Agreement; and (v) The Depositor is the lawful owner of the Mortgage Loans free and clear of all liens, claims, encumbrances and other interests with the full right to transfer the Mortgage Loans to the Trust and the Mortgage Loans have been validly transferred to the Trust. The representations, warranties and covenants of the Depositor set forth in this Section 2.04 shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any breach of any of such representations, warranties and covenants, the party discovering such breach shall give prompt written notice thereof to the other parties.
Appears in 2 contracts
Sources: Pooling and Servicing Agreement (Greenwich Capital Comm Mort Pass THR Certs Ser 2003-C2), Pooling and Servicing Agreement (Greenwich Capital Comm Mort Pass THR Certs Ser 2003-C2)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, warrants and covenants to the Trustee, for its own benefit and the benefit of the Certificateholders, Certificateholders and to the Fiscal AgentMaster Servicer, the Master Special Servicer and the Special ServicerCompanion Loan Noteholders, as of the Closing Date, that:
(i) The Depositor is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, and the Depositor has taken all necessary corporate action to authorize the execution, delivery and performance of this Agreement by it, and has the power and authority to execute, deliver and perform this Agreement and all the transactions contemplated hereby, including, but not limited to, the power and authority to sell, assign and transfer the Mortgage Loans in accordance with this Agreement;
(ii) Assuming the due authorization, execution and delivery of this Agreement by each other party hereto, this Agreement and all of the obligations of the Depositor hereunder are the legal, valid and binding obligations of the Depositor, enforceable against the Depositor in accordance with the terms of this Agreement, except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally, and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law);
(iii) The execution and delivery of this Agreement and the performance of its obligations hereunder by the Depositor will not conflict with any provisions of any law or regulations to which the Depositor is subject, or conflict with, result in a breach of or constitute a default under any of the terms, conditions or provisions of the certificate of incorporation or the by-laws of the Depositor or any indenture, agreement or instrument to which the Depositor is a party or by which it is bound, or any order or decree applicable to the Depositor, or result in the creation or imposition of any lien on any of the Depositor's assets or property, which would materially and adversely affect the ability of the Depositor to carry out the transactions contemplated by this Agreement; the Depositor has obtained any consent, approval, authorization or order of any court or governmental agency or body required for the execution, delivery and performance by the Depositor of this Agreement;
(iv) There is no action, suit or proceeding pending or, to the Depositor's knowledge, threatened against the Depositor in any court or by or before any other governmental agency or instrumentality which would materially and adversely affect the validity of the Mortgage Loans or the ability of the Depositor to carry out the transactions contemplated by this Agreement; and
(v) The Depositor is the lawful owner of the Mortgage Loans free and clear of all liens, claims, encumbrances and other interests with the full right to transfer the Mortgage Loans to the Trust and the Mortgage Loans have been validly transferred to the Trust. The representations, warranties and covenants of the Depositor set forth in this Section 2.04 shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any breach of any of such representations, warranties and covenants, the party discovering such breach shall give prompt written notice thereof to the other parties.
Appears in 2 contracts
Sources: Pooling and Servicing Agreement (Greenwich Capital Commercial Funding Corp. Commercial Mortgage Trust 2006-Gg7), Pooling and Servicing Agreement (Greenwich Capital Commercial Funding Corp)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, represents and warrants and covenants to the TrusteeServicers, for its own benefit the Custodian and the benefit of the Certificateholders, and to the Fiscal Agent, the Master Servicer and the Special ServicerTrustee as follows, as of the Closing Date, thatdate hereof:
(i) The Depositor is a corporation duly organized, organized and is validly existing and as a limited liability company in good standing under the laws of the State of DelawareDelaware and has full power and authority (corporate and other) necessary to own or hold its properties and to conduct its business as now conducted by it and to enter into and perform its obligations under this Agreement and the Sale Agreement.
(ii) The Depositor has the full corporate power and authority to execute, deliver and perform, and to enter into and consummate the Depositor transactions contemplated by, this Agreement and each Sale Agreement and has taken duly authorized, by all necessary corporate action to authorize on its part, the execution, delivery and performance of this Agreement by it, and has the power each Sale Agreement; and authority to execute, deliver and perform this Agreement and all the transactions contemplated herebyeach Sale Agreement, including, but not limited to, the power and authority to sell, assign and transfer the Mortgage Loans in accordance with this Agreement;
(ii) Assuming assuming the due authorization, execution and delivery of this Agreement hereof by each the other party parties hereto, this Agreement and all of the obligations of the Depositor hereunder are the constitutes a legal, valid and binding obligations obligation of the Depositor, enforceable against the Depositor in accordance with the terms of this Agreementits terms, except subject, as such enforcement may be limited by to enforceability, to (i) bankruptcy, insolvency, reorganization or reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally, generally and by (ii) general principles of equity (equity, regardless of whether such enforceability enforcement is considered sought in a proceeding in equity or at law);.
(iii) The execution and delivery of this Agreement and the performance of its obligations hereunder each Sale Agreement by the Depositor, the consummation of the transactions contemplated by this Agreement and the Sale Agreement, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Depositor and will not conflict with any provisions of any law or regulations to which the Depositor is subject, or conflict with, (A) result in a material breach of any term or constitute a default under any provision of the terms, conditions charter or provisions of the certificate of incorporation or the by-laws of the Depositor or (B) materially conflict with, result in a violation or acceleration of, or result in a material default under, the terms of any indenture, other material agreement or instrument to which the Depositor is a party or by which it is boundmay be bound or (C) constitute a material violation of any statute, or any order or decree regulation applicable to the Depositor of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Depositor; and the Depositor is not in breach or violation of any material indenture or other material agreement or instrument, or result in the creation or imposition violation of any lien on statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Depositor's ability to perform or meet any of its obligations under this Agreement.
(iv) No litigation is pending, or, to the best of the Depositor's assets or propertyknowledge, which threatened, against the Depositor that would materially and adversely affect the execution, delivery or enforceability of this Agreement and each Sale Agreement or the ability of the Depositor to carry out perform its obligations under this Agreement and each Sale Agreement in accordance with the transactions contemplated by this Agreement; the Depositor has obtained any terms hereof.
(v) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Depositor of, or compliance by the Depositor with, this Agreement and each Sale Agreement or the consummation of this Agreement;
(iv) There the transactions contemplated hereby, or if any such consent, approval, authorization or order is no actionrequired, suit or proceeding pending or, the Depositor has obtained the same. The Depositor hereby represents and warrants to the Depositor's knowledgeTrustee with respect to each Mortgage Loan as of the Closing Date, threatened against and following the Depositor in any court or by or before any other governmental agency or instrumentality which would materially and adversely affect the validity transfer of the Mortgage Loans to it by the Sellers, the Depositor had good title to the Mortgage Loans and the Mortgage Notes were subject to no offsets, claims, liens, mortgage, pledge, charge, security interest, defenses or counterclaims.
(i) The representations and warranties of each Seller with respect to the ability Mortgage Loans contained in the applicable Sale Agreement were made as of the Closing Date. The Trustee acknowledges that the Depositor shall have no obligation or liability with respect to carry out any breach of any representation or warranty with respect to the transactions contemplated by this Agreement; andMortgage Loans (except as set forth in Section 2.03(a)(v)) under any circumstances.
(vii) The Depositor makes the following representations and warranties to the parties hereto as to the Mortgage Loans on which the Trustee is deemed to have relied in acquiring the lawful owner Mortgage Loans. Such representations and warranties speak as of the Closing Date, but shall survive until the termination of this Agreement. Such representations and warranties shall not be waived by any of the parties to this Agreement:
(A) This Agreement creates a valid and continuing security interest (as defined in the Uniform Commercial Code as in force in the relevant jurisdiction) in the Mortgage Loans in favor of the Trustee, which security interest is prior to all other liens, and is enforceable as such as against creditors of and purchasers from the Depositor.
(B) The Mortgage Loans constitute "instruments" within the meaning of the Uniform Commercial Code as in force in the relevant jurisdiction.
(C) The Depositor owns and has good and marketable title to the Mortgage Loans free and clear of any lien, claim or encumbrance of any Person.
(D) The Depositor has received all liens, claims, encumbrances consents and other interests with approvals required by the full right to transfer terms of the Mortgage Loans to the Trust and sale of the Mortgage Loans hereunder to the Trustee.
(E) The Depositor has caused or will have caused, within ten days, the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under applicable law in order to perfect the security interest in the Mortgage Loans granted to the Trustee hereunder.
(F) Other than the security interest granted to the Trustee pursuant to this Agreement, the Depositor has not pledged, assigned, sold, granted a security interest in, or otherwise conveyed any of the Mortgage Loans. The Depositor has not authorized the filing of and is not aware of any financing statements against the Depositor that include a description of collateral covering the Mortgage Loans other than any financing statement relating to the security interest granted to the Trustee hereunder or that has been terminated. Debtor is not aware of any judgment or tax lien filings against it.
(G) The Custodian has in its possession all original copies of the Mortgage Notes that constitute or evidence the Mortgage Loans. The Mortgage Notes that constitute or evidence the Mortgage Loans do not have any marks or notations indicating that they have been validly transferred pledged, assigned or otherwise conveyed to any Person other than the Trustee. All financing statements filed or to be filed against the Depositor in favor of the Trustee in connection herewith describing the Mortgage Loans contain a statement to the Trust. The representations, warranties and covenants following effect: "A purchase of or security interest in any collateral described in this financing statement will violate the rights of the Depositor set forth in this Section 2.04 shall survive the execution secured party as more fully described in, and delivery of this Agreement and shall inure subject to the benefit terms of, the related transaction documents."
(iii) The Depositor hereby covenants to maintain the perfection and priority of the Persons for whose benefit they were made for so long as security interest of the Trust Fund remains in existence. Trustee created by this Agreement.
(c) Upon discovery by any party hereto of any the Depositor, the Servicers or the Trustee of a breach of any of such representationsthe representations and warranties of a Seller under the related Sale Agreement that adversely and materially affects the value of the related Mortgage Loan, warranties and covenantsPrepayment Charges or the interests of the Certificateholders, the party discovering such breach shall give prompt written notice thereof to the other parties. Within 90 days of the discovery of such breach of any representation or warranty of the applicable Seller under the related Sale Agreement, the Seller, pursuant to the related Sale Agreement, is obligated to either (a) cure such breach in all material respects, (b) repurchase such Mortgage Loan or any property acquired in respect thereof from the Trustee at the Purchase Price or (c) within the two year period following the Closing Date, substitute a Replacement Mortgage Loan for the affected Mortgage Loan. In the event of discovery of a breach of any representation and warranty of a Seller, the Trustee shall enforce its rights under the related Sale Agreement for the benefit of Certificateholders. In the event that such breach relates solely to the unenforceability of a Prepayment Charge, amounts received in respect of such indemnity up to the amount of such Prepayment Charge shall be distributed pursuant to Section 4.04(b)(i). Any such substitution of a Mortgage Loan shall not be effected prior to the additional delivery to the Custodian of a Request for Release substantially in the form of Exhibit I and shall not be effected unless it is within two years of the Startup Day. As provided in the Sale Agreements, the applicable Seller indemnifies and holds the Trust Fund, the Trustee, the Depositor, the Custodian, the Servicers and each Certificateholder harmless against any and all taxes, claims, losses, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, fees and expenses that the Trust Fund, the Trustee, the Depositor, the Custodian, the Servicers and any Certificateholder may sustain in connection with any actions of the Seller relating to a repurchase of a Mortgage Loan other than in compliance with the terms of the related Sale Agreement, to the extent that any such action causes (i) any federal or state tax to be imposed on the Trust Fund or any REMIC provided for herein, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup day" under Section 860G(d)(1) of the Code, or (ii) any REMIC created hereunder to fail to qualify as a REMIC at any time that any Certificate is outstanding. In furtherance of the foregoing, the Sale Agreements provide that if the applicable Seller is not a member of MERS and repurchases a Mortgage Loan which is registered on the MERS System, the Seller, at its own expense and without any right of reimbursement, shall cause MERS to execute and deliver an assignment of the Mortgage in recordable form to transfer the Mortgage from MERS to the Seller and shall cause such Mortgage to be removed from registration on the MERS System in accordance with MERS' rules and regulations. With respect to any Mortgage Loan repurchased by the Depositor pursuant to this Agreement, or by a Seller pursuant to the Sale Agreements, the principal portion of the funds received by the applicable Servicer in respect of such repurchase of a Mortgage Loan will be considered a Principal Prepayment and shall be deposited by the Servicer in the Servicer Collection Account pursuant to Section 3.05 and the Servicer shall notify the Trustee of its receipt of the same. The Custodian, upon written receipt of notice from the Servicer of its receipt of the full amount of the Purchase Price for a Deleted Mortgage Loan, or upon receipt of the Mortgage File for a Replacement Mortgage Loan substituted for a Deleted Mortgage Loan, shall release or cause to be released and the Trustee shall reassign to the Depositor or the Seller, as applicable, the related Mortgage File for the Deleted Mortgage Loan and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation or warranty, as shall be necessary to vest in such party or its designee or assignee title to any Deleted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Depositor or the Seller, as applicable, and the Custodian shall have no further responsibility with respect to the Mortgage File relating to such Deleted Mortgage Loan. With respect to each Replacement Mortgage Loan to be delivered to the Custodian pursuant to the terms of this Article II in exchange for a Deleted Mortgage Loan: (i) the Depositor or the applicable Seller (pursuant to the related Sale Agreement), as applicable, must deliver to the Custodian the Mortgage File for the Replacement Mortgage Loan containing the documents set forth in Section 2.01 along with a written certification certifying as to the delivery of such Mortgage File and containing the granting language set forth in Section 2.01; and (ii) the Depositor will be deemed to have made, with respect to such Replacement Mortgage Loan, each of the representations and warranties made by it with respect to the related Deleted Mortgage Loan. The Custodian shall review the Mortgage File with respect to each Replacement Mortgage Loan and certify to the Depositor that all documents required by Section 2.01 have been executed and received. For any month in which a Seller substitutes one or more Replacement Mortgage Loans for one or more Deleted Mortgage Loans, the Seller, pursuant to the related Sale Agreement, will determine the amount (if any) by which the aggregate principal balance of all such Replacement Mortgage Loans as of the date of substitution and the aggregate Prepayment Charges with respect to such Replacement Mortgage Loans is less than the aggregate Stated Principal Balance (after application of the principal portion of the Scheduled Payment due in the month of substitution) and aggregate Prepayment Charges of all such Deleted Mortgage Loans. Pursuant to the Sale Agreement, an amount equal to the aggregate of the deficiencies described in the preceding sentence (such amount, the "Substitution Adjustment Amount") plus an amount equal to any unreimbursed costs, penalties and/or damages incurred by the Trust Fund in connection with any violation relating to such Deleted Mortgage Loan of any predatory or abusive lending law shall be remitted by the Seller to the applicable Servicer for deposit into the Servicer Collection Account on the Determination Date for the Distribution Date relating to the Prepayment Period during which the related Mortgage Loan became required to be purchased or replaced hereunder. Notwithstanding any other provision of this Agreement, the right to substitute Mortgage Loans pursuant to this Article II shall be subject to the additional limitations that no substitution of a Replacement Mortgage Loan for a Deleted Mortgage Loan shall be made unless the Trustee shall have received an Opinion of Counsel (at the expense of the party seeking to make the substitution) that, under current law, such substitution will not (A) affect adversely the status of any REMIC established hereunder as a REMIC, or of the related "regular interests" as "regular interests" in any such REMIC, or (B) cause any such REMIC to engage in a "prohibited transaction" or prohibited contribution pursuant to the REMIC Provisions. Each Servicer shall cause the Mortgage Loan Schedule to be amended in accordance with the terms of this Agreement base on information provided to such Servicer. The Depositor shall give or cause to be given written notice to the Certificateholders that such substitution has taken place, shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Replacement Mortgage Loan or Replacement Mortgage Loans and shall deliver a copy of such amended Mortgage Loan Schedule to each Servicer and the Trustee. Upon such substitution by a Seller, such Replacement Mortgage Loan or Replacement Mortgage Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and the related Sale Agreement, including all applicable representations and warranties thereof included in the related Sale Agreement as of the date of substitution.
(d) It is understood and agreed that the representations, warranties and indemnification (i) set forth in this Section 2.03 and (ii) of the Sellers and the Depositor set forth in the Sale Agreements and assigned to the Trustee by the Depositor hereunder shall each survive delivery of the Mortgage Files and the Assignment of Mortgage of each Mortgage Loan to the Trustee and shall continue throughout the term of this Agreement.
(e) The Depositor shall deliver a copy of the Mortgag
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Wachovia Mortgage Loan Trust, Series 2006-Alt1)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, represents and warrants and covenants to the TrusteeServicer, for its own benefit the Trustee and the benefit of the Certificateholders, and to the Fiscal Agent, the Master Servicer and the Special ServicerNIMs Insurer as follows, as of the Closing Date, thatdate hereof:
(i) The Depositor is duly organized and is validly existing as a corporation duly organized, validly existing and in good standing under the laws of the State of DelawareDelaware and has full power and authority (corporate and other) necessary to own or hold its properties and to conduct its business as now conducted by it and to enter into and perform its obligations under this Agreement and the Sale Agreement.
(ii) The Depositor has the full corporate power and authority to execute, deliver and perform, and to enter into and consummate the Depositor transactions contemplated by, this Agreement and the Sale Agreement and has taken duly authorized, by all necessary corporate action to authorize on its part, the execution, delivery and performance of this Agreement by it, and has the power Sale Agreement; and authority to execute, deliver and perform this Agreement and all the transactions contemplated herebySale Agreement, including, but not limited to, the power and authority to sell, assign and transfer the Mortgage Loans in accordance with this Agreement;
(ii) Assuming assuming the due authorization, execution and delivery of this Agreement hereof by each the other party parties hereto, this Agreement and all of the obligations of the Depositor hereunder are the constitutes a legal, valid and binding obligations obligation of the Depositor, enforceable against the Depositor in accordance with the terms of this Agreementits terms, except subject, as such enforcement may be limited by to enforceability, to (i) bankruptcy, insolvency, reorganization or reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally, generally and by (ii) general principles of equity (equity, regardless of whether such enforceability enforcement is considered sought in a proceeding in equity or at law);.
(iii) The execution and delivery of this Agreement and the performance of its obligations hereunder Sale Agreement by the Depositor, the consummation of the transactions contemplated by this Agreement and the Sale Agreement, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Depositor and will not conflict with any provisions of any law or regulations to which the Depositor is subject, or conflict with, (A) result in a material breach of any term or constitute a default under any provision of the terms, conditions charter or provisions of the certificate of incorporation or the by-laws of the Depositor or (B) materially conflict with, result in a violation or acceleration of, or result in a material default under, the terms of any indenture, other material agreement or instrument to which the Depositor is a party or by which it is boundmay be bound or (C) constitute a material violation of any statute, or any order or decree regulation applicable to the Depositor of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Depositor; and the Depositor is not in breach or violation of any material indenture or other material agreement or instrument, or result in the creation or imposition violation of any lien on statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Depositor's ability to perform or meet any of its obligations under this Agreement.
(iv) No litigation is pending, or, to the best of the Depositor's assets or propertyknowledge, which threatened, against the Depositor that would materially and adversely affect the execution, delivery or enforceability of this Agreement and the Sale Agreement or the ability of the Depositor to carry out perform its obligations under this Agreement and the transactions contemplated by this Agreement; Sale Agreement in accordance with the Depositor has obtained any terms hereof.
(v) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Depositor of, or compliance by the Depositor with, this Agreement and the Sale Agreement or the consummation of this Agreement;
(iv) There the transactions contemplated hereby, or if any such consent, approval, authorization or order is no actionrequired, suit or proceeding pending or, the Depositor has obtained the same. The Depositor hereby represents and warrants to the Depositor's knowledgeTrustee with respect to each Mortgage Loan as of the Closing Date, threatened against and following the Depositor in any court or by or before any other governmental agency or instrumentality which would materially and adversely affect the validity transfer of the Mortgage Loans or to it by the ability of Seller, the Depositor had good title to carry out the transactions contemplated by this Agreement; and
(v) The Depositor is the lawful owner of the Mortgage Loans free and clear of all liensthe Mortgage Notes were subject to no offsets, claims, encumbrances liens, mortgage, pledge, charge, security interest, defenses or counterclaims.
(b) The representations and other interests warranties of each Transferor with respect to the full related Mortgage Loans in the applicable Transfer Agreement, which have been assigned to the Trustee hereunder, were made as of the date specified in the applicable Transfer Agreement (or underlying agreement, if such Transfer Agreement is in the form of an assignment of a prior agreement). To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of both (i) a representation or warranty of the applicable Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under the Sale Agreement, the only right or remedy of the Trustee, the NIMs Insurer or of any Certificateholder shall be the Trustee's right to transfer enforce the obligations of the applicable Transferor under any applicable representation or warranty made by it. The Trustee acknowledges that the Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Mortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the applicable Transferor in the applicable Transfer Agreement, without regard to whether such Transferor fulfills its contractual obligations in respect of such representation or warranty. The Trustee further acknowledges that the Trust and Depositor shall have no obligation or liability with respect to any breach of any representation or warranty with respect to the Mortgage Loans have been validly transferred to the Trust. The representations, warranties and covenants of the Depositor (except as set forth in this Section 2.04 shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. 2.03(a)(v)) under any circumstances.
(c) Upon discovery by any party hereto of any the Depositor, the NIMs Insurer, or the Trustee of a breach of any of such representationsrepresentations and warranties that adversely and materially affects the value of the related Mortgage Loan, warranties and covenantsprepayment charges or the interests of the Certificateholders, the party discovering such breach shall give prompt written notice thereof to the other parties. Within 90 days of the discovery of a breach of any representation or warranty given to the Trustee by the Depositor, any Transferor, the Seller and assigned to the Trustee, the Depositor, such Transferor or the Seller, as applicable, shall either (a) cure such breach in all material respects, (b) repurchase such Mortgage Loan or any property acquired in respect thereof from the Trustee at the Purchase Price or (c) within the two year period following the Closing Date, substitute a Replacement Mortgage Loan for the affected Mortgage Loan. In the event of discovery of a breach of any representation and warranty of any Transferor or the Depositor, the Trustee shall enforce its rights under the applicable Transfer Agreement and the Sale Agreement for the benefit of Certificateholders and the NIMs Insurer. If a breach of the representations and warranties set forth in the Transfer Agreement hereof exists solely due to the unenforceability of a prepayment charge, the Trustee shall notify the NIMs Insurer thereof and not seek to enforce the repurchase remedy provided for herein unless directed in writing to do so by the NIMs Insurer. In the event of a breach of the representations and warranties with respect to the Mortgage Loans set forth in a Transfer Agreement, the Trustee shall at the request of the NIMs Insurer enforce the right of the Trust Fund and the NIMs Insurer to be indemnified for such breach of representation and warranty. In the event that such breach relates solely to the unenforceability of a prepayment charge, amounts received in respect of such indemnity up to the amount of such prepayment charge shall be distributed pursuant to Section 4.04(b)(i)(B). As provided in the Sale Agreement, if the Transferor substitutes for a Mortgage Loan for which there is a breach of any representations and warranties in the related Transfer Agreement which adversely and materially affects the value of such Mortgage Loan and such substitute mortgage loan is not a Replacement Mortgage Loan, under the terms of the Sale Agreement, the Seller will, in exchange for such substitute Mortgage Loan, (i) provide the applicable Purchase Price for the affected Mortgage Loan or (ii) within two years of the Closing Date, substitute such affected Mortgage Loan with a Replacement Mortgage Loan. Any such substitution shall not be effected prior to the additional delivery to the Trustee of a Request for Release substantially in the form of Exhibit I and shall not be effected unless it is within two years of the Startup Date. As provided in the Sale Agreement, the Seller indemnifies and holds the Trust Fund, the Trustee, the Depositor, the NIMs Insurer, the Servicer and each Certificateholder harmless against any and all taxes, claims, losses, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, fees and expenses that the Trust Fund, the Trustee, the Depositor, the NIMs Insurer, the Servicer and any Certificateholder may sustain in connection with any actions of the Seller relating to a repurchase of a Mortgage Loan other than in compliance with the terms of this Section 2.03 and the Sale Agreement, to the extent that any such action causes (i) any federal or state tax to be imposed on the Trust Fund or any REMIC provided for herein, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup date" under Section 860(d)(1) of the Code, or (ii) any REMIC created hereunder to fail to qualify as a REMIC at any time that any Certificate is outstanding. With respect to any Mortgage Loan repurchased by the Depositor pursuant to this Agreement, by the Seller pursuant to the Sale Agreement or by any Transferor pursuant to the applicable Transfer Agreement, the principal portion of the funds received by the Trustee in respect of such repurchase of a Mortgage Loan will be considered a Principal Prepayment and shall be deposited in the Certificate Account pursuant to Section 3.05. The Trustee, upon receipt of the full amount of the Purchase Price for a Deleted Mortgage Loan, or upon receipt of the Mortgage File for a Replacement Mortgage Loan substituted for a Deleted Mortgage Loan, shall release or cause to be released and reassign to the Depositor, the Seller or the applicable Transferor, as applicable, the related Mortgage File for the Deleted Mortgage Loan and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation or warranty, as shall be necessary to vest in such party or its designee or assignee title to any Deleted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Trustee, and the Trustee shall not have any further responsibility with respect to the Mortgage File relating to such Deleted Mortgage Loan. With respect to each Replacement Mortgage Loan to be delivered to the Trustee pursuant to the terms of this Article II in exchange for a Deleted Mortgage Loan: (i) the Depositor, the applicable Transferor or the Seller, as applicable, must deliver to the Trustee the Mortgage File for the Replacement Mortgage Loan containing the documents set forth in Section 2.01 along with a written certification certifying as to the delivery of such Mortgage File and containing the granting language set forth in Section 2.01; and (ii) the Depositor will be deemed to have made, with respect to such Replacement Mortgage Loan, each of the representations and warranties made by it with respect to the related Deleted Mortgage Loan. The Trustee shall review the Mortgage File with respect to each Replacement Mortgage Loan and certify to the NIMs Insurer and the Depositor that all documents required by Section 2.01 have been executed and received. For any month in which the Seller substitutes one or more Replacement Mortgage Loans for one or more Deleted Mortgage Loans, the Seller will determine the amount (if any) by which the aggregate principal balance of all such Replacement Mortgage Loans as of the date of substitution and the aggregate prepayment penalties with respect to such Replacement Mortgage Loans is less than the aggregate Stated Principal Balance (after application of the principal portion of the Scheduled Payment due in the month of substitution) and aggregate prepayment penalties of all such Deleted Mortgage Loans. An amount equal to the aggregate of the deficiencies described in the preceding sentence (such amount, the "Substitution Adjustment Amount") shall be deposited into the Certificate Account by the Seller on the Determination Date for the Distribution Date relating to the Prepayment Period during which the related Mortgage Loan became required to be purchased or replaced hereunder. Notwithstanding any other provision of this Agreement, the right to substitute Mortgage Loans pursuant to this Article II shall be subject to the additional limitations that no substitution of a Replacement Mortgage Loan for a Deleted Mortgage Loan shall be made unless the Trustee and the NIMs Insurer have received an Opinion of Counsel (at the expense of the party seeking to make the substitution) that, under current law, such substitution will not (A) affect adversely the status of any REMIC established hereunder as a REMIC, or of the related "regular interests" as "regular interests" in any such REMIC, or (B) cause any such REMIC to engage in a "prohibited transaction" or prohibited contribution pursuant to the REMIC Provisions. The Trustee shall cause the Mortgage Loan Schedule to be amended in accordance with the terms of this Agreement. The Seller shall give or cause to be given written notice to the Certificateholders and the NIMs Insurer that such substitution has taken place, shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Replacement Mortgage Loan or Replacement Mortgage Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the NIMs Insurer and the Trustee. Upon such substitution by the Seller, such Replacement Mortgage Loan or Replacement Mortgage Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and the Sale Agreement, including all applicable representations and warranties thereof included in the Sale Agreement as of the date of substitution. In addition, the Seller shall obtain at its own expense and deliver to the Trustee and the NIMs Insurer an Opinion of Counsel to the effect that such substitution will not (a) cause any federal tax to be imposed on the Trust Fund or any REMIC provided for herein, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup date" under Section 860G(d)(1) of the Code or (b) adversely affect the status of any REMIC provided for herein as a REMIC. If any such Opinion of Counsel can not be delivered, then such substitution may only be effected at such time as the required Opinion of Counsel can be given.
(d) It is understood and agreed that the representations, warranties and indemnification (i) set forth in Section 2.03, (ii) of the Seller and the Depositor set forth in the Sale Agreement and assigned to the Trustee by the Depositor hereunder and (iii) of each Transferor, assigned by the Seller to the Depositor pursuant to the Sale Agreement and assigned to the Trustee by the Depositor hereunder shall each survive delivery of the Mortgage Files and the Assignment of Mortgage of each Mortgage Loan to the Trustee and shall continue throughout the term of this Agreement.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Inc)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, represents and warrants and covenants to the TrusteeSecurities Administrator, for its own benefit the Trustee and the benefit of the Certificateholders, and to the Fiscal Agent, the Master Servicer and the Special ServicerNIMs Insurer as follows, as of the Closing Date, thatdate hereof:
(i) The Depositor is duly organized and is validly existing as a corporation duly organized, validly existing and in good standing under the laws of the State of DelawareDelaware and has full power and authority (corporate and other) necessary to own or hold its properties and to conduct its business as now conducted by it and to enter into and perform its obligations under this Agreement and the Sale Agreement.
(ii) The Depositor has the full corporate power and authority to execute, deliver and perform, and to enter into and consummate the Depositor transactions contemplated by, this Agreement and the Sale Agreement and has taken duly authorized, by all necessary corporate action to authorize on its part, the execution, delivery and performance of this Agreement by it, and has the power Sale Agreement; and authority to execute, deliver and perform this Agreement and all the transactions contemplated herebySale Agreement, including, but not limited to, the power and authority to sell, assign and transfer the Mortgage Loans in accordance with this Agreement;
(ii) Assuming assuming the due authorization, execution and delivery of this Agreement hereof by each the other party parties hereto, this Agreement and all of the obligations of the Depositor hereunder are the constitutes a legal, valid and binding obligations obligation of the Depositor, enforceable against the Depositor in accordance with the terms of this Agreementits terms, except subject, as such enforcement may be limited by to enforceability, to (i) bankruptcy, insolvency, reorganization or reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally, generally and by (ii) general principles of equity (equity, regardless of whether such enforceability enforcement is considered sought in a proceeding in equity or at law);.
(iii) The execution and delivery of this Agreement and the performance of its obligations hereunder Sale Agreement by the Depositor, the consummation of the transactions contemplated by this Agreement and the Sale Agreement, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Depositor and will not conflict with any provisions of any law or regulations to which the Depositor is subject, or conflict with, (A) result in a material breach of any term or constitute a default under any provision of the terms, conditions charter or provisions of the certificate of incorporation or the by-laws of the Depositor or (B) materially conflict with, result in a violation or acceleration of, or result in a material default under, the terms of any indenture, other material agreement or instrument to which the Depositor is a party or by which it is boundmay be bound or (C) constitute a material violation of any statute, or any order or decree regulation applicable to the Depositor of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Depositor; and the Depositor is not in breach or violation of any material indenture or other material agreement or instrument, or result in the creation or imposition violation of any lien on statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Depositor's ability to perform or meet any of its obligations under this Agreement.
(iv) No litigation is pending, or, to the best of the Depositor's assets or propertyknowledge, which threatened, against the Depositor that would materially and adversely affect the execution, delivery or enforceability of this Agreement and the Sale Agreement or the ability of the Depositor to carry out perform its obligations under this Agreement and the transactions contemplated by this Agreement; Sale Agreement in accordance with the Depositor has obtained any terms hereof.
(v) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Depositor of, or compliance by the Depositor with, this Agreement and the Sale Agreement or the consummation of this Agreement;
(iv) There the transactions contemplated hereby, or if any such consent, approval, authorization or order is no actionrequired, suit or proceeding pending or, the Depositor has obtained the same. The Depositor hereby represents and warrants to the Depositor's knowledgeTrustee with respect to each Mortgage Loan as of the Closing Date, threatened against and following the Depositor in any court or by or before any other governmental agency or instrumentality which would materially and adversely affect the validity transfer of the Mortgage Loans or to it by the ability of Seller, the Depositor had good title to carry out the transactions contemplated by this Agreement; and
(v) The Depositor is the lawful owner of the Mortgage Loans free and clear of all liensthe Mortgage Notes were subject to no offsets, claims, encumbrances liens, mortgage, pledge, charge, security interest, defenses or counterclaims.
(b) The representations and other interests warranties of each Transferor with respect to the full related Mortgage Loans in the applicable Transfer Agreement, which have been assigned to the Trustee hereunder, were made as of the date specified in the applicable Transfer Agreement (or underlying agreement, if such Transfer Agreement is in the form of an assignment of a prior agreement). To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of both (i) a representation or warranty of the applicable Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under the Sale Agreement, the only right or remedy of the Trustee, the NIMs Insurer or of any Certificateholder shall be the Trustee's right to transfer enforce the obligations of the applicable Transferor under any applicable representation or warranty made by it. The Trustee acknowledges that the Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Mortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the applicable Transferor in the applicable Transfer Agreement, without regard to whether such Transferor fulfills its contractual obligations in respect of such representation or warranty. The Trustee further acknowledges that the Trust and Depositor shall have no obligation or liability with respect to any breach of any representation or warranty with respect to the Mortgage Loans have been validly transferred to the Trust. The representations, warranties and covenants of the Depositor (except as set forth in this Section 2.04 shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. 2.03(a)(v) under any circumstances.
(c) Upon discovery by any party hereto of any the Depositor, the Securities Administrator, the NIMs Insurer, or the Trustee of a breach of any of such representations, representations and warranties that adversely and covenantsmaterially affects the value of the related Mortgage Loan, the party discovering such breach shall give prompt written notice thereof to the other parties. Within 90 days of the discovery of a breach of any representation or warranty given to the Trustee by the Depositor, any Transferor, the Seller and assigned to the Trustee, the Depositor, such Transferor or the Seller, as applicable, shall either (a) cure such breach in all material respects, (b) repurchase such Mortgage Loan or any property acquired in respect thereof from the Trustee at the Purchase Price or (c) within the two year period following the Closing Date, substitute a Replacement Mortgage Loan for the affected Mortgage Loan. In the event of discovery of a breach of any representation and warranty of any Transferor or the Depositor, the Trustee shall enforce its rights under the applicable Transfer Agreement and the Sale Agreement for the benefit of Certificateholders and the NIMs Insurer. If a breach of the representations and warranties set forth in Section 7.02 of the Option One Mortgage Corporation Transfer Agreement or Section 3.02 of the ▇▇▇▇▇ Fargo Home Mortgage, Inc. Transfer Agreement exists solely due to the unenforceability of a prepayment charge, the Trustee shall not seek to enforce the repurchase remedy provided for herein unless directed in writing to do so by the NIMs Insurer. In the event of a breach of the representations and warranties with respect to the Mortgage Loans set forth in a Transfer Agreement or a Servicing Agreement, the Trustee shall at the request of the NIMs Insurer enforce the right of the Trust Fund and the NIMs Insurer to be indemnified for such breach of representation and warranty. In the event that such breach relates solely to the unenforceability of a prepayment charge, amounts received in respect of such indemnity up to the amount of such prepayment charge shall be distributed pursuant to Section 4.01(b)(i)(B). As provided in the Sale Agreement, if any Transferor substitutes for a Mortgage Loan for which there is a breach of any representations and warranties in the related Transfer Agreement which adversely and materially affects the value of such Mortgage Loan and such substitute mortgage loan is not a Replacement Mortgage Loan, under the terms of the Sale Agreement, the Seller will, in exchange for such substitute Mortgage Loan, (i) provide the applicable Purchase Price for the affected Mortgage Loan or (ii) within two years of the Closing Date, substitute such affected Mortgage Loan with a Replacement Mortgage Loan. Any such substitution shall not be effected prior to the additional delivery to the Securities Administrator of a Request for Release substantially in the form of Exhibit I and shall not be effected unless it is within two years of the Startup Date. The Seller indemnifies and holds the Trust Fund, the Securities Administrator, the Trustee, the Depositor, the PMI Insurer, the NIMs Insurer and each Certificateholder harmless against any and all taxes, claims, losses, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, fees and expenses that the Trust Fund, the Trustee, the Securities Administrator, the Depositor, the PMI Insurer, the NIMs Insurer and any Certificateholder may sustain in connection with any actions of the Seller relating to a repurchase of a Mortgage Loan other than in compliance with the terms of this Section 2.03 and the Mortgage Loan Sale Agreement, to the extent that any such action causes (i) any federal or state tax to be imposed on the Trust Fund, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup date" under Section 860(d)(1) of the Code, or (ii) either REMIC created hereunder to fail to qualify as a REMIC at any time that any Certificate is outstanding. With respect to any Mortgage Loan repurchased by the Depositor pursuant to this Agreement, by the Seller pursuant to the Sale Agreement or by any Transferor pursuant to the applicable Transfer Agreement, the principal portion of the funds received by the Securities Administrator in respect of such repurchase of a Mortgage Loan will be considered a Principal Prepayment and shall be deposited in the Certificate Account pursuant to Section 3.05. The Trustee, upon receipt of the full amount of the Purchase Price for a Deleted Mortgage Loan, or upon receipt of the Mortgage File for a Replacement Mortgage Loan substituted for a Deleted Mortgage Loan, shall release or cause to be released and reassign to the Depositor, the Seller or the applicable Transferor, as applicable, the related Mortgage File for the Deleted Mortgage Loan and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation or warranty, as shall be necessary to vest in such party or its designee or assignee title to any Deleted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Securities Administrator (or its custodian), and neither the Trustee nor the Securities Administrator shall have any further responsibility with respect to the Mortgage File relating to such Deleted Mortgage Loan. With respect to each Replacement Mortgage Loan to be delivered to the Trustee (or its custodian) pursuant to the terms of this Article II in exchange for a Deleted Mortgage Loan: (i) the Depositor, the applicable Transferor or the Seller, as applicable, must deliver to the Custodian the Mortgage File for the Replacement Mortgage Loan containing the documents set forth in Section 2.01 along with a written certification certifying as to the delivery of such Mortgage File and containing the granting language set forth in Section 2.01; and (ii) the Depositor will be deemed to have made, with respect to such Replacement Mortgage Loan, each of the representations and warranties made by it with respect to the related Deleted Mortgage Loan. The Securities Administrator shall review the Mortgage File with respect to each Replacement Mortgage Loan and certify to the NIMs Insurer and the Depositor that all documents required by Section 2.01 have been executed and received. As soon as practicable after the delivery of any Replacement Mortgage Loan hereunder, the Trustee, at the expense of the Depositor and at the direction and with the cooperation of the applicable Servicer, shall cause the Assignment of Mortgage to be recorded by such Servicer if required pursuant to Section 2.01. For any month in which the Seller substitutes one or more Replacement Mortgage Loans for one or more Deleted Mortgage Loans, the Seller will determine the amount (if any) by which the aggregate principal balance of all such Replacement Mortgage Loans as of the date of substitution and the aggregate prepayment penalties with respect to such Replacement Mortgage Loans is less than the aggregate Stated Principal Balance (after application of the principal portion of the Scheduled Payment due in the month of substitution) and aggregate prepayment penalties of all such Deleted Mortgage Loans. An amount equal to the aggregate of the deficiencies described in the preceding sentence (such amount, the "Substitution Adjustment Amount") shall be deposited into the Certificate Account by the Seller on the Determination Date for the Distribution Date relating to the Prepayment Period during which the related Mortgage Loan became required to be purchased or replaced hereunder. Notwithstanding any other provision of this Agreement, the right to substitute Mortgage Loans pursuant to this Article II shall be subject to the additional limitations that no substitution of a Replacement Mortgage Loan for a Deleted Mortgage Loan shall be made unless the Securities Administrator and the NIMs Insurer have received an Opinion of Counsel (at the expense of the party seeking to make the substitution) that, under current law, such substitution will not (A) affect adversely the status of any REMIC established hereunder as a REMIC, or of the related "regular interests" as "regular interests" in any such REMIC, or (B) cause any such REMIC to engage in a "prohibited transaction" or prohibited contribution pursuant to the REMIC Provisions. The Securities Administrator shall cause the Mortgage Loan Schedule to be amended in accordance with the terms of this Agreement.
(d) It is understood and agreed that the representations and warranties (i) set forth in Section 2.03, (ii) of the Seller and the Depositor set forth in the Sale Agreement and assigned to the Trustee by the Depositor hereunder and (iii) of each Transferor, assigned by the Seller to the Depositor pursuant to the Sale Agreement and assigned to the Trustee by the Depositor hereunder shall each survive delivery of the Mortgage Files and the Assignment of Mortgage of each Mortgage Loan to the Securities Administrator and shall continue throughout the term of this Agreement.
Appears in 1 contract
Sources: Trust Agreement (Merrill Lynch Mortgage Investors Inc)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, represents and warrants and covenants to the TrusteeServicer, for its own benefit the Trustee and the benefit of the Certificateholders, and to the Fiscal Agent, the Master Servicer and the Special ServicerNIM Insurer as follows, as of the Closing Date, that:date hereof
(i) The Depositor is duly organized and is validly existing as a corporation duly organized, validly existing and in good standing under the laws of the State of DelawareDelaware and has full power and authority (corporate and other) necessary to own or hold its properties and to conduct its business as now conducted by it and to enter into and perform its obligations under this Agreement and the Sale Agreement.
(ii) The Depositor has the full corporate power and authority to execute, deliver and perform, and to enter into and consummate the Depositor transactions contemplated by, this Agreement and the Sale Agreement and has taken duly authorized, by all necessary corporate action to authorize on its part, the execution, delivery and performance of this Agreement by it, and has the power Sale Agreement; and authority to execute, deliver and perform this Agreement and all the transactions contemplated herebySale Agreement, including, but not limited to, the power and authority to sell, assign and transfer the Mortgage Loans in accordance with this Agreement;
(ii) Assuming assuming the due authorization, execution and delivery of this Agreement hereof by each the other party parties hereto, this Agreement and all of the obligations of the Depositor hereunder are the constitutes a legal, valid and binding obligations obligation of the Depositor, enforceable against the Depositor in accordance with the terms of this Agreementits terms, except subject, as such enforcement may be limited by to enforceability, to (i) bankruptcy, insolvency, reorganization or reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally, generally and by (ii) general principles of equity (equity, regardless of whether such enforceability enforcement is considered sought in a proceeding in equity or at law);.
(iii) The execution and delivery of this Agreement and the performance of its obligations hereunder Sale Agreement by the Depositor, the consummation of the transactions contemplated by this Agreement and the Sale Agreement, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Depositor and will not conflict with any provisions of any law or regulations to which the Depositor is subject, or conflict with, (A) result in a material breach of any term or constitute a default under any provision of the terms, conditions charter or provisions of the certificate of incorporation or the by-laws of the Depositor or (B) materially conflict with, result in a violation or acceleration of, or result in a material default under, the terms of any indenture, other material agreement or instrument to which the Depositor is a party or by which it is boundmay be bound or (C) constitute a material violation of any statute, or any order or decree regulation applicable to the Depositor of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Depositor; and the Depositor is not in breach or violation of any material indenture or other material agreement or instrument, or result in the creation or imposition violation of any lien on statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Depositor's ability to perform or meet any of its obligations under this Agreement.
(iv) No litigation is pending, or, to the best of the Depositor's assets or propertyknowledge, which threatened, against the Depositor that would materially and adversely affect the execution, delivery or enforceability of this Agreement and the Sale Agreement or the ability of the Depositor to carry out perform its obligations under this Agreement and the transactions contemplated by this Agreement; Sale Agreement in accordance with the Depositor has obtained any terms hereof.
(v) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Depositor of, or compliance by the Depositor with, this Agreement and the Sale Agreement or the consummation of this Agreement;
(iv) There the transactions contemplated hereby, or if any such consent, approval, authorization or order is no actionrequired, suit or proceeding pending or, the Depositor has obtained the same. The Depositor hereby represents and warrants to the Depositor's knowledgeTrustee with respect to each Mortgage Loan as of the Closing Date, threatened against and following the Depositor in any court or by or before any other governmental agency or instrumentality which would materially and adversely affect the validity transfer of the Mortgage Loans or to it by the ability of Seller, the Depositor had good title to carry out the transactions contemplated by this Agreement; and
(v) The Depositor is the lawful owner of the Mortgage Loans free and clear of all liensthe Mortgage Notes were subject to no offsets, claims, encumbrances and other interests liens, mortgage, pledge, charge, security interest, defenses or counterclaims.
(b) To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of a representation or warranty of the full Seller under the Sale Agreement, the only right or remedy of the Trustee, the NIM Insurer or of any Certificateholder shall be the Trustee's right to transfer enforce the obligations of the Seller under any applicable representation or warranty made by it. The Trustee acknowledges that the Depositor shall have no obligation or liability with respect to any breach of any representation or warranty with respect to the Mortgage Loans to the Trust and the Mortgage Loans have been validly transferred to the Trust. The representations, warranties and covenants of the Depositor (except as set forth in this Section 2.04 shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. 2.03(a)(v)) under any circumstances.
(c) Upon discovery by any party hereto of any the Depositor, the Servicer, the NIM Insurer, or the Trustee of a breach of any of such representationsrepresentations and warranties set forth in the Sale Agreement that adversely and materially affects the value of the related Mortgage Loan, warranties and covenantsprepayment charges or the interests of the Certificateholders, the party discovering such breach shall give prompt written notice thereof to the other parties.. Within 90 days of the discovery of a breach of any representation or warranty given to the Trustee by the Depositor, the Seller and assigned to the Trustee, the Depositor, or the Seller shall either (a) cure such breach in all material respects, (b) repurchase such Mortgage Loan or any property acquired in respect thereof from the Trustee at the Purchase Price or (c) within the two year period following the Closing Date, substitute a Replacement Mortgage Loan for the affected Mortgage Loan. In the event of discovery of a breach of any representation and warranty of the Seller or the Depositor, the Trustee shall enforce its rights under the Sale Agreement or thereunder for the benefit of Certificateholders and the NIM Insurer. If a breach of the representations and warranties set forth in the Sale Agreement hereof exists solely due to the unenforceability of a prepayment charge, the Trustee shall notify the NIM Insurer thereof and not seek to enforce the repurchase remedy provided for herein unless directed in writing to do so by the NIM Insurer. In the event of a breach of the representations and warranties with respect to the Mortgage Loans set forth in a Sale Agreement, the Trustee shall at the request of the NIM Insurer enforce the right of the Trust Fund and the NIM Insurer to be indemnified for such breach of representation and warranty. In the event that such breach relates solely to the unenforceability of a prepayment charge, amounts received in respect of such indemnity up to the amount of such prepayment charge shall be distributed pursuant to Section 4.04(b)(i)(B). As provided in the Sale Agreement, if the Seller substitutes for a Mortgage Loan for which there is a breach of any representations and warranties which adversely and materially affects the value of such Mortgage Loan and such substitute mortgage loan is not a Replacement Mortgage Loan, under the terms of the Sale Agreement, the Seller will, in exchange for such substitute Mortgage Loan, (i) provide the applicable Purchase Price for the affected Mortgage Loan or (ii) within two years of the Closing Date, substitute such affected Mortgage Loan with a Replacement Mortgage Loan. Any such substitution shall not be effected prior to the additional delivery to the Trustee of a Request for Release substantially in the form of Exhibit I and shall not be effected unless it is within two years of the Startup
Appears in 1 contract
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, represents and warrants and covenants to the Trustee, for its own benefit and the benefit of the Certificateholders, and to the Fiscal AgentServicer, the Master Servicer Servicer, the Securities Administrator and the Special ServicerTrustee as follows, as of the Closing Date, thatdate hereof:
(i) The Depositor is duly organized and is validly existing as a corporation duly organized, validly existing and in good standing under the laws of the State of DelawareDelaware and has full power and authority (corporate and other) necessary to own or hold its properties and to conduct its business as now conducted by it and to enter into and perform its obligations under this Agreement and the Sale Agreement.
(ii) The Depositor has the full corporate power and authority to execute, deliver and perform, and to enter into and consummate the Depositor transactions contemplated by, this Agreement and the Sale Agreement and has taken duly authorized, by all necessary corporate action to authorize on its part, the execution, delivery and performance of this Agreement by it, and has the power Sale Agreement; and authority to execute, deliver and perform this Agreement and all the transactions contemplated herebySale Agreement, including, but not limited to, the power and authority to sell, assign and transfer the Mortgage Loans in accordance with this Agreement;
(ii) Assuming assuming the due authorization, execution and delivery of this Agreement hereof by each the other party parties hereto, this Agreement and all of the obligations of the Depositor hereunder are the constitutes a legal, valid and binding obligations obligation of the Depositor, enforceable against the Depositor in accordance with the terms of this Agreementits terms, except subject, as such enforcement may be limited by to enforceability, to (i) bankruptcy, insolvency, reorganization or reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally, generally and by (ii) general principles of equity (equity, regardless of whether such enforceability enforcement is considered sought in a proceeding in equity or at law);.
(iii) The execution and delivery of this Agreement and the performance of its obligations hereunder Sale Agreement by the Depositor, the consummation of the transactions contemplated by this Agreement and the Sale Agreement, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Depositor and will not conflict with any provisions of any law or regulations to which the Depositor is subject, or conflict with, (A) result in a material breach of any term or constitute a default under any provision of the terms, conditions charter or provisions of the certificate of incorporation or the by-laws of the Depositor or (B) materially conflict with, result in a violation or acceleration of, or result in a material default under, the terms of any indenture, other material agreement or instrument to which the Depositor is a party or by which it is boundmay be bound or (C) constitute a material violation of any statute, or any order or decree regulation applicable to the Depositor of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Depositor; and the Depositor is not in breach or violation of any material indenture or other material agreement or instrument, or result in the creation or imposition violation of any lien on statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Depositor's ability to perform or meet any of its obligations under this Agreement.
(iv) No litigation is pending, or, to the best of the Depositor's assets or propertyknowledge, which threatened, against the Depositor that would materially and adversely affect the execution, delivery or enforceability of this Agreement and the Sale Agreement or the ability of the Depositor to carry out perform its obligations under this Agreement and the transactions contemplated by this Agreement; Sale Agreement in accordance with the Depositor has obtained any terms hereof.
(v) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Depositor of, or compliance by the Depositor with, this Agreement and the Sale Agreement or the consummation of this Agreement;
(iv) There the transactions contemplated hereby, or if any such consent, approval, authorization or order is no actionrequired, suit or proceeding pending or, the Depositor has obtained the same. The Depositor hereby represents and warrants to the Depositor's knowledgeTrustee with respect to each Mortgage Loan as of the Closing Date, threatened against and following the Depositor in any court or by or before any other governmental agency or instrumentality which would materially and adversely affect the validity transfer of the Mortgage Loans or to it by the ability of Seller, the Depositor had good title to carry out the transactions contemplated by this Agreement; and
(v) The Depositor is the lawful owner of the Mortgage Loans free and clear of all liensthe Mortgage Notes were subject to no offsets, claims, encumbrances liens, mortgage, pledge, charge, security interest, defenses or counterclaims.
(b) The representations and other interests warranties of the Seller with the full right respect to transfer the Mortgage Loans contained in the Sale Agreement were made as of the Closing Date. To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of a representation or warranty of the Trust and Seller under the Sale Agreement, the only right or remedy of the Trustee or of any Certificateholder shall be the Trustee's right to enforce the obligations of the Seller under any applicable representation or warranty made by it. The Trustee acknowledges that the Depositor shall have no obligation or liability with respect to any breach of any representation or warranty with respect to the Mortgage Loans have been validly transferred to the Trust. The representations, warranties and covenants of the Depositor (except as set forth in this Section 2.04 shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. 2.03(a)(v)) under any circumstances.
(c) Upon discovery by any party hereto of any the Depositor, the Master Servicer, the Securities Administrator, the Servicer or the Trustee of a breach of any of such representationsrepresentations and warranties that adversely and materially affects the value of the related Mortgage Loan, warranties and covenantsPrepayment Charges or the interests of the Certificateholders, the party discovering such breach shall give prompt written notice thereof to the other parties. Within 90 days of the discovery of such breach of any representation or warranty, the Seller shall either (a) cure such breach in all material respects, (b) repurchase such Mortgage Loan or any property acquired in respect thereof from the Trustee at the Purchase Price or (c) within the two year period following the Closing Date, substitute a Replacement Mortgage Loan for the affected Mortgage Loan. In the event of discovery of a breach of any representation and warranty of the Seller, the Trustee's rights shall be enforced under the Sale Agreement for the benefit of Certificateholders. If a breach of the representations and warranties set forth in the Sale Agreement hereof exists solely due to the unenforceability of a Prepayment Charge, the Trustee or the other party having notice thereof shall notify the Servicer thereof and not seek to enforce the repurchase remedy provided for herein unless such Mortgage Loan is not current. In the event of a breach of the representations and warranties with respect to the Mortgage Loans set forth in the Sale Agreement, the Trustee shall enforce the right of the Trust Fund to be indemnified for such breach of representation and warranty. In the event that such breach relates solely to the unenforceability of a Prepayment Charge, amounts received in respect of such indemnity up to the amount of such Prepayment Charge shall be distributed pursuant to Section 4.04(b)(i). As provided in the Sale Agreement, if the Seller substitutes for a Mortgage Loan for which there is a breach of any representations and warranties in the Sale Agreement which adversely and materially affects the value of such Mortgage Loan and such substitute mortgage loan is not a Replacement Mortgage Loan, under the terms of the Sale Agreement, the Seller will, in exchange for such substitute Mortgage Loan, (i) provide the applicable Purchase Price for the affected Mortgage Loan or (ii) within two years of the Closing Date, substitute such affected Mortgage Loan with a Replacement Mortgage Loan. Any such substitution shall not be effected prior to the additional delivery to the Trustee of a Request for Release substantially in the form of Exhibit I and shall not be effected unless it is within two years of the Startup Day. The Seller indemnifies and holds the Trust Fund, the Trustee, the Depositor, the Master Servicer, the Securities Administrator, the Servicer and each Certificateholder harmless against any and all taxes, claims, losses, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, fees and expenses that the Trust Fund, the Trustee, the Depositor, the Master Servicer, the Securities Administrator, the Servicer and any Certificateholder may sustain in connection with any actions of the Seller relating to a repurchase of a Mortgage Loan other than in compliance with the terms of this Section 2.03 and the Sale Agreement, to the extent that any such action causes (i) any federal or state tax to be imposed on the Trust Fund or any REMIC provided for herein, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup day" under Section 860(d)(1) of the Code, or (ii) any REMIC created hereunder to fail to qualify as a REMIC at any time that any Certificate is outstanding. In furtherance of the foregoing, if the Seller is not a member of MERS and repurchases a Mortgage Loan which is registered on the MERS System, the Seller, at its own expense and without any right of reimbursement, shall cause MERS to execute and deliver an assignment of the Mortgage in recordable form to transfer the Mortgage from MERS to the Seller and shall cause such Mortgage to be removed from registration on the MERS System in accordance with MERS' rules and regulations. With respect to any Mortgage Loan repurchased by the Seller pursuant to the Sale Agreement, the principal portion of the funds received by the Securities Administrator in respect of such repurchase of a Mortgage Loan will be considered a Principal Prepayment and shall be deposited in the Certificate Account pursuant to Section 3.05. The Trustee, upon receipt of notice from the Securities Administrator of its receipt of the full amount of the Purchase Price for a Deleted Mortgage Loan, or upon receipt of the Mortgage File for a Replacement Mortgage Loan substituted for a Deleted Mortgage Loan, shall release or cause to be released and reassign to the Seller the related Mortgage File for the Deleted Mortgage Loan and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation or warranty, as shall be necessary to vest in such party or its designee or assignee title to any Deleted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Trustee (or its custodian), and neither the Trustee nor the Securities Administrator shall not have any further responsibility with respect to the Mortgage File relating to such Deleted Mortgage Loan. With respect to each Replacement Mortgage Loan to be delivered to the Trustee (or its custodian) pursuant to the terms of this Article II in exchange for a Deleted Mortgage Loan: (i) the Seller must deliver to the Trustee (or its custodian) the Mortgage File for the Replacement Mortgage Loan containing the documents set forth in Section 2.01 along with a written certification certifying as to the Mortgage Loan satisfying all requirements under the definition of Replacement Mortgage Loan and the delivery of such Mortgage File and containing the granting language set forth in Section 2.01; and (ii) the Depositor will be deemed to have made, with respect to such Replacement Mortgage Loan, each of the representations and warranties made by it with respect to the related Deleted Mortgage Loan. The Trustee (or its custodian) shall review the Mortgage File with respect to each Replacement Mortgage Loan and certify to the Depositor that all documents required by Section 2.01 have been executed and received. For any month in which the Seller substitutes one or more Replacement Mortgage Loans for one or more Deleted Mortgage Loans, the Seller will determine the amount (if any) by which the aggregate principal balance of all such Replacement Mortgage Loans as of the date of substitution and the aggregate Prepayment Charges with respect to such Replacement Mortgage Loans is less than the aggregate Stated Principal Balance (after application of the principal portion of the Scheduled Payment due in the month of substitution) and aggregate Prepayment Charges of all such Deleted Mortgage Loans. An amount equal to the aggregate of the deficiencies described in the preceding sentence (such amount, the "Substitution Adjustment Amount") plus an amount equal to any unreimbursed costs, penalties and/or damages incurred by the Trust Fund in connection with any violation relating to such Deleted Mortgage Loan of any predatory or abusive lending law shall be remitted by the Seller to the Securities Administrator for deposit into the Certificate Account by the Seller on the Determination Date for the Distribution Date relating to the Prepayment Period during which the related Mortgage Loan became required to be purchased or replaced hereunder. Notwithstanding any other provision of this Agreement, the right to substitute Mortgage Loans pursuant to this Article II shall be subject to the additional limitations that no substitution of a Replacement Mortgage Loan for a Deleted Mortgage Loan shall be made unless the Trustee and the Securities Administrator shall have received an Opinion of Counsel (at the expense of the party seeking to make the substitution) that, under current law, such substitution will not (A) affect adversely the status of any REMIC established hereunder as a REMIC, or of the related "regular interests" as "regular interests" in any such REMIC, or (B) cause any such REMIC to engage in a "prohibited transaction" or prohibited contribution pursuant to the REMIC Provisions. The Trustee shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Replacement Mortgage Loan or Replacement Mortgage Loans. Upon such substitution by the Seller, such Replacement Mortgage Loan or Replacement Mortgage Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and the Sale Agreement, including all applicable representations and warranties thereof included in the Sale Agreement as of the date of substitution.
(d) It is understood and agreed that the representations, warranties and indemnification (i) set forth in this Section 2.03 and (ii) of the Seller and the Depositor set forth in the Sale Agreement and assigned to the Trustee by the Depositor hereunder shall each survive delivery of the Mortgage Files and the Assignment of Mortgage of each Mortgage Loan to the Trustee and shall continue throughout the term of this Agreement.
(e) The Depositor shall deliver a copy of the Mortgage Loan Schedule to the Servicer on the Closing Date.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors, Inc. Series 2004-FFC)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, represents and warrants and covenants to the TrusteeServicer, for its own benefit the Trustee and the benefit of the Certificateholders, and to the Fiscal Agent, the Master Servicer and the Special ServicerNIMs Insurer as follows, as of the Closing Date, thatdate hereof:
(i) The Depositor is duly organized and is validly existing as a corporation duly organized, validly existing and in good standing under the laws of the State of DelawareDelaware and has full power and authority (corporate and other) necessary to own or hold its properties and to conduct its business as now conducted by it and to enter into and perform its obligations under this Agreement and the Sale Agreement.
(ii) The Depositor has the full corporate power and authority to execute, deliver and perform, and to enter into and consummate the Depositor transactions contemplated by, this Agreement and the Sale Agreement and has taken duly authorized, by all necessary corporate action to authorize on its part, the execution, delivery and performance of this Agreement by it, and has the power Sale Agreement; and authority to execute, deliver and perform this Agreement and all the transactions contemplated herebySale Agreement, including, but not limited to, the power and authority to sell, assign and transfer the Mortgage Loans in accordance with this Agreement;
(ii) Assuming assuming the due authorization, execution and delivery of this Agreement hereof by each the other party parties hereto, this Agreement and all of the obligations of the Depositor hereunder are the constitutes a legal, valid and binding obligations obligation of the Depositor, enforceable against the Depositor in accordance with the terms of this Agreementits terms, except subject, as such enforcement may be limited by to enforceability, to (i) bankruptcy, insolvency, reorganization or reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally, generally and by (ii) general principles of equity (equity, regardless of whether such enforceability enforcement is considered sought in a proceeding in equity or at law);.
(iii) The execution and delivery of this Agreement and the performance of its obligations hereunder Sale Agreement by the Depositor, the consummation of the transactions contemplated by this Agreement and the Sale Agreement, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Depositor and will not conflict with any provisions of any law or regulations to which the Depositor is subject, or conflict with, (A) result in a material breach of any term or constitute a default under any provision of the terms, conditions charter or provisions of the certificate of incorporation or the by-laws of the Depositor or (B) materially conflict with, result in a violation or acceleration of, or result in a material default under, the terms of any indenture, other material agreement or instrument to which the Depositor is a party or by which it is boundmay be bound or (C) constitute a material violation of any statute, or any order or decree regulation applicable to the Depositor of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Depositor; and the Depositor is not in breach or violation of any material indenture or other material agreement or instrument, or result in the creation or imposition violation of any lien on statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Depositor's ability to perform or meet any of its obligations under this Agreement.
(iv) No litigation is pending, or, to the best of the Depositor's assets or propertyknowledge, which threatened, against the Depositor that would materially and adversely affect the execution, delivery or enforceability of this Agreement and the Sale Agreement or the ability of the Depositor to carry out perform its obligations under this Agreement and the transactions contemplated by this Agreement; Sale Agreement in accordance with the Depositor has obtained any terms hereof.
(v) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Depositor of, or compliance by the Depositor with, this Agreement and the Sale Agreement or the consummation of this Agreement;
(iv) There the transactions contemplated hereby, or if any such consent, approval, authorization or order is no actionrequired, suit or proceeding pending or, the Depositor has obtained the same. The Depositor hereby represents and warrants to the Depositor's knowledgeTrustee with respect to each Mortgage Loan as of the Closing Date, threatened against and following the Depositor in any court or by or before any other governmental agency or instrumentality which would materially and adversely affect the validity transfer of the Mortgage Loans or to it by the ability of Seller, the Depositor had good title to carry out the transactions contemplated by this Agreement; and
(v) The Depositor is the lawful owner of the Mortgage Loans free and clear of all liensthe Mortgage Notes were subject to no offsets, claims, encumbrances liens, mortgage, pledge, charge, security interest, defenses or counterclaims.
(b) The representations and other interests warranties of each Transferor with respect to the full related Mortgage Loans in the applicable Transfer Agreement, which have been assigned to the Trustee hereunder, were made as of the date specified in the applicable Transfer Agreement (or underlying agreement, if such Transfer Agreement is in the form of an assignment of a prior agreement). To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of both (i) a representation or warranty of the applicable Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under the Sale Agreement, the only right or remedy of the Trustee, the NIMs Insurer or of any Certificateholder shall be the Trustee's right to transfer enforce the obligations of the applicable Transferor under any applicable representation or warranty made by it. The Trustee acknowledges that the Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Mortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the applicable Transferor in the applicable Transfer Agreement, without regard to whether such Transferor fulfills its contractual obligations in respect of such representation or warranty. The Trustee further acknowledges that the Trust and Depositor shall have no obligation or liability with respect to any breach of any representation or warranty with respect to the Mortgage Loans have been validly transferred to the Trust. The representations, warranties and covenants of the Depositor (except as set forth in this Section 2.04 shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. 2.03(a)(v)) under any circumstances.
(c) Upon discovery by any party hereto of any the Depositor, the NIMs Insurer, or the Trustee of a breach of any of such representationsrepresentations and warranties that adversely and materially affects the value of the related Mortgage Loan, warranties and covenantsprepayment charges or the interests of the Certificateholders, the party discovering such breach shall give prompt written notice thereof to the other parties. Within 90 days of the discovery of such breach of any representation or warranty the applicable Transferor or the Seller, as applicable, shall either (a) cure such breach in all material respects, (b) repurchase such Mortgage Loan or any property acquired in respect thereof from the Trustee at the Purchase Price or (c) within the two year period following the Closing Date, substitute a Replacement Mortgage Loan for the affected Mortgage Loan. In the event of discovery of a breach of any representation and warranty of any Transferor, the Depositor or the Seller, the Trustee shall enforce its rights under the applicable Transfer Agreement and the Sale Agreement for the benefit of Certificateholders and the NIMs Insurer. If a breach of the representations and warranties set forth in a Transfer Agreement exists solely due to the unenforceability of a prepayment charge, the Trustee shall notify the NIMs Insurer thereof and not seek to enforce the repurchase remedy provided for herein unless directed in writing to do so by the NIMs Insurer. In the event of a breach of the representations and warranties with respect to the Mortgage Loans set forth in a Transfer Agreement, the Trustee shall at the request of the NIMs Insurer enforce the right of the Trust Fund and the NIMs Insurer to be indemnified for such breach of representation and warranty. In the event that such breach relates solely to the unenforceability of a prepayment charge, amounts received in respect of such indemnity up to the amount of such prepayment charge shall be distributed pursuant to Section 4.04(b)(i)(B). As provided in the Sale Agreement, if any Transferor substitutes for a Mortgage Loan for which there is a breach of any representations and warranties in the related Transfer Agreement which adversely and materially affects the value of such Mortgage Loan and such substitute mortgage loan is not a Replacement Mortgage Loan, under the terms of the Sale Agreement, the Seller will, in exchange for such substitute Mortgage Loan, (i) provide the applicable Purchase Price for the affected Mortgage Loan or (ii) within two years of the Closing Date, substitute such affected Mortgage Loan with a Replacement Mortgage Loan. Any such substitution shall not be effected prior to the additional delivery to the Trustee of a Request for Release substantially in the form of Exhibit I and shall not be effected unless it is within two years of the Startup Date. As provided in the Sale Agreement, the Seller indemnifies and holds the Trust Fund, the Trustee, the Depositor, the NIMs Insurer, the Servicer and each Certificateholder harmless against any and all taxes, claims, losses, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, fees and expenses that the Trust Fund, the Trustee, the Depositor, the NIMs Insurer, the Servicer and any Certificateholder may sustain in connection with any actions of the Seller relating to a repurchase of a Mortgage Loan other than in compliance with the terms of this Section 2.03 and the Sale Agreement, to the extent that any such action causes (i) any federal or state tax to be imposed on the Trust Fund or any REMIC provided for herein, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup date" under Section 860(d)(1) of the Code, or (ii) any REMIC created hereunder to fail to qualify as a REMIC at any time that any Certificate is outstanding. With respect to any Mortgage Loan repurchased by the Depositor pursuant to this Agreement, by the Seller pursuant to the Sale Agreement or by any Transferor pursuant to the applicable Transfer Agreement, the principal portion of the funds received by the Trustee in respect of such repurchase of a Mortgage Loan will be considered a Principal Prepayment and shall be deposited in the Certificate Account pursuant to Section 3.05. The Trustee, upon receipt of the full amount of the Purchase Price for a Deleted Mortgage Loan, or upon receipt of the Mortgage File for a Replacement Mortgage Loan substituted for a Deleted Mortgage Loan, shall release or cause to be released and reassign to the Depositor, the Seller or the applicable Transferor, as applicable, the related Mortgage File for the Deleted Mortgage Loan and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation or warranty, as shall be necessary to vest in such party or its designee or assignee title to any Deleted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Trustee, and the Trustee shall not have any further responsibility with respect to the Mortgage File relating to such Deleted Mortgage Loan. With respect to each Replacement Mortgage Loan to be delivered to the Trustee pursuant to the terms of this Article II in exchange for a Deleted Mortgage Loan: (i) the Depositor, the applicable Transferor or the Seller, as applicable, must deliver to the Trustee the Mortgage File for the Replacement Mortgage Loan containing the documents set forth in Section 2.01 along with a written certification certifying as to the delivery of such Mortgage File and containing the granting language set forth in Section 2.01; and (ii) the Depositor will be deemed to have made, with respect to such Replacement Mortgage Loan, each of the representations and warranties made by it with respect to the related Deleted Mortgage Loan. The Trustee shall review the Mortgage File with respect to each Replacement Mortgage Loan and certify to the NIMs Insurer and the Depositor that all documents required by Section 2.01 have been executed and received. For any month in which the Seller substitutes one or more Replacement Mortgage Loans for one or more Deleted Mortgage Loans, the Seller will determine the amount (if any) by which the aggregate principal balance of all such Replacement Mortgage Loans as of the date of substitution and the aggregate prepayment penalties with respect to such Replacement Mortgage Loans is less than the aggregate Stated Principal Balance (after application of the principal portion of the Scheduled Payment due in the month of substitution) and aggregate prepayment penalties of all such Deleted Mortgage Loans. An amount equal to the aggregate of the deficiencies described in the preceding sentence (such amount, the "Substitution Adjustment Amount") plus an amount equal to any unreimbursed costs, penalties and/or damages incurred by the Trust Fund in connection with any violation relating to such Deleted Mortgage Loan of any predatory or abusive lending law shall be deposited into the Certificate Account by the Seller on the Determination Date for the Distribution Date relating to the Prepayment Period during which the related Mortgage Loan became required to be purchased or replaced hereunder. The Trustee shall cause the Mortgage Loan Schedule to be amended in accordance with the terms of this Agreement. The Seller shall give or cause to be given written notice to the Certificateholders and the NIMs Insurer that such substitution has taken place, shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Replacement Mortgage Loan or Replacement Mortgage Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the NIMs Insurer and the Trustee. Upon such substitution by the Seller, such Replacement Mortgage Loan or Replacement Mortgage Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and the Sale Agreement, including all applicable representations and warranties thereof included in the Sale Agreement as of the date of substitution. In addition, the Seller shall obtain at its own expense and deliver to the Trustee and the NIMs Insurer an Opinion of Counsel to the effect that such substitution will not (a) cause any federal tax to be imposed on the Trust Fund or any REMIC provided for herein, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup date" under Section 860G(d)(1) of the Code or (b) adversely affect the status of any REMIC provided for herein as a REMIC. If any such Opinion of Counsel can not be delivered, then such substitution may only be effected at such time as the required Opinion of Counsel can be given.
(d) It is understood and agreed that the representations, warranties and indemnification (i) set forth in this Section 2.03, (ii) of the Seller and the Depositor set forth in the Sale Agreement and assigned to the Trustee by the Depositor hereunder and (iii) of each Transferor, assigned by the Seller to the Depositor pursuant to the Sale Agreement and assigned to the Trustee by the Depositor hereunder shall each survive delivery of the Mortgage Files and the Assignment of Mortgage of each Mortgage Loan to the Trustee and shall continue throughout the term of this Agreement.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Mortgage Loan Asset-Backed Certificates Series 2003 He1)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, represents and warrants and covenants to the TrusteeServicer, for its own benefit the Trustee and the benefit of the Certificateholders, and to the Fiscal Agent, the Master Servicer and the Special ServicerNIMs Insurer as follows, as of the Closing Date, thatdate hereof:
(i) The Depositor is duly organized and is validly existing as a corporation duly organized, validly existing and in good standing under the laws of the State of DelawareDelaware and has full power and authority (corporate and other) necessary to own or hold its properties and to conduct its business as now conducted by it and to enter into and perform its obligations under this Agreement and the Sale Agreement.
(ii) The Depositor has the full corporate power and authority to execute, deliver and perform, and to enter into and consummate the Depositor transactions contemplated by, this Agreement and the Sale Agreement and has taken duly authorized, by all necessary corporate action to authorize on its part, the execution, delivery and performance of this Agreement by it, and has the power Sale Agreement; and authority to execute, deliver and perform this Agreement and all the transactions contemplated herebySale Agreement, including, but not limited to, the power and authority to sell, assign and transfer the Mortgage Loans in accordance with this Agreement;
(ii) Assuming assuming the due authorization, execution and delivery of this Agreement hereof by each the other party parties hereto, this Agreement and all of the obligations of the Depositor hereunder are the constitutes a legal, valid and binding obligations obligation of the Depositor, enforceable against the Depositor in accordance with the terms of this Agreementits terms, except subject, as such enforcement may be limited by to enforceability, to (i) bankruptcy, insolvency, reorganization or reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally, generally and by (ii) general principles of equity (equity, regardless of whether such enforceability enforcement is considered sought in a proceeding in equity or at law);.
(iii) The execution and delivery of this Agreement and the performance of its obligations hereunder Sale Agreement by the Depositor, the consummation of the transactions contemplated by this Agreement and the Sale Agreement, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Depositor and will not conflict with any provisions of any law or regulations to which the Depositor is subject, or conflict with, (A) result in a material breach of any term or constitute a default under any provision of the terms, conditions charter or provisions of the certificate of incorporation or the by-laws of the Depositor or (B) materially conflict with, result in a violation or acceleration of, or result in a material default under, the terms of any indenture, other material agreement or instrument to which the Depositor is a party or by which it is boundmay be bound or (C) constitute a material violation of any statute, or any order or decree regulation applicable to the Depositor of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Depositor; and the Depositor is not in breach or violation of any material indenture or other material agreement or instrument, or result in the creation or imposition violation of any lien on statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Depositor's ability to perform or meet any of its obligations under this Agreement.
(iv) No litigation is pending, or, to the best of the Depositor's assets or propertyknowledge, which threatened, against the Depositor that would materially and adversely affect the execution, delivery or enforceability of this Agreement and the Sale Agreement or the ability of the Depositor to carry out perform its obligations under this Agreement and the transactions contemplated by this Agreement; Sale Agreement in accordance with the Depositor has obtained any terms hereof.
(v) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Depositor of, or compliance by the Depositor with, this Agreement and the Sale Agreement or the consummation of this Agreement;
(iv) There the transactions contemplated hereby, or if any such consent, approval, authorization or order is no actionrequired, suit or proceeding pending or, the Depositor has obtained the same. The Depositor hereby represents and warrants to the Depositor's knowledgeTrustee with respect to each Mortgage Loan as of the Closing Date, threatened against and following the Depositor in any court or by or before any other governmental agency or instrumentality which would materially and adversely affect the validity transfer of the Mortgage Loans or to it by the ability of Seller, the Depositor had good title to carry out the transactions contemplated by this Agreement; and
(v) The Depositor is the lawful owner of the Mortgage Loans free and clear of all liensthe Mortgage Notes were subject to no offsets, claims, encumbrances liens, mortgage, pledge, charge, security interest, defenses or counterclaims.
(b) The representations and other interests warranties of the Transferor with respect to the full related Mortgage Loans in the Transfer Agreement, which have been assigned to the Trustee hereunder, were made as of the date specified in the Transfer Agreement (or underlying agreement, if the Transfer Agreement is in the form of an assignment of a prior agreement), except to the extent such representations and warranties were brought forward in the letter agreement dated as of the date hereof from the Transferor to the Seller. To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of both (i) a representation or warranty of the Transferor under the Transfer Agreement and (ii) a representation or warranty of the Seller under the Sale Agreement, the only right or remedy of the Trustee, the NIMs Insurer or of any Certificateholder shall be the Trustee's right to transfer enforce the obligations of the Transferor under any applicable representation or warranty made by it. The Trustee acknowledges that the Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Mortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the Transferor in the Transfer Agreement, without regard to whether the Trust and Transferor fulfills its contractual obligations in respect of such representation or warranty. The Trustee further acknowledges that the Depositor shall have no obligation or liability with respect to any breach of any representation or warranty with respect to the Mortgage Loans have been validly transferred to the Trust. The representations, warranties and covenants of the Depositor (except as set forth in this Section 2.04 shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. 2.03(a)(v)) under any circumstances.
(c) Upon discovery by any party hereto of any the Depositor, the NIMs Insurer, or the Trustee of a breach of any of such representationsrepresentations and warranties that adversely and materially affects the value of the related Mortgage Loan, warranties and covenantsprepayment charges or the interests of the Certificateholders, the party discovering such breach shall give prompt written notice thereof to the other parties. Within 90 days of the discovery of such breach of any representation or warranty the Transferor or the Seller, as applicable, shall either (a) cure such breach in all material respects, (b) repurchase such Mortgage Loan or any property acquired in respect thereof from the Trustee at the Purchase Price or (c) within the two year period following the Closing Date, substitute a Replacement Mortgage Loan for the affected Mortgage Loan. In the event of discovery of a breach of any representation and warranty of the Transferor, the Depositor or the Seller, the Trustee shall enforce its rights under the Transfer Agreement or the Sale Agreement for the benefit of Certificateholders and the NIMs Insurer. If a breach of the representations and warranties set forth in the Transfer Agreement exists solely due to the unenforceability of a prepayment charge, the Trustee shall notify the NIMs Insurer thereof and not seek to enforce the repurchase remedy provided for herein unless directed in writing to do so by the NIMs Insurer. In the event of a breach of the representations and warranties with respect to the Mortgage Loans set forth in the Transfer Agreement, the Trustee shall at the request of the NIMs Insurer enforce the right of the Trust Fund and the NIMs Insurer to be indemnified for such breach of representation and warranty. In the event that such breach relates solely to the unenforceability of a prepayment charge, amounts received in respect of such indemnity up to the amount of such prepayment charge shall be distributed pursuant to Section 4.04(b)(i)(B). As provided in the Sale Agreement, if the Transferor substitutes for a Mortgage Loan for which there is a breach of any representations and warranties in the Transfer Agreement which adversely and materially affects the value of such Mortgage Loan and such substitute mortgage loan is not a Replacement Mortgage Loan, under the terms of the Sale Agreement, the Seller will, in exchange for such substitute Mortgage Loan, (i) provide the applicable Purchase Price for the affected Mortgage Loan or (ii) within two years of the Closing Date, substitute such affected Mortgage Loan with a Replacement Mortgage Loan. Any such substitution shall not be effected prior to the additional delivery to the Trustee of a Request for Release substantially in the form of Exhibit I and shall not be effected unless it is within two years of the Startup Date. As provided in the Sale Agreement, the Seller indemnifies and holds the Trust Fund, the Trustee, the Depositor, the NIMs Insurer, the Servicer and each Certificateholder harmless against any and all taxes, claims, losses, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, fees and expenses that the Trust Fund, the Trustee, the Depositor, the NIMs Insurer, the Servicer and any Certificateholder may sustain in connection with any actions of the Seller relating to a repurchase of a Mortgage Loan other than in compliance with the terms of this Section 2.03 and the Sale Agreement, to the extent that any such action causes (i) any federal or state tax to be imposed on the Trust Fund or any REMIC provided for herein, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup date" under Section 860(d)(1) of the Code, or (ii) any REMIC created hereunder to fail to qualify as a REMIC at any time that any Certificate is outstanding. With respect to any Mortgage Loan repurchased by the Depositor pursuant to this Agreement, by the Seller pursuant to the Sale Agreement or by the Transferor pursuant to the Transfer Agreement, the principal portion of the funds received by the Trustee in respect of such repurchase of a Mortgage Loan will be considered a Principal Prepayment and shall be deposited in the Collection Account pursuant to Section 3.05(d) and the Servicer shall notify the Trustee of its receipt of the same. The Trustee, upon receipt of the full amount of the Purchase Price for a Deleted Mortgage Loan, or upon receipt of the Mortgage File for a Replacement Mortgage Loan substituted for a Deleted Mortgage Loan, shall release or cause to be released and reassign to the Depositor, the Seller or the Transferor, as applicable, the related Mortgage File for the Deleted Mortgage Loan and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation or warranty as shall be necessary to vest in such party or its designee or assignee title to any Deleted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Trustee, and the Trustee shall not have any further responsibility with respect to the Mortgage File relating to such Deleted Mortgage Loan. With respect to each Replacement Mortgage Loan to be delivered to the Trustee pursuant to the terms of this Article II in exchange for a Deleted Mortgage Loan: (i) the Depositor, the Transferor or the Seller, as applicable, must deliver to the Trustee the Mortgage File for the Replacement Mortgage Loan containing the documents set forth in Section 2.01 along with a written certification certifying as to the delivery of such Mortgage File and containing the granting language set forth in Section 2.01; and (ii) the Depositor will be deemed to have made, with respect to such Replacement Mortgage Loan, each of the representations and warranties made by it with respect to the related Deleted Mortgage Loan. The Trustee shall review the Mortgage File with respect to each Replacement Mortgage Loan and certify to the NIMs Insurer and the Depositor that all documents required by Section 2.01 have been executed and received. For any month in which the Seller substitutes one or more Replacement Mortgage Loans for one or more Deleted Mortgage Loans, the Seller will determine the amount (if any) by which the aggregate principal balance of all such Replacement Mortgage Loans as of the date of substitution and the aggregate prepayment penalties with respect to such Replacement Mortgage Loans is less than the aggregate Stated Principal Balance (after application of the principal portion of the Scheduled Payment due in the month of substitution) and aggregate prepayment penalties of all such Deleted Mortgage Loans. An amount equal to the aggregate of the deficiencies described in the preceding sentence (such amount, the "Substitution Adjustment Amount") plus an amount equal to any unreimbursed costs, penalties and/or damages incurred by the Trust Fund in connection with any violation relating to such Deleted Mortgage Loan of any predatory or abusive lending law shall be deposited into the Collection Account by the Seller on the Determination Date for the Distribution Date relating to the Prepayment Period during which the related Mortgage Loan became required to be purchased or replaced hereunder. The Trustee shall cause the relevant Mortgage Loan Schedules to be amended in accordance with the terms of this Agreement. The Seller shall give or cause to be given written notice to the Certificateholders and the NIMs Insurer that such substitution has taken place, shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Replacement Mortgage Loan or Replacement Mortgage Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the NIMs Insurer and the Trustee. Upon such substitution by the Seller, such Replacement Mortgage Loan or Replacement Mortgage Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and the Sale Agreement, including all applicable representations and warranties thereof included in the Sale Agreement as of the date of substitution. In addition, the Seller shall obtain at its own expense and deliver to the Trustee and the NIMs Insurer an Opinion of Counsel to the effect that such substitution will not (a) cause any federal tax to be imposed on the Trust Fund or any REMIC provided for herein, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup date" under Section 860G(d)(1) of the Code or (b) adversely affect the status of any REMIC provided for herein as a REMIC. If any such Opinion of Counsel can not be delivered, then such substitution may only be effected at such time as the required Opinion of Counsel can be given.
(d) It is understood and agreed that the representations, warranties and indemnification (i) set forth in this Section 2.03, (ii) of the Seller and the Depositor set forth in the Sale Agreement and assigned to the Trustee by the Depositor hereunder and (iii) of the Transferor, assigned by the Seller to the Depositor pursuant to the Sale Agreement and assigned to the Trustee by the Depositor hereunder shall each survive delivery of the Mortgage Files and the Assignment of Mortgage of each Mortgage Loan to the Trustee and shall continue throughout the term of this Agreement.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Inc)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, represents and warrants and covenants to the Trustee, for its own benefit and the benefit of the Certificateholders, and to the Fiscal Agent, the Master Servicer and the Special ServicerTrustee as follows, as of the Closing Date, thatdate hereof:
(i) The Depositor is duly organized and is validly existing as a corporation duly organized, validly existing and in good standing under the laws of the State of DelawareDelaware and has full power and authority (corporate and other) necessary to own or hold its properties and to conduct its business as now conducted by it and to enter into and perform its obligations under this Agreement and the Sale Agreements.
(ii) The Depositor has the full corporate power and authority to execute, deliver and perform, and to enter into and consummate the Depositor transactions contemplated by, this Agreement and the Sale Agreements and has taken duly authorized, by all necessary corporate action to authorize on its part, the execution, delivery and performance of this Agreement by it, and has the power Sale Agreements; and authority to execute, deliver and perform this Agreement and all the transactions contemplated herebySale Agreements, including, but not limited to, the power and authority to sell, assign and transfer the Mortgage Loans in accordance with this Agreement;
(ii) Assuming assuming the due authorization, execution and delivery of this Agreement hereof by each the other party parties hereto, this Agreement and all of the obligations of the Depositor hereunder are the constitutes a legal, valid and binding obligations obligation of the Depositor, enforceable against the Depositor in accordance with the terms of this Agreementits terms, except subject, as such enforcement may be limited by to enforceability, to (i) bankruptcy, insolvency, reorganization or reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally, generally and by (ii) general principles of equity (equity, regardless of whether such enforceability enforcement is considered sought in a proceeding in equity or at law);.
(iii) The execution and delivery of this Agreement and the performance of its obligations hereunder Sale Agreements by the Depositor, the consummation of the transactions contemplated by this Agreement and the Sale Agreements, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Depositor and will not conflict with any provisions of any law or regulations to which the Depositor is subject, or conflict with, (A) result in a material breach of any term or constitute a default under any provision of the terms, conditions charter or provisions of the certificate of incorporation or the by-laws of the Depositor or (B) materially conflict with, result in a violation or acceleration of, or result in a material default under, the terms of any indenture, other material agreement or instrument to which the Depositor is a party or by which it is boundmay be bound or (C) constitute a material violation of any statute, or any order or decree regulation applicable to the Depositor of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Depositor; and the Depositor is not in breach or violation of any material indenture or other material agreement or instrument, or result in the creation or imposition violation of any lien on statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Depositor's ability to perform or meet any of its obligations under this Agreement.
(iv) No litigation is pending, or, to the best of the Depositor's assets or propertyknowledge, which threatened, against the Depositor that would materially and adversely affect the execution, delivery or enforceability of this Agreement and the Sale Agreements or the ability of the Depositor to carry out perform its obligations under this Agreement and the transactions contemplated by this Agreement; Sale Agreements in accordance with the Depositor has obtained any terms hereof.
(v) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Depositor of, or compliance by the Depositor with, this Agreement and the Sale Agreements or the consummation of this Agreement;
(iv) There the transactions contemplated hereby, or if any such consent, approval, authorization or order is no actionrequired, suit or proceeding pending or, the Depositor has obtained the same. The Depositor hereby represents and warrants to the Depositor's knowledgeTrustee with respect to each Mortgage Loan as of the Closing Date, threatened against and following the Depositor in any court or by or before any other governmental agency or instrumentality which would materially and adversely affect the validity transfer of the Mortgage Loans or to it by the ability of related Seller, the Depositor had good title to carry out the transactions contemplated by this Agreement; and
(v) The Depositor is the lawful owner of the Mortgage Loans free and clear of all liensthe Mortgage Notes were subject to no offsets, claims, encumbrances liens, mortgage, pledge, charge, security interest, defenses or counterclaims.
(b) The representations and other interests warranties of each Transferor with respect to the full right related Mortgage Loans in the applicable Transfer Agreement, which have been assigned to transfer the Trustee hereunder, were made as of the date specified in the applicable Transfer Agreement and brought forward to the Closing Date pursuant to the related Bring Down Letter, except as otherwise noted on Exhibit J-1 or Exhibit J-2. The representations and warranties of each Transferor with respect to the Mortgage Loans contained in the Bring Down Letter were made as of the Closing Date, except as otherwise noted on Exhibit J-1 or Exhibit J-2. The representations and warranties of the related Seller with respect to the Trust and the Mortgage Loans have been validly transferred to contained in the Trust. The representations, warranties and covenants related Sale Agreement were made as of the Depositor Closing Date. To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of both (i) a representation or warranty of the applicable Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the related Seller under the related Sale Agreement, the obligations of the related Seller under the related Sale Agreement shall be enforced against the Transferor or such Seller, as applicable, as set forth in such Sale Agreement. The Trustee acknowledges that the related Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to any related Mortgage Loans, except as otherwise set forth in the related Sale Agreement, if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in the related Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty. The Trustee also acknowledges that the related Seller shall have no obligation or liability with respect to any breach of a representation or warranty made solely by the Transferors with respect to the Mortgage Loans, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty. The Trustee further acknowledges that the Depositor shall have no obligation or liability with respect to any breach of any representation or warranty with respect to the Mortgage Loans (except as set forth in Section 2.03(a)(v)) under any circumstances. In addition to the representations and warranties of the Transferors in the Transfer Agreements that were brought forward to the Closing Date pursuant to the Bring Down Letter, with respect to each Mortgage Loan, each Transferor made certain additional covenants regarding such Mortgage Loan, as set forth in the related Transfer Agreement. With respect to any breach of such additional covenants that materially and adversely affects the interests of the Certificateholders in such Mortgage Loan, the related Seller shall (1) use reasonable efforts to enforce such covenant against the related Transferor and (2) if the related Seller successfully enforces any obligation of the related Transferor to repurchase such Mortgage Loan, the related Seller shall repurchase such Mortgage Loan in accordance with this Section 2.04 shall survive 2.03. If the execution and delivery of this Agreement and shall inure to related Seller does not successfully enforce the benefit obligation, if any, of the Persons for whose benefit they were made for so long as Transferor to repurchase a Mortgage Loan with respect to any breach of any such additional covenants, the Trust Fund remains in existence. related Seller shall have no obligation or right to repurchase or cure such Mortgage Loan.
(c) Upon discovery by any party hereto of any the Depositor, the Servicer or the Trustee of a breach of any of such representationsrepresentations and warranties that adversely and materially affects the value of the related Mortgage Loan, warranties and covenantsPrepayment Charges or the interests of the Certificateholders, the party discovering such breach shall give prompt written notice thereof to the other parties.. Within 90 days of the discovery of such breach of any representation or warranty, the applicable Transferor or the related Seller, as applicable, shall either (a) cure such breach in all material respects, (b) repurchase such Mortgage Loan or any property acquired in respect thereof from the Trustee at the Purchase Price or (c) within the two year period following the Closing Date, substitute a Replacement Mortgage Loan for the affected Mortgage Loan. In the event of discovery of a breach of any representation and warranty of any Transferor or the related Seller, the Trustee's rights shall be enforced under the applicable Transfer Agreement and the related Sale Agreement for the benefit of Certificateholders. If a breach of the representations and warranties set forth in the Transfer Agreement hereof exists solely due to the unenforceability of a Prepayment Charge, the Trustee or the other party having notice thereof shall notify the Servicer thereof and not seek to enforce the repurchase remedy provided for herein unless such Mortgage Loan is not current. In the event of a breach of the representations and warranties with respect to the Mortgage Loans set forth in a Transfer Agreement, the Trustee shall enforce the right of the Trust Fund to be indemnified for such breach of representation and warranty. In the event that such breach relates solely to the unenforceability of a Prepayment Charge, amounts received in respect of such indemnity up to the amount of such Prepayment Charge shall be distributed pursuant to Section 4.04(b)(i). As provided in each Sale Agreement, if a Seller substitutes for a Mortgage Loan for which there is a breach of any representations and warranties in the related Transfer Agreement which adversely and materially affects the value of such Mortgage Loan and such substitute mortgage loan is not a Replacement Mortgage Loan, under the terms of each Sale Agreement, the applicable Seller will, in exchange for such substitute Mortgage Loan, (i) provide the applicable Purchase Price for the affected Mortgage Loan or (ii) within two years of the Closing Date, substitute such affected Mortgage Loan with a Replacement Mortgage Loan. Any such substitution shall not be effected prior to the additional delivery to the Trustee of a Request for Release substantially in the form of Exhibit I and shall not be effected unless it is within two years of the Startup Day. Each Seller indemnifies and holds the Trust Fund, the Trustee, the Depositor, the Servicer and each Certificateholder harmless against any and all taxes, claims, losses, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, fees and expenses that the Trust Fund, the Trustee, the Depositor, the Servicer and any Certificateholder may sustain in connection with any actions of such Seller relating to a repurchase of a Mortgage Loan other than in compliance with the terms of this Section 2.03 and the related Sale Agreement, to the extent that any such action causes (i) any federal or state tax to be imposed on the Trust Fund or any REMIC provided for herein, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup day" under Section 860G(d)(1) of the Code, or (ii) any REMIC created hereunder to fail to qualify as a REMIC at any time that any Certificate is outstanding. In furtherance of the foregoing, if the Transferor or a Seller, as applicable, is not a member of MERS and repurchases a Mortgage Loan which is registered on the MERS System, the Transferor or the related Seller, as applicable, at its own expense and without any right of reimbursement, shall cause MERS to execute and deliver an assignment of the Mortgage in recordable form to transfer the Mortgage from MERS to the Transferor or the related Seller, as applicable, and shall cause such Mortgage to be removed from registration on the MERS System in accordance with MERS' rules and regulations. With respect to any Mortgage Loan repurchased by a Seller pursuant to the related Sale Agreement or by any Transferor pursuant to the applicable Transfer Agreement, the principal portion of the funds received by the Servicer in respect of such repurchase of a Mortgage Loan will be considered a Principal Prepayment and shall be deposited in the Certificate Account pursuant to Section 3.05. Upon receipt by the Trustee of notice from the Servicer of receipt by the Servicer of the full amount of the Purchase Price for a Deleted Mortgage Loan, and upon receipt by the Trustee of the Mortgage File for a Replacement Mortgage Loan substituted for a Deleted Mortgage Loan and a Request for Release, the Trustee shall release and reassign to the related Seller or the applicable Transferor, as applicable, the related Mortgage File for the Deleted Mortgage Loan and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation or warranty, as shall be necessary to vest in such party or its designee or assignee title to any Deleted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Depositor, the related Seller or the related Transferor, and the Trustee shall have no further responsibility with respect to the Mortgage File relating to such Deleted Mortgage Loan. With respect to each Replacement Mortgage Loan to be delivered to the Trustee pursuant to the terms of this Article II in exchange for a Deleted Mortgage Loan: (i) the applicable Transferor or the related Seller, as applicable, must deliver to the Trustee the Mortgage File for the Replacement Mortgage Loan containing the documents set forth in Section 2.01 along with a written certification certifying as to the Mortgage Loan satisfying all requirements under the definition of Replacement Mortgage Loan and the delivery of such Mortgage File and containing the granting language set forth in Section 2.01; and (ii) the Depositor will be deemed to have made, with respect to such Replacement Mortgage Loan, each of the representations and warranties made by it with respect to the related Deleted Mortgage Loan. The Trustee (or its custodian) shall review the Mortgage File with respect to each Replacement Mortgage Loan and certify to the Depositor that all documents required by Section 2.01(A)-(B), (C) (if applicable), and (D)-(E) have been executed and received. For any month in which a Seller substitutes one or more Replacement Mortgage Loans for one or more Deleted Mortgage Loans, such Seller will determine the amount (if any) by which the aggregate principal balance of all such Replacement Mortgage Loans as of the date of substitution and the aggregate Prepayment Charges with respect to such Replacement Mortgage Loans is less than the aggregate Stated Principal Balance (after application of the principal portion of the Scheduled Payment due in the month of substitution) and aggregate Prepayment Charges of all such Deleted Mortgage Loans. An amount equal to the aggregate of the deficiencies described in the preceding sentence (such amount, the "Substitution Adjustment Amount") plus an amount equal to any unreimbursed costs, penalties and/or damages incurred by the Trust Fund in connection with any violation relating to such Deleted Mortgage Loan of any predatory or abusive lending law shall be remitted by such Seller to the Trustee for deposit into the Certificate Account by such Seller on the Determination Date for the Distribution Date relating to the Prepayment Period during which the related Mortgage Loan became required to be purchased or replaced hereunder. Notwithstanding any other provision of this Agreement, the right to substitute Mortgage Loans pursuant to this Article II shall be subject to the additional limitations that no substitution of a Replacement Mortgage Loan for a Deleted Mortgage Loan shall be made unless the Trustee shall have received an Opinion of Counsel (at the expense of the party seeking to make the substitution) that, under current law, such substitution will not (A) affect adversely the status of any REMIC established hereunder as a REMIC, or of the related "regular interests" as "regular interests" in any such REMIC, or (B) cause any such REMIC to engage in a "prohibited transaction" or prohibited contribution pursuant to the REMIC Provisions. The Depositor shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the te
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Inc)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, represents and warrants and covenants to the TrusteeServicer, for its own benefit the Trustee and the benefit of the Certificateholders, and to the Fiscal Agent, the Master Servicer and the Special ServicerNIMs Insurer as follows, as of the Closing Date, thatdate hereof:
(i) The Depositor is duly organized and is validly existing as a corporation duly organized, validly existing and in good standing under the laws of the State of DelawareDelaware and has full power and authority (corporate and other) necessary to own or hold its properties and to conduct its business as now conducted by it and to enter into and perform its obligations under this Agreement and the Sale Agreement.
(ii) The Depositor has the full corporate power and authority to execute, deliver and perform, and to enter into and consummate the Depositor transactions contemplated by, this Agreement and the Sale Agreement and has taken duly authorized, by all necessary corporate action to authorize on its part, the execution, delivery and performance of this Agreement by it, and has the power Sale Agreement; and authority to execute, deliver and perform this Agreement and all the transactions contemplated herebySale Agreement, including, but not limited to, the power and authority to sell, assign and transfer the Mortgage Loans in accordance with this Agreement;
(ii) Assuming assuming the due authorization, execution and delivery of this Agreement hereof by each the other party parties hereto, this Agreement and all of the obligations of the Depositor hereunder are the constitutes a legal, valid and binding obligations obligation of the Depositor, enforceable against the Depositor in accordance with the terms of this Agreementits terms, except subject, as such enforcement may be limited by to enforceability, to (i) bankruptcy, insolvency, reorganization or reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally, generally and by (ii) general principles of equity (equity, regardless of whether such enforceability enforcement is considered sought in a proceeding in equity or at law);.
(iii) The execution and delivery of this Agreement and the performance of its obligations hereunder Sale Agreement by the Depositor, the consummation of the transactions contemplated by this Agreement and the Sale Agreement, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Depositor and will not conflict with any provisions of any law or regulations to which the Depositor is subject, or conflict with, (A) result in a material breach of any term or constitute a default under any provision of the terms, conditions charter or provisions of the certificate of incorporation or the by-laws of the Depositor or (B) materially conflict with, result in a violation or acceleration of, or result in a material default under, the terms of any indenture, other material agreement or instrument to which the Depositor is a party or by which it is boundmay be bound or (C) constitute a material violation of any statute, or any order or decree regulation applicable to the Depositor of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Depositor; and the Depositor is not in breach or violation of any material indenture or other material agreement or instrument, or result in the creation or imposition violation of any lien on statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Depositor's ability to perform or meet any of its obligations under this Agreement.
(iv) No litigation is pending, or, to the best of the Depositor's assets or propertyknowledge, which threatened, against the Depositor that would materially and adversely affect the execution, delivery or enforceability of this Agreement and the Sale Agreement or the ability of the Depositor to carry out perform its obligations under this Agreement and the transactions contemplated by this Agreement; Sale Agreement in accordance with the Depositor has obtained any terms hereof.
(v) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Depositor of, or compliance by the Depositor with, this Agreement and the Sale Agreement or the consummation of this Agreement;
(iv) There the transactions contemplated hereby, or if any such consent, approval, authorization or order is no actionrequired, suit or proceeding pending or, the Depositor has obtained the same. The Depositor hereby represents and warrants to the Depositor's knowledgeTrustee with respect to each Mortgage Loan as of the Closing Date, threatened against and following the Depositor in any court or by or before any other governmental agency or instrumentality which would materially and adversely affect the validity transfer of the Mortgage Loans or to it by the ability of Seller, the Depositor had good title to carry out the transactions contemplated by this Agreement; and
(v) The Depositor is the lawful owner of the Mortgage Loans free and clear of all liensthe Mortgage Notes were subject to no offsets, claims, encumbrances liens, mortgage, pledge, charge, security interest, defenses or counterclaims.
(b) The representations and other interests warranties of each Transferor with respect to the full related Mortgage Loans in the applicable Transfer Agreement, which have been assigned to the Trustee hereunder, were made as of the date specified in the applicable Transfer Agreement (or underlying agreement, if such Transfer Agreement is in the form of an assignment of a prior agreement). To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of both (i) a representation or warranty of the applicable Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under the Sale Agreement, the only right or remedy of the Trustee, the NIMs Insurer or of any Certificateholder shall be the Trustee's right to transfer enforce the obligations of the applicable Transferor under any applicable representation or warranty made by it. The Trustee acknowledges that the Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Mortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the applicable Transferor in the applicable Transfer Agreement, without regard to whether such Transferor fulfills its contractual obligations in respect of such representation or warranty. The Trustee further acknowledges that the Trust and Depositor shall have no obligation or liability with respect to any breach of any representation or warranty with respect to the Mortgage Loans have been validly transferred to the Trust. The representations, warranties and covenants of the Depositor (except as set forth in this Section 2.04 shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. 2.03(a)(v)) under any circumstances.
(c) Upon discovery by any party hereto of any the Depositor, the Servicer, the NIMs Insurer, or the Trustee of a breach of any of such representationsrepresentations and warranties that adversely and materially affects the value of the related Mortgage Loan, warranties and covenantsprepayment charges or the interests of the Certificateholders, the party discovering such breach shall give prompt written notice thereof to the other parties. Within 90 days of the discovery of a breach of any representation or warranty given to the Trustee by the Depositor, any Transferor, the Seller and assigned to the Trustee, the Depositor, such Transferor or the Seller, as applicable, shall either (a) cure such breach in all material respects, (b) repurchase such Mortgage Loan or any property acquired in respect thereof from the Trustee at the Purchase Price or (c) within the two year period following the Closing Date, substitute a Replacement Mortgage Loan for the affected Mortgage Loan. In the event of discovery of a breach of any representation and warranty of any Transferor or the Depositor, the Trustee shall enforce its rights under the applicable Transfer Agreement and the Sale Agreement for the benefit of Certificateholders and the NIMs Insurer. If a breach of the representations and warranties set forth in the Transfer Agreement hereof exists solely due to the unenforceability of a prepayment charge, the Trustee shall notify the NIMs Insurer thereof and not seek to enforce the repurchase remedy provided for herein unless directed in writing to do so by the NIMs Insurer. In the event of a breach of the representations and warranties with respect to the Mortgage Loans set forth in a Transfer Agreement, the Trustee shall at the request of the NIMs Insurer enforce the right of the Trust Fund and the NIMs Insurer to be indemnified for such breach of representation and warranty. In the event that such breach relates solely to the unenforceability of a prepayment charge, amounts received in respect of such indemnity up to the amount of such prepayment charge shall be distributed pursuant to Section 4.04(b)(i)(B). As provided in the Sale Agreement, if the Transferor substitutes for a Mortgage Loan for which there is a breach of any representations and warranties in the related Transfer Agreement which adversely and materially affects the value of such Mortgage Loan and such substitute mortgage loan is not a Replacement Mortgage Loan, under the terms of the Sale Agreement, the Seller will, in exchange for such substitute Mortgage Loan, (i) provide the applicable Purchase Price for the affected Mortgage Loan or (ii) within two years of the Closing Date, substitute such affected Mortgage Loan with a Replacement Mortgage Loan. Any such substitution shall not be effected prior to the additional delivery to the Trustee of a Request for Release substantially in the form of Exhibit I and shall not be effected unless it is within two years of the Startup Date. The Seller indemnifies and holds the Trust Fund, the Trustee, the Depositor, the NIMs Insurer and each Certificateholder harmless against any and all taxes, claims, losses, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, fees and expenses that the Trust Fund, the Trustee, the Depositor, the NIMs Insurer and any Certificateholder may sustain in connection with any actions of the Seller relating to a repurchase of a Mortgage Loan other than in compliance with the terms of this Section 2.03 and the Sale Agreement, to the extent that any such action causes (i) any federal or state tax to be imposed on the Trust Fund or any REMIC provided for herein, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup date" under Section 860(d)(1) of the Code, or (ii) any REMIC created hereunder to fail to qualify as a REMIC at any time that any Certificate is outstanding. With respect to any Mortgage Loan repurchased by the Depositor pursuant to this Agreement, by the Seller pursuant to the Sale Agreement or by any Transferor pursuant to the applicable Transfer Agreement, the principal portion of the funds received by the Servicer in respect of such repurchase of a Mortgage Loan will be considered a Principal Prepayment and shall be deposited by the Servicer in the Collection Account pursuant to Section 3.05. The Trustee, upon receipt of the full amount of the Purchase Price for a Deleted Mortgage Loan, or upon receipt of the Mortgage File for a Replacement Mortgage Loan substituted for a Deleted Mortgage Loan, shall release or cause to be released and reassign to the Depositor, the Seller or the applicable Transferor, as applicable, the related Mortgage File for the Deleted Mortgage Loan and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation or warranty, as shall be necessary to vest in such party or its designee or assignee title to any Deleted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Trustee, and the Trustee shall not have any further responsibility with respect to the Mortgage File relating to such Deleted Mortgage Loan. With respect to each Replacement Mortgage Loan to be delivered to the Trustee pursuant to the terms of this Article II in exchange for a Deleted Mortgage Loan: (i) the Depositor, the applicable Transferor or the Seller, as applicable, must deliver to the Trustee the Mortgage File for the Replacement Mortgage Loan containing the documents set forth in Section 2.01 along with a written certification certifying as to the delivery of such Mortgage File and containing the granting language set forth in Section 2.01; and (ii) the Depositor will be deemed to have made, with respect to such Replacement Mortgage Loan, each of the representations and warranties made by it with respect to the related Deleted Mortgage Loan. The Trustee shall review the Mortgage File with respect to each Replacement Mortgage Loan and certify to the NIMs Insurer and the Depositor that all documents required by Section 2.01 have been executed and received. For any month in which the Seller substitutes one or more Replacement Mortgage Loans for one or more Deleted Mortgage Loans, the Seller will determine the amount (if any) by which the aggregate principal balance of all such Replacement Mortgage Loans as of the date of substitution and the aggregate prepayment penalties with respect to such Replacement Mortgage Loans is less than the aggregate Stated Principal Balance (after application of the principal portion of the Scheduled Payment due in the month of substitution) and aggregate prepayment penalties of all such Deleted Mortgage Loans. An amount equal to the aggregate of the deficiencies described in the preceding sentence (such amount, the "Substitution Adjustment Amount") shall be delivered by the Seller to the Servicer for deposit into the Collection Account on the Determination Date for the Distribution Date relating to the Prepayment Period during which the related Mortgage Loan became required to be purchased or replaced hereunder. Notwithstanding any other provision of this Agreement, the right to substitute Mortgage Loans pursuant to this Article II shall be subject to the additional limitations that no substitution of a Replacement Mortgage Loan for a Deleted Mortgage Loan shall be made unless the Trustee and the NIMs Insurer have received an Opinion of Counsel (at the expense of the party seeking to make the substitution) that, under current law, such substitution will not (A) affect adversely the status of any REMIC established hereunder as a REMIC, or of the related "regular interests" as "regular interests" in any such REMIC, or (B) cause any such REMIC to engage in a "prohibited transaction" or prohibited contribution pursuant to the REMIC Provisions. The Seller shall give or cause to be given written notice to the Certificateholders and the NIMS Insurer that such substitution has taken place, shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Replacement Mortgage Loan or Replacement Mortgage Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the NIMS Insurer and the Trustee. Upon such substitution by the Seller, such Replacement Mortgage Loan or Replacement Mortgage Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and the Sale Agreement, including all applicable representations and warranties thereof included in the Sale Agreement as of the date of substitution. In addition, the Seller shall obtain at its own expense and deliver to the Trustee and the NIMS Insurer an Opinion of Counsel to the effect that such substitution will not (a) cause any federal tax to be imposed on the Trust Fund or any REMIC provided for herein, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup date" under Section 860G(d)(1) of the Code or (b) adversely affect the status of any REMIC provided for herein as a REMIC. If any such Opinion of Counsel can not be delivered, then such substitution may only be effected at such time as the required Opinion of Counsel can be given.
(d) It is understood and agreed that the representations, warranties and indemnification (i) set forth in Section 2.03, (ii) of the Seller and the Depositor set forth in the Sale Agreement and assigned to the Trustee by the Depositor hereunder and (iii) of each Transferor, assigned by the Seller to the Depositor pursuant to the Sale Agreement and assigned to the Trustee by the Depositor hereunder shall each survive delivery of the Mortgage Files and the Assignment of Mortgage of each Mortgage Loan to the Trustee and shall continue throughout the term of this Agreement.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Inc)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, represents and warrants and covenants to the TrusteeServicer, for its own benefit the Trustee and the benefit of the Certificateholders, and to the Fiscal Agent, the Master Servicer and the Special ServicerNIMs Insurer as follows, as of the Closing Date, thatdate hereof:
(i) The Depositor is duly organized and is validly existing as a corporation duly organized, validly existing and in good standing under the laws of the State of DelawareDelaware and has full power and authority (corporate and other) necessary to own or hold its properties and to conduct its business as now conducted by it and to enter into and perform its obligations under this Agreement and the Sale Agreement.
(ii) The Depositor has the full corporate power and authority to execute, deliver and perform, and to enter into and consummate the Depositor transactions contemplated by, this Agreement and the Sale Agreement and has taken duly authorized, by all necessary corporate action to authorize on its part, the execution, delivery and performance of this Agreement by it, and has the power Sale Agreement; and authority to execute, deliver and perform this Agreement and all the transactions contemplated herebySale Agreement, including, but not limited to, the power and authority to sell, assign and transfer the Mortgage Loans in accordance with this Agreement;
(ii) Assuming assuming the due authorization, execution and delivery of this Agreement hereof by each the other party parties hereto, this Agreement and all of the obligations of the Depositor hereunder are the constitutes a legal, valid and binding obligations obligation of the Depositor, enforceable against the Depositor in accordance with the terms of this Agreementits terms, except subject, as such enforcement may be limited by to enforceability, to (i) bankruptcy, insolvency, reorganization or reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally, generally and by (ii) general principles of equity (equity, regardless of whether such enforceability enforcement is considered sought in a proceeding in equity or at law);.
(iii) The execution and delivery of this Agreement and the performance of its obligations hereunder Sale Agreement by the Depositor, the consummation of the transactions contemplated by this Agreement and the Sale Agreement, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Depositor and will not conflict with any provisions of any law or regulations to which the Depositor is subject, or conflict with, (A) result in a material breach of any term or constitute a default under any provision of the terms, conditions charter or provisions of the certificate of incorporation or the by-laws of the Depositor or (B) materially conflict with, result in a violation or acceleration of, or result in a material default under, the terms of any indenture, other material agreement or instrument to which the Depositor is a party or by which it is boundmay be bound or (C) constitute a material violation of any statute, or any order or decree regulation applicable to the Depositor of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Depositor; and the Depositor is not in breach or violation of any material indenture or other material agreement or instrument, or result in the creation or imposition violation of any lien on statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Depositor's ability to perform or meet any of its obligations under this Agreement.
(iv) No litigation is pending, or, to the best of the Depositor's assets or propertyknowledge, which threatened, against the Depositor that would materially and adversely affect the execution, delivery or enforceability of this Agreement and the Sale Agreement or the ability of the Depositor to carry out perform its obligations under this Agreement and the transactions contemplated by this Agreement; Sale Agreement in accordance with the Depositor has obtained any terms hereof.
(v) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Depositor of, or compliance by the Depositor with, this Agreement and the Sale Agreement or the consummation of this Agreement;
(iv) There the transactions contemplated hereby, or if any such consent, approval, authorization or order is no actionrequired, suit or proceeding pending or, the Depositor has obtained the same. The Depositor hereby represents and warrants to the Depositor's knowledgeTrustee with respect to each Mortgage Loan as of the Closing Date, threatened against and following the Depositor in any court or by or before any other governmental agency or instrumentality which would materially and adversely affect the validity transfer of the Mortgage Loans or to it by the ability of Seller, the Depositor had good title to carry out the transactions contemplated by this Agreement; and
(v) The Depositor is the lawful owner of the Mortgage Loans free and clear of all liensthe Mortgage Notes were subject to no offsets, claims, encumbrances liens, mortgage, pledge, charge, security interest, defenses or counterclaims.
(b) The representations and other interests warranties of the Transferor with the full right respect to transfer the Mortgage Loans contained in the Transfer Agreement were made as of the date specified in the Transfer Agreement and brought forward to the Trust Closing Date pursuant to the Bring Down Letter. The representations and warranties of the Transferor with respect to the Mortgage Loans have been validly transferred contained in the Bring Down Letter were made as of the Closing Date. The representations and warranties of the Seller with respect to the TrustMortgage Loans contained in the Sale Agreement were made as of the Closing Date. To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of both (i) a representation or warranty of the Transferor under the Transfer Agreement and (ii) a representation or warranty of the Seller under the Sale Agreement, the only right or remedy of the Trustee, the NIMs Insurer or of any Certificateholder shall be the Trustee's right to enforce the obligations of the Transferor under any applicable representation or warranty made by it. The representations, warranties and covenants of Trustee acknowledges that the Depositor set forth in this Section 2.04 Seller shall survive the execution and delivery of this Agreement and shall inure have no obligation or liability with respect to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any breach of any of such representationsa representation or warranty made by it with respect to the Mortgage Loans if the fact, warranties and covenants, the party discovering condition or event constituting such breach shall give prompt written notice thereof to the other parties.also constitutes
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Trust Series 2004-Fm1)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, represents and warrants and covenants to the TrusteeServicer, for its own benefit the Trustee and the benefit of the Certificateholders, and to the Fiscal Agent, the Master Servicer and the Special ServicerNIMs Insurer as follows, as of the Closing Date, thatdate hereof:
(i) The Depositor is duly organized and is validly existing as a corporation duly organized, validly existing and in good standing under the laws of the State of DelawareDelaware and has full power and authority (corporate and other) necessary to own or hold its properties and to conduct its business as now conducted by it and to enter into and perform its obligations under this Agreement and the Sale Agreement.
(ii) The Depositor has the full corporate power and authority to execute, deliver and perform, and to enter into and consummate the Depositor transactions contemplated by, this Agreement and the Sale Agreement and has taken duly authorized, by all necessary corporate action to authorize on its part, the execution, delivery and performance of this Agreement by it, and has the power Sale Agreement; and authority to execute, deliver and perform this Agreement and all the transactions contemplated herebySale Agreement, including, but not limited to, the power and authority to sell, assign and transfer the Mortgage Loans in accordance with this Agreement;
(ii) Assuming assuming the due authorization, execution and delivery of this Agreement hereof by each the other party parties hereto, this Agreement and all of the obligations of the Depositor hereunder are the constitutes a legal, valid and binding obligations obligation of the Depositor, enforceable against the Depositor in accordance with the terms of this Agreementits terms, except subject, as such enforcement may be limited by to enforceability, to (i) bankruptcy, insolvency, reorganization or reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally, generally and by (ii) general principles of equity (equity, regardless of whether such enforceability enforcement is considered sought in a proceeding in equity or at law);.
(iii) The execution and delivery of this Agreement and the performance of its obligations hereunder Sale Agreement by the Depositor, the consummation of the transactions contemplated by this Agreement and the Sale Agreement, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Depositor and will not conflict with any provisions of any law or regulations to which the Depositor is subject, or conflict with, (A) result in a material breach of any term or constitute a default under any provision of the terms, conditions charter or provisions of the certificate of incorporation or the by-laws of the Depositor or (B) materially conflict with, result in a violation or acceleration of, or result in a material default under, the terms of any indenture, other material agreement or instrument to which the Depositor is a party or by which it is boundmay be bound or (C) constitute a material violation of any statute, or any order or decree regulation applicable to the Depositor of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Depositor; and the Depositor is not in breach or violation of any material indenture or other material agreement or instrument, or result in the creation or imposition violation of any lien on statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Depositor's ability to perform or meet any of its obligations under this Agreement.
(iv) No litigation is pending, or, to the best of the Depositor's assets or propertyknowledge, which threatened, against the Depositor that would materially and adversely affect the execution, delivery or enforceability of this Agreement and the Sale Agreement or the ability of the Depositor to carry out perform its obligations under this Agreement and the transactions contemplated by this Agreement; Sale Agreement in accordance with the Depositor has obtained any terms hereof.
(v) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Depositor of, or compliance by the Depositor with, this Agreement and the Sale Agreement or the consummation of this Agreement;
(iv) There the transactions contemplated hereby, or if any such consent, approval, authorization or order is no actionrequired, suit or proceeding pending or, the Depositor has obtained the same. The Depositor hereby represents and warrants to the Depositor's knowledgeTrustee with respect to each Mortgage Loan as of the Closing Date, threatened against and following the Depositor in any court or by or before any other governmental agency or instrumentality which would materially and adversely affect the validity transfer of the Mortgage Loans or to it by the ability of Seller, the Depositor had good title to carry out the transactions contemplated by this Agreement; and
(v) The Depositor is the lawful owner of the Mortgage Loans free and clear of all liensthe Mortgage Notes were subject to no offsets, claims, encumbrances liens, mortgage, pledge, charge, security interest, defenses or counterclaims.
(b) The representations and other interests warranties of each Transferor with respect to the full related Mortgage Loans in the applicable Transfer Agreement, which have been assigned to the Trustee hereunder, were made as of the date specified in the applicable Transfer Agreement (or underlying agreement, if such Transfer Agreement is in the form of an assignment of a prior agreement). To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of both (i) a representation or warranty of the applicable Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under the Sale Agreement, the only right or remedy of the Trustee, the NIMs Insurer or of any Certificateholder shall be the Trustee's right to transfer enforce the obligations of the applicable Transferor under any applicable representation or warranty made by it. The Trustee acknowledges that the Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Mortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the applicable Transferor in the applicable Transfer Agreement, without regard to whether such Transferor fulfills its contractual obligations in respect of such representation or warranty. The Trustee further acknowledges that the Trust and Depositor shall have no obligation or liability with respect to any breach of any representation or warranty with respect to the Mortgage Loans have been validly transferred to the Trust. The representations, warranties and covenants of the Depositor (except as set forth in this Section 2.04 shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. 2.03(a)(v)) under any circumstances.
(c) Upon discovery by any party hereto of any the Depositor, the NIMs Insurer, or the Trustee of a breach of any of such representationsrepresentations and warranties that adversely and materially affects the value of the related Mortgage Loan, warranties and covenantsprepayment charges or the interests of the Certificateholders, the party discovering such breach shall give prompt written notice thereof to the other parties. Within 90 days of the discovery of a breach of any representation or warranty given to the Trustee by the Depositor, any Transferor, the Seller and assigned to the Trustee, the Depositor, such Transferor or the Seller, as applicable, shall either (a) cure such breach in all material respects, (b) repurchase such Mortgage Loan or any property acquired in respect thereof from the Trustee at the Purchase Price or (c) within the two year period following the Closing Date, substitute a Replacement Mortgage Loan for the affected Mortgage Loan. In the event of discovery of a breach of any representation and warranty of any Transferor or the Depositor, the Trustee shall enforce its rights under the applicable Transfer Agreement and the Sale Agreement for the benefit of Certificateholders and the NIMs Insurer. If a breach of the representations and warranties set forth in the Transfer Agreement hereof exists solely due to the unenforceability of a prepayment charge, the Trustee shall notify the NIMs Insurer thereof and not seek to enforce the repurchase remedy provided for herein unless directed in writing to do so by the NIMs Insurer. In the event of a breach of the representations and warranties with respect to the Mortgage Loans set forth in a Transfer Agreement, the Trustee shall at the request of the NIMs Insurer enforce the right of the Trust Fund and the NIMs Insurer to be indemnified for such breach of representation and warranty. In the event that such breach relates solely to the unenforceability of a prepayment charge, amounts received in respect of such indemnity up to the amount of such prepayment charge shall be distributed pursuant to Section 4.04(b)(i)(B). As provided in the Sale Agreement, if the Transferor substitutes for a Mortgage Loan for which there is a breach of any representations and warranties in the related Transfer Agreement which adversely and materially affects the value of such Mortgage Loan and such substitute mortgage loan is not a Replacement Mortgage Loan, under the terms of the Sale Agreement, the Seller will, in exchange for such substitute Mortgage Loan, (i) provide the applicable Purchase Price for the affected Mortgage Loan or (ii) within two years of the Closing Date, substitute such affected Mortgage Loan with a Replacement Mortgage Loan. Any such substitution shall not be effected prior to the additional delivery to the Trustee of a Request for Release substantially in the form of Exhibit I and shall not be effected unless it is within two years of the Startup Date. As provided in the Sale Agreement, the Seller indemnifies and holds the Trust Fund, the Trustee, the Depositor, the NIMs Insurer, the Servicer and each Certificateholder harmless against any and all taxes, claims, losses, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, fees and expenses that the Trust Fund, the Trustee, the Depositor, the NIMs Insurer, the Servicer and any Certificateholder may sustain in connection with any actions of the Seller relating to a repurchase of a Mortgage Loan other than in compliance with the terms of this Section 2.03 and the Sale Agreement, to the extent that any such action causes (i) any federal or state tax to be imposed on the Trust Fund or any REMIC provided for herein, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup date" under Section 860(d)(1) of the Code, or (ii) any REMIC created hereunder to fail to qualify as a REMIC at any time that any Certificate is outstanding. With respect to any Mortgage Loan repurchased by the Depositor pursuant to this Agreement, by the Seller pursuant to the Sale Agreement or by any Transferor pursuant to the applicable Transfer Agreement, the principal portion of the funds received by the Trustee in respect of such repurchase of a Mortgage Loan will be considered a Principal Prepayment and shall be deposited in the Certificate Account pursuant to Section 3.05. The Trustee, upon receipt of the full amount of the Purchase Price for a Deleted Mortgage Loan, or upon receipt of the Mortgage File for a Replacement Mortgage Loan substituted for a Deleted Mortgage Loan, shall release or cause to be released and reassign to the Depositor, the Seller or the applicable Transferor, as applicable, the related Mortgage File for the Deleted Mortgage Loan and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation or warranty, as shall be necessary to vest in such party or its designee or assignee title to any Deleted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Trustee, and the Trustee shall not have any further responsibility with respect to the Mortgage File relating to such Deleted Mortgage Loan. With respect to each Replacement Mortgage Loan to be delivered to the Trustee pursuant to the terms of this Article II in exchange for a Deleted Mortgage Loan: (i) the Depositor, the applicable Transferor or the Seller, as applicable, must deliver to the Trustee the Mortgage File for the Replacement Mortgage Loan containing the documents set forth in Section 2.01 along with a written certification certifying as to the delivery of such Mortgage File and containing the granting language set forth in Section 2.01; and (ii) the Depositor will be deemed to have made, with respect to such Replacement Mortgage Loan, each of the representations and warranties made by it with respect to the related Deleted Mortgage Loan. The Trustee shall review the Mortgage File with respect to each Replacement Mortgage Loan and certify to the NIMs Insurer and the Depositor that all documents required by Section 2.01 have been executed and received. For any month in which the Seller substitutes one or more Replacement Mortgage Loans for one or more Deleted Mortgage Loans, the Seller will determine the amount (if any) by which the aggregate principal balance of all such Replacement Mortgage Loans as of the date of substitution and the aggregate prepayment penalties with respect to such Replacement Mortgage Loans is less than the aggregate Stated Principal Balance (after application of the principal portion of the Scheduled Payment due in the month of substitution) and aggregate prepayment penalties of all such Deleted Mortgage Loans. An amount equal to the aggregate of the deficiencies described in the preceding sentence (such amount, the "Substitution Adjustment Amount") shall be deposited into the Certificate Account by the Seller on the Determination Date for the Distribution Date relating to the Prepayment Period during which the related Mortgage Loan became required to be purchased or replaced hereunder. Notwithstanding any other provision of this Agreement, the right to substitute Mortgage Loans pursuant to this Article II shall be subject to the additional limitations that no substitution of a Replacement Mortgage Loan for a Deleted Mortgage Loan shall be made unless the Trustee and the NIMs Insurer have received an Opinion of Counsel (at the expense of the party seeking to make the substitution) that, under current law, such substitution will not (A) affect adversely the status of any REMIC established hereunder as a REMIC, or of the related "regular interests" as "regular interests" in any such REMIC, or (B) cause any such REMIC to engage in a "prohibited transaction" or prohibited contribution pursuant to the REMIC Provisions. The Trustee shall cause the Mortgage Loan Schedule to be amended in accordance with the terms of this Agreement. The Seller shall give or cause to be given written notice to the Certificateholders and the NIMS Insurer that such substitution has taken place, shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Replacement Mortgage Loan or Replacement Mortgage Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the NIMS Insurer and the Trustee. Upon such substitution by the Seller, such Replacement Mortgage Loan or Replacement Mortgage Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and the Sale Agreement, including all applicable representations and warranties thereof included in the Sale Agreement as of the date of substitution. In addition, the Seller shall obtain at its own expense and deliver to the Trustee and the NIMS Insurer an Opinion of Counsel to the effect that such substitution will not (a) cause any federal tax to be imposed on the Trust Fund or any REMIC provided for herein, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup date" under Section 860G(d)(1) of the Code or (b) adversely affect the status of any REMIC provided for herein as a REMIC. If any such Opinion of Counsel can not be delivered, then such substitution may only be effected at such time as the required Opinion of Counsel can be given.
(d) It is understood and agreed that the representations, warranties and indemnification (i) set forth in Section 2.03, (ii) of the Seller and the Depositor set forth in the Sale Agreement and assigned to the Trustee by the Depositor hereunder and (iii) of each Transferor, assigned by the Seller to the Depositor pursuant to the Sale Agreement and assigned to the Trustee by the Depositor hereunder shall each survive delivery of the Mortgage Files and the Assignment of Mortgage of each Mortgage Loan to the Trustee and shall continue throughout the term of this Agreement.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Inc)
Representations, Warranties and Covenants of the Depositor. Mortgage Loan Seller's Repurchase of Mortgage Loans for Defects in Mortgage Files and Breaches of Representations and Warranties.
(a) The Depositor hereby represents, represents and warrants and covenants to the Trustee, for its own benefit and the benefit of the Certificateholders, and to the Fiscal Agent, the Master Servicer and the Special Servicer, as of the Closing Date, that:
(i) The Depositor is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, and the Depositor has taken all necessary corporate action to authorize the execution, delivery and performance of this Agreement by it, and has the power and authority to execute, deliver and perform this Agreement and all the transactions contemplated hereby, including, but not limited to, the power and authority to sell, assign and transfer the Mortgage Loans in accordance with this Agreement;
(ii) Assuming the due authorization, execution and delivery of this Agreement by each other party hereto, this Agreement and all of the obligations of the Depositor hereunder are the legal, valid and binding obligations of the Depositor, enforceable against the Depositor in accordance with the terms of this Agreement, except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally, and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law);
(iii) The execution and delivery of this Agreement and the performance of its obligations hereunder by the Depositor will not conflict with any provisions of any law or regulations to which the Depositor is subject, or conflict with, result in a breach of or constitute a default under any of the terms, conditions or provisions of the certificate of incorporation or the by-laws of the Depositor or any indenture, agreement or instrument to which the Depositor is a party or by which it is bound, or any order or decree applicable to the Depositor, or result in the creation or imposition of any lien on any of the Depositor's assets or property, which would materially and adversely affect the ability of the Depositor to carry out the transactions contemplated by this Agreement; the Depositor has obtained any consent, approval, authorization or order of any court or governmental agency or body required for the execution, delivery and performance by the Depositor of this Agreement;
(iv) There is no action, suit or proceeding pending or, to the Depositor's knowledge, threatened against the Depositor in any court or by or before any other governmental agency or instrumentality which would materially and adversely affect the validity of the Mortgage Loans or the ability of the Depositor to carry out the transactions contemplated by this Agreement; and
(v) The Depositor is the lawful owner of the Mortgage Loans free and clear of all liens, claims, encumbrances and other interests with the full right to transfer the Mortgage Loans to the Trust and the Mortgage Loans have been validly transferred to the Trust. The representations.
(b) If any Certificateholder, warranties and covenants the Servicer, the Special Servicer or the Trustee discovers or receives notice of the Depositor set forth a Defect in this Section 2.04 shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any Mortgage File or a breach of any of such representationsrepresentation or warranty set forth in, warranties and covenantsor required to be made with respect to a Mortgage Loan by a Mortgage Loan Seller pursuant to, the party discovering related Mortgage Loan Purchase Agreement (a "Breach"), which Defect or Breach, as the case may be, materially and adversely affects the value of any Mortgage Loan or the interests of the Certificateholders therein, such breach Certificateholder, the Servicer, the Special Servicer or the Trustee, as applicable, shall give prompt written notice thereof of such Defect or Breach, as the case may be, to the Depositor, the Servicer, the Special Servicer and the related Mortgage Loan Seller and shall request that such Mortgage Loan Seller, not later than the earlier of 90 days from such Mortgage Loan Seller's receipt of such notice or such Mortgage Loan Seller's discovery of such Breach, cure such Defect or Breach, as the case may be, in all material respects or repurchase the affected Mortgage Loan at the applicable Purchase Price or in conformity with the related Mortgage Loan Purchase Agreement. Any Defect or Breach which causes any Mortgage Loan not to be a "qualified mortgage" (within the meaning of Section 860G(a)(3) of the Code) shall be deemed to materially and adversely affect the interest of Certificateholders therein. If the affected Mortgage Loan is to be repurchased, the Trustee shall designate the Certificate Account as the account into which funds in the amount of the Purchase Price are to be deposited by wire transfer.
(c) In connection with any repurchase of a Mortgage Loan contemplated by this Section 2.03, the Trustee, the Servicer and the Special Servicer shall each tender to the applicable Mortgage Loan Seller, upon delivery to each of the Trustee, the Servicer and the Special Servicer of a trust receipt executed by such Mortgage Loan Seller, all portions of the Mortgage File and other partiesdocuments pertaining to such Mortgage Loan possessed by it, and each document that constitutes a part of the Mortgage File that was endorsed or assigned to the Trustee shall be endorsed or assigned, as the case may be, to such Mortgage Loan Seller in the same manner as provided in Section 3 of the related Mortgage Loan Purchase Agreement.
(d) Section 3 of each Mortgage Loan Purchase Agreement provides the sole remedy available to the Certificateholders, or the Trustee on behalf of the Certificateholders, respecting any Defect in a Mortgage File or any Breach of any representation or warranty set forth in or required to be made pursuant to Section 2 of such Mortgage Loan Purchase Agreement.
(e) The Trustee and the Special Servicer (in the case of Specially Serviced Mortgage Loans) shall, for the benefit of the Certificateholders, enforce the obligations of each Mortgage Loan Seller under Section 3 of the Mortgage Loan Purchase Agreements. Such enforcement, including, without limitation, the legal prosecution of claims, shall be carried out in such form, to such extent and at such time as the Trustee or the Special Servicer, as the case may be, would require were it, in its individual capacity, the owner of the affected Mortgage Loan(s). The Trustee and the Special Servicer, as the case maybe, shall be reimbursed for the reasonable costs of such enforcement: first, from a specific recovery of costs, expenses or attorneys' fees against the applicable Mortgage Loan Seller; second, pursuant to Section 3.05(a)(vii) out of the related Purchase Price, to the extent that such expenses are a specific component thereof; and third, if at the conclusion of such enforcement action it is determined that the amounts described in clauses first and second are insufficient, then pursuant to Section 3.05(a)(viii) out of general collections on the Mortgage Loans on deposit in the Certificate Account.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Inc)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, represents and warrants and covenants to the Trustee, for its own benefit and the benefit of the Certificateholders, and to the Fiscal Agent, the Master Servicer and the Special ServicerSecurityholders, as of the Closing DateDate or such other date as is specified, that:: 126031 Bayview 2005-1 Trust Agreement
(i) The Depositor is a corporation real estate investment trust duly organizedformed, validly existing and in good standing under the laws of the State of DelawareMaryland, and is duly qualified to do business, and is in good standing in each jurisdiction in which the nature of its business requires it to be so qualified, except to the extent that the failure to be so qualified would not reasonably be expected to have a material adverse effect on its business or financial condition or ability to perform its obligations under this Agreement. The Depositor has full power and authority to conduct its business as currently conducted by it and to execute and deliver this Agreement and perform its obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the Depositor has taken and its performance and compliance with the terms of this Agreement have been duly authorized by all necessary corporate action to authorize on the part of the Depositor.
(iii) This Agreement, has been duly executed and delivered by the Depositor and constitutes a valid, legal and binding obligation of the Depositor, enforceable against it in accordance with the terms hereof, except as the enforcement hereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally and by general principles of equity (whether considered in a proceeding or action in equity or at law).
(iv) The Depositor is not in violation of, and the execution, delivery and performance of this Agreement by it, the Depositor and has its compliance with the power and authority to execute, deliver and perform this Agreement and all the transactions contemplated hereby, including, but terms hereof will not limited constitute a violation with respect to, any existing law or regulation or any order or decree of any court or any order, regulation or demand of any federal, state, municipal or governmental agency, which violation would materially and adversely affect the power condition (financial or other) or operations of the Depositor or its properties or would have consequences that would adversely affect its performance hereunder. The execution, delivery and authority to sell, assign and transfer the Mortgage Loans in accordance with this Agreement;
(ii) Assuming the due authorization, execution and delivery performance of this Agreement by each other party hereto, this Agreement and all of the obligations of the Depositor hereunder are the legal, valid and binding obligations of the Depositor, enforceable against the Depositor in accordance its compliance with the terms of this Agreement, except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally, and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law);
(iii) The execution and delivery of this Agreement and the performance of its obligations hereunder by the Depositor hereof will not conflict with any provisions of any law or regulations to which the Depositor is subject, or conflict with, result in a any breach of or constitute a default under any of the termsterms and provisions of, conditions or provisions constitute (with or without notice, lapse of time or both) a default under, the governing instrument of the certificate of incorporation or the by-laws of the Depositor Depositor, or any material indenture, agreement agreement, mortgage, deed of trust or other instrument to which the Depositor is a party or by which it is bound, or any order or decree applicable to the Depositor, or result in the creation or imposition of any lien on or encumbrance upon any of its material properties pursuant to the terms of any such indenture, agreement, mortgage, deed of trust or other instrument.
(v) No litigation, actions, proceedings or investigations are pending or, to the best of the Depositor's assets knowledge, threatened against the Depositor which would have consequences that would prohibit its entering into this Agreement or property, which that would materially and adversely affect the ability condition (financial or otherwise) or operations of the Depositor to carry out or its properties or would have consequences that would adversely affect its performance hereunder, or the validity or enforceability of this Agreement, or prevent the consummation of any of the transactions contemplated by this Agreement; .
(vi) No certificate of an officer, statement furnished in writing or report delivered or to be delivered pursuant to the terms hereof by the Depositor has obtained contains or will 126031 Bayview 2005-1 Trust Agreement contain any consentuntrue statement of a material fact or omits or will omit to state any material fact necessary to make the certificate, approvalstatement or report, authorization in light of the circumstances in which it was made or order of will be made, not misleading.
(vii) 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 court or any federal, state or other governmental authority or agency or body that are required for in connection with the execution, delivery and performance by the Depositor of this Agreement, have been duly taken, given or obtained, as the case may be, are in full force and effect on the date hereof, are not subject to any pending proceedings or appeals (administrative, judicial or otherwise) and either the time within which any appeal therefrom may be taken or review thereof may be obtained has expired or no review thereof may be obtained or appeal therefrom taken, and are adequate to authorize the consummation of the transactions contemplated by this Agreement on the part of the Depositor and the performance by the Depositor of its obligations under this Agreement.
(viii) The Depositor is conveying to the Trust Fund its entire interest in the Mortgage Loans, free and clear of any Adverse Claim.
(ix) The Depositor is solvent and the transfer of the Mortgage Loans will not cause the Depositor to become insolvent. The sale of the Mortgage Loans is not undertaken with the intent to hinder, delay or defraud any of the Depositor's creditors.
(x) The Depositor has not acquired, and will not at any time acquire, any loan that is a "high cost" or "covered" loan within the meaning of the Georgia Fair Lending Act, or any interest in any such loan.
(b) With respect to the Mortgage Notes, the Depositor hereby represents and warrants to the Servicer and the Trustee for their own benefit and for the benefit of the Securityholders that as of the Closing Date:
(i) The Mortgage Notes constitute "instruments" within the meaning of the Uniform Commercial Code in effect in the applicable jurisdiction;
(ii) The Depositor owns and has good title to the Mortgage Notes free and clear of any lien, claim or encumbrance of any Person;
(iii) The Depositor has received all consents and approvals required by the terms of the Mortgage Notes to the transfer of the Mortgage Notes hereunder to the Trustee;
(iv) There is no action, suit All original executed copies of each Mortgage Note have been or proceeding pending or, will be delivered to the Depositor's knowledgeTrustee, threatened against the Depositor as set forth in any court or by or before any other governmental agency or instrumentality which would materially and adversely affect the validity of the Mortgage Loans or the ability of the Depositor to carry out the transactions contemplated by this Agreement (except as otherwise provided for herein); 126031 Bayview 2005-1 Trust Agreement; and
(v) The Depositor has received a written acknowledgement from the Trustee that the Trustee is holding the lawful owner Mortgage Notes solely on behalf and for the benefit of the Securityholders;
(vi) Other than the transfer to the Trustee pursuant to this Agreement, the Depositor has not pledged, assigned, sold, granted a security interest in, or otherwise conveyed any of the Mortgage Loans free Notes. The Depositor has not authorized the filing of and clear is not aware of all liens, claims, encumbrances and other interests with any financing statements against the full right to transfer Depositor that include a description of the collateral covering the Mortgage Loans Notes other than a financing statement relating to the Trust and transfer to the Trustee hereunder or that has been terminated. The Depositor is not aware of any judgment or tax lien filings against the Depositor; and
(vii) None of the Mortgage Loans Notes has any marks or notations indicating that they have been validly transferred pledged, assigned or otherwise conveyed to any Person other than the TrustTrustee on behalf of Securityholders. The representations, representations and warranties and covenants of the Depositor set forth in this Section 2.04 2.03(b) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any breach of any of such representations, warranties and covenants, the party discovering such breach shall give prompt written notice thereof to the other partiesnot be waived.
Appears in 1 contract
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, represents and warrants and covenants to the TrusteeServicer, for its own benefit the Trustee and the benefit of the Certificateholders, and to the Fiscal Agent, the Master Servicer and the Special ServicerNIMs Insurer as follows, as of the Closing Date, thatdate hereof:
(i) The Depositor is duly organized and is validly existing as a corporation duly organized, validly existing and in good standing under the laws of the State of DelawareDelaware and has full power and authority (corporate and other) necessary to own or hold its properties and to conduct its business as now conducted by it and to enter into and perform its obligations under this Agreement and the Sale Agreement.
(ii) The Depositor has the full corporate power and authority to execute, deliver and perform, and to enter into and consummate the Depositor transactions contemplated by, this Agreement and the Sale Agreement and has taken duly authorized, by all necessary corporate action to authorize on its part, the execution, delivery and performance of this Agreement by it, and has the power Sale Agreement; and authority to execute, deliver and perform this Agreement and all the transactions contemplated herebySale Agreement, including, but not limited to, the power and authority to sell, assign and transfer the Mortgage Loans in accordance with this Agreement;
(ii) Assuming assuming the due authorization, execution and delivery of this Agreement hereof by each the other party parties hereto, this Agreement and all of the obligations of the Depositor hereunder are the constitutes a legal, valid and binding obligations obligation of the Depositor, enforceable against the Depositor in accordance with the terms of this Agreementits terms, except subject, as such enforcement may be limited by to enforceability, to (i) bankruptcy, insolvency, reorganization or reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally, generally and by (ii) general principles of equity (equity, regardless of whether such enforceability enforcement is considered sought in a proceeding in equity or at law);.
(iii) The execution and delivery of this Agreement and the performance of its obligations hereunder Sale Agreement by the Depositor, the consummation of the transactions contemplated by this Agreement and the Sale Agreement, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Depositor and will not conflict with any provisions of any law or regulations to which the Depositor is subject, or conflict with, (A) result in a material breach of any term or constitute a default under any provision of the terms, conditions charter or provisions of the certificate of incorporation or the by-laws of the Depositor or (B) materially conflict with, result in a violation or acceleration of, or result in a material default under, the terms of any indenture, other material agreement or instrument to which the Depositor is a party or by which it is boundmay be bound or (C) constitute a material violation of any statute, or any order or decree regulation applicable to the Depositor of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Depositor; and the Depositor is not in breach or violation of any material indenture or other material agreement or instrument, or result in the creation or imposition violation of any lien on statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Depositor's ability to perform or meet any of its obligations under this Agreement.
(iv) No litigation is pending, or, to the best of the Depositor's assets or propertyknowledge, which threatened, against the Depositor that would materially and adversely affect the execution, delivery or enforceability of this Agreement and the Sale Agreement or the ability of the Depositor to carry out perform its obligations under this Agreement and the transactions contemplated by this Agreement; Sale Agreement in accordance with the Depositor has obtained any terms hereof.
(v) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Depositor of, or compliance by the Depositor with, this Agreement and the Sale Agreement or the consummation of this Agreement;
(iv) There the transactions contemplated hereby, or if any such consent, approval, authorization or order is no actionrequired, suit or proceeding pending or, the Depositor has obtained the same. The Depositor hereby represents and warrants to the Depositor's knowledgeTrustee with respect to each Mortgage Loan as of the Closing Date, threatened against and following the Depositor in any court or by or before any other governmental agency or instrumentality which would materially and adversely affect the validity transfer of the Mortgage Loans or to it by the ability of Seller, the Depositor had good title to carry out the transactions contemplated by this Agreement; and
(v) The Depositor is the lawful owner of the Mortgage Loans free and clear of all liensthe Mortgage Notes were subject to no offsets, claims, encumbrances liens, mortgage, pledge, charge, security interest, defenses or counterclaims.
(b) The representations and other interests warranties of CIT and Fieldstone with the full right respect to transfer the Mortgage Loans contained in the related Transfer Agreement were made as of the date of the related Transfer Agreement and brought forward to the Trust Closing Date pursuant to the related Bring Down Letter. The representations and warranties of CIT and Fieldstone with respect to the Mortgage Loans have been validly transferred contained in the related Bring Down Letter were made as of the Closing Date. The representations and warranties of the Seller with respect to the TrustMortgage Loans generally and with respect to the Mortgage Loans originated by Ownit contained in the Sale Agreement were made as of the Closing Date. To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of both (i) a representation or warranty of CIT or Fieldstone under the related Transfer Agreement and (ii) a representation or warranty of the Seller under the Sale Agreement, the only right or remedy of the Trustee, the NIMs Insurer or of any Certificateholder shall be the Trustee's right to enforce the obligations of the Transferor under any applicable representation or warranty made by it. The representationsTrustee acknowledges that the Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Mortgage Loans if the fact, warranties and covenants condition or event constituting such breach also constitutes a breach of a representation or warranty made by CIT or Fieldstone in the related Transfer Agreement, without regard to whether the Transferor fulfills its contractual obligations in respect of such representation or warranty. The Trustee also acknowledges that the Seller shall have no obligation or liability with respect to any breach of a representation or warranty made solely by CIT or Fieldstone with respect to the Mortgage Loans, without regard to whether the Transferor fulfills its contractual obligations in respect of such representation or warranty. The Trustee further acknowledges that the Depositor set forth in this Section 2.04 shall survive the execution and delivery of this Agreement and shall inure have no obligation or liability with respect to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any breach of any of such representations, warranties and covenants, the party discovering such breach shall give prompt written notice thereof representation or warranty with respect to the other partiesMortgage Loans (except as set forth in Section 2.03(a)(v)) under any circumstances.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Inc)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, represents and warrants and covenants to the TrusteeServicer, for its own benefit the Trustee and the benefit of the Certificateholders, and to the Fiscal Agent, the Master Servicer and the Special ServicerClass A-1B Certificate Insurer as follows, as of the Closing Date, thatdate hereof:
(i) The Depositor is duly organized and is validly existing as a corporation duly organized, validly existing and in good standing under the laws of the State of DelawareDelaware and has full power and authority (corporate and other) necessary to own or hold its properties and to conduct its business as now conducted by it and to enter into and perform its obligations under this Agreement and the Sale Agreement.
(ii) The Depositor has the full corporate power and authority to execute, deliver and perform, and to enter into and consummate the Depositor transactions contemplated by, this Agreement and the Sale Agreement and has taken duly authorized, by all necessary corporate action to authorize on its part, the execution, delivery and performance of this Agreement by it, and has the power Sale Agreement; and authority to execute, deliver and perform this Agreement and all the transactions contemplated herebySale Agreement, including, but not limited to, the power and authority to sell, assign and transfer the Mortgage Loans in accordance with this Agreement;
(ii) Assuming assuming the due authorization, execution and delivery of this Agreement hereof by each the other party parties hereto, this Agreement and all of the obligations of the Depositor hereunder are the constitutes a legal, valid and binding obligations obligation of the Depositor, enforceable against the Depositor in accordance with the terms of this Agreementits terms, except subject, as such enforcement may be limited by to enforceability, to (i) bankruptcy, insolvency, reorganization or reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally, generally and by (ii) general principles of equity (equity, regardless of whether such enforceability enforcement is considered sought in a proceeding in equity or at law);.
(iii) The execution and delivery of this Agreement and the performance of its obligations hereunder Sale Agreement by the Depositor, the consummation of the transactions contemplated by this Agreement and the Sale Agreement, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Depositor and will not conflict with any provisions of any law or regulations to which the Depositor is subject, or conflict with, (A) result in a material breach of any term or constitute a default under any provision of the terms, conditions charter or provisions of the certificate of incorporation or the by-laws of the Depositor or (B) materially conflict with, result in a violation or acceleration of, or result in a material default under, the terms of any indenture, other material agreement or instrument to which the Depositor is a party or by which it is boundmay be bound or (C) constitute a material violation of any statute, or any order or decree regulation applicable to the Depositor of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Depositor; and the Depositor is not in breach or violation of any material indenture or other material agreement or instrument, or result in the creation or imposition violation of any lien on statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Depositor's ability to perform or meet any of its obligations under this Agreement.
(iv) No litigation is pending, or, to the best of the Depositor's assets or propertyknowledge, which threatened, against the Depositor that would materially and adversely affect the execution, delivery or enforceability of this Agreement and the Sale Agreement or the ability of the Depositor to carry out perform its obligations under this Agreement and the transactions contemplated by this Agreement; Sale Agreement in accordance with the Depositor has obtained any terms hereof.
(v) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Depositor of, or compliance by the Depositor with, this Agreement and the Sale Agreement or the consummation of this Agreement;
(iv) There the transactions contemplated hereby, or if any such consent, approval, authorization or order is no actionrequired, suit or proceeding pending or, the Depositor has obtained the same. The Depositor hereby represents and warrants to the Depositor's knowledgeTrustee and the Class A-1B Certificate Insurer with respect to each Mortgage Loan as of the Closing Date, threatened against and following the Depositor in any court or by or before any other governmental agency or instrumentality which would materially and adversely affect the validity transfer of the Mortgage Loans or to it by the ability of Sponsor, the Depositor had good title to carry out the transactions contemplated by this Agreement; and
(v) The Depositor is the lawful owner of the Mortgage Loans free and clear of all liensthe Mortgage Notes were subject to no offsets, claims, encumbrances liens, mortgage, pledge, charge, security interest, defenses or counterclaims.
(b) The representations and other interests warranties of the Transferor with respect to the full right related Mortgage Loans in the Transfer Agreement, which have been assigned to transfer the Trustee hereunder, were made as of the date specified in the Transfer Agreement and certain of those representations and warranties have been brought forward to the Closing Date pursuant to the Bring Down Letter. The representations and warranties of the Transferor with respect to the Mortgage Loans contained in the Bring Down Letter were made as of the Closing Date. The representations and warranties of the Sponsor with respect to the Trust and the Mortgage Loans have been validly transferred to contained in the Trust. The representations, warranties and covenants Sale Agreement were made as of the Depositor Closing Date. To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of both (i) a representation or warranty of the Transferor under the Transfer Agreement or Bring Down Letter and (ii) a representation or warranty of the Sponsor under the Sale Agreement, the obligations of the Sponsor under the Sale Agreement shall be enforced against the Transferor or the Sponsor, as applicable, as set forth in this Section 2.04 the Sale Agreement. The Trustee acknowledges that the Sponsor shall survive have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to any related Mortgage Loans, if the execution and delivery fact, condition or event constituting such breach also constitutes a breach of this a representation or warranty made by the Transferor in the Transfer Agreement and or Bring Down Letter, without regard to whether the Transferor fulfills its contractual obligations in respect of such representation or warranty. The Trustee also acknowledges that the Sponsor shall inure have no obligation or liability with respect to any breach of a representation or warranty made solely by the Transferor with respect to the benefit Mortgage Loans, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty. The Trustee further acknowledges that the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of Depositor shall have no obligation or liability with respect to any breach of any of such representations, warranties and covenants, the party discovering such breach shall give prompt written notice thereof representation or warranty with respect to the other partiesMortgage Loans (except as set forth in Section 2.03(a)(v)) under any circumstances.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Inc)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, represents and warrants and covenants to the TrusteeServicer, for its own benefit the Trustee and the benefit of the Certificateholders, and to the Fiscal Agent, the Master Servicer and the Special ServicerNIMs Insurer as follows, as of the Closing Date, thatdate hereof:
(i) The Depositor is duly organized and is validly existing as a corporation duly organized, validly existing and in good standing under the laws of the State of DelawareDelaware and has full power and authority (corporate and other) necessary to own or hold its properties and to conduct its business as now conducted by it and to enter into and perform its obligations under this Agreement and the Sale Agreement.
(ii) The Depositor has the full corporate power and authority to execute, deliver and perform, and to enter into and consummate the Depositor transactions contemplated by, this Agreement and the Sale Agreement and has taken duly authorized, by all necessary corporate action to authorize on its part, the execution, delivery and performance of this Agreement by it, and has the power Sale Agreement; and authority to execute, deliver and perform this Agreement and all the transactions contemplated herebySale Agreement, including, but not limited to, the power and authority to sell, assign and transfer the Mortgage Loans in accordance with this Agreement;
(ii) Assuming assuming the due authorization, execution and delivery of this Agreement hereof by each the other party parties hereto, this Agreement and all of the obligations of the Depositor hereunder are the constitutes a legal, valid and binding obligations obligation of the Depositor, enforceable against the Depositor in accordance with the terms of this Agreementits terms, except subject, as such enforcement may be limited by to enforceability, to (i) bankruptcy, insolvency, reorganization or reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally, generally and by (ii) general principles of equity (equity, regardless of whether such enforceability enforcement is considered sought in a proceeding in equity or at law);.
(iii) The execution and delivery of this Agreement and the performance of its obligations hereunder Sale Agreement by the Depositor, the consummation of the transactions contemplated by this Agreement and the Sale Agreement, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Depositor and will not conflict with any provisions of any law or regulations to which the Depositor is subject, or conflict with, (A) result in a material breach of any term or constitute a default under any provision of the terms, conditions charter or provisions of the certificate of incorporation or the by-laws of the Depositor or (B) materially conflict with, result in a violation or acceleration of, or result in a material default under, the terms of any indenture, other material agreement or instrument to which the Depositor is a party or by which it is boundmay be bound or (C) constitute a material violation of any statute, or any order or decree regulation applicable to the Depositor of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Depositor; and the Depositor is not in breach or violation of any material indenture or other material agreement or instrument, or result in the creation or imposition violation of any lien on statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Depositor's ability to perform or meet any of its obligations under this Agreement.
(iv) No litigation is pending, or, to the best of the Depositor's assets or propertyknowledge, which threatened, against the Depositor that would materially and adversely affect the execution, delivery or enforceability of this Agreement and the Sale Agreement or the ability of the Depositor to carry out perform its obligations under this Agreement and the transactions contemplated by this Agreement; Sale Agreement in accordance with the Depositor has obtained any terms hereof.
(v) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Depositor of, or compliance by the Depositor with, this Agreement and the Sale Agreement or the consummation of this Agreement;
(iv) There the transactions contemplated hereby, or if any such consent, approval, authorization or order is no actionrequired, suit or proceeding pending or, the Depositor has obtained the same. The Depositor hereby represents and warrants to the Depositor's knowledgeTrustee with respect to each Mortgage Loan as of the Closing Date, threatened against and following the Depositor in any court or by or before any other governmental agency or instrumentality which would materially and adversely affect the validity transfer of the Mortgage Loans or to it by the ability of Seller, the Depositor had good title to carry out the transactions contemplated by this Agreement; and
(v) The Depositor is the lawful owner of the Mortgage Loans free and clear of all liensthe Mortgage Notes were subject to no offsets, claims, encumbrances liens, mortgage, pledge, charge, security interest, defenses or counterclaims.
(b) The representations and other interests warranties of the Transferor with the full right respect to transfer the Mortgage Loans contained in the Transfer Agreement were made as of the date specified in the Transfer Agreement and brought forward to the Trust Closing Date pursuant to the Bring Down Letter. The representations and warranties of the Transferor with respect to the Mortgage Loans have been validly transferred contained in the Bring Down Letter were made as of the Closing Date. The representations and warranties of the Seller with respect to the TrustMortgage Loans contained in the Sale Agreement were made as of the Closing Date. To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of both (i) a representation or warranty of the Transferor under the Transfer Agreement and (ii) a representation or warranty of the Seller under the Sale Agreement, the only rights or remedies of the Trustee, the NIMs Insurer or of any Certificateholder shall be first, the Trustee's right to enforce the obligations of the Transferor under any applicable representation or warranty made by it and, only if the Transferor is unable or unwilling to fulfill its obligations to cure or repurchase such Mortgage Loan, such party may seek to enforce any rights it may have against the Seller under the Sale Agreement. The representationsTrustee acknowledges that the Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Mortgage Loans if the fact, warranties and covenants condition or event constituting such breach also constitutes a breach of a representation or warranty made by the Transferor in the Transfer Agreement, without regard to whether the Transferor fulfills its contractual obligations in respect of such representation or warranty. The Trustee also acknowledges that the Seller shall have no obligation or liability with respect to any breach of a representation or warranty made solely by the Transferor with respect to the Mortgage Loans, without regard to whether the Transferor fulfills its contractual obligations in respect of such representation or warranty. The Trustee further acknowledges that the Depositor set forth in this Section 2.04 shall survive the execution and delivery of this Agreement and shall inure have no obligation or liability with respect to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any breach of any of such representations, warranties and covenants, the party discovering such breach shall give prompt written notice thereof representation or warranty with respect to the other parties.Mortgage Loans (except as set forth in Section 2.03(a)(v)) under any circumstances. In addition to the representations and warranties of the Transferor in the Transfer Agreement that were brought forward to the Closing Date pursuant to the Bring Down Letter, with respect to each
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Inc)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, represents and warrants and covenants to the TrusteeServicer, for its own benefit the Trustee and the benefit of the Certificateholders, and to the Fiscal Agent, the Master Servicer and the Special ServicerNIM Insurer as follows, as of the Closing Date, that:date hereof
(i) The Depositor is duly organized and is validly existing as a corporation duly organized, validly existing and in good standing under the laws of the State of DelawareDelaware and has full power and authority (corporate and other) necessary to own or hold its properties and to conduct its business as now conducted by it and to enter into and perform its obligations under this Agreement and the Sale Agreement.
(ii) The Depositor has the full corporate power and authority to execute, deliver and perform, and to enter into and consummate the Depositor transactions contemplated by, this Agreement and the Sale Agreement and has taken duly authorized, by all necessary corporate action to authorize on its part, the execution, delivery and performance of this Agreement by it, and has the power Sale Agreement; and authority to execute, deliver and perform this Agreement and all the transactions contemplated herebySale Agreement, including, but not limited to, the power and authority to sell, assign and transfer the Mortgage Loans in accordance with this Agreement;
(ii) Assuming assuming the due authorization, execution and delivery of this Agreement hereof by each the other party parties hereto, this Agreement and all of the obligations of the Depositor hereunder are the constitutes a legal, valid and binding obligations obligation of the Depositor, enforceable against the Depositor in accordance with the terms of this Agreementits terms, except subject, as such enforcement may be limited by to enforceability, to (i) bankruptcy, insolvency, reorganization or reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally, generally and by (ii) general principles of equity (equity, regardless of whether such enforceability enforcement is considered sought in a proceeding in equity or at law);.
(iii) The execution and delivery of this Agreement and the performance of its obligations hereunder Sale Agreement by the Depositor, the consummation of the transactions contemplated by this Agreement and the Sale Agreement, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Depositor and will not conflict with any provisions of any law or regulations to which the Depositor is subject, or conflict with, (A) result in a material breach of any term or constitute a default under any provision of the terms, conditions charter or provisions of the certificate of incorporation or the by-laws of the Depositor or (B) materially conflict with, result in a violation or acceleration of, or result in a material default under, the terms of any indenture, other material agreement or instrument to which the Depositor is a party or by which it is boundmay be bound or (C) constitute a material violation of any statute, or any order or decree regulation applicable to the Depositor of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Depositor; and the Depositor is not in breach or violation of any material indenture or other material agreement or instrument, or result in the creation or imposition violation of any lien on statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Depositor's ability to perform or meet any of its obligations under this Agreement.
(iv) No litigation is pending, or, to the best of the Depositor's assets or propertyknowledge, which threatened, against the Depositor that would materially and adversely affect the execution, delivery or enforceability of this Agreement and the Sale Agreement or the ability of the Depositor to carry out perform its obligations under this Agreement and the transactions contemplated by this Agreement; Sale Agreement in accordance with the Depositor has obtained any terms hereof.
(v) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Depositor of, or compliance by the Depositor with, this Agreement and the Sale Agreement or the consummation of this Agreement;
(iv) There the transactions contemplated hereby, or if any such consent, approval, authorization or order is no actionrequired, suit or proceeding pending or, the Depositor has obtained the same. The Depositor hereby represents and warrants to the Depositor's knowledgeTrustee with respect to each Mortgage Loan as of the Closing Date, threatened against and following the Depositor in any court or by or before any other governmental agency or instrumentality which would materially and adversely affect the validity transfer of the Mortgage Loans or to it by the ability of Seller, the Depositor had good title to carry out the transactions contemplated by this Agreement; and
(v) The Depositor is the lawful owner of the Mortgage Loans free and clear of all liensthe Mortgage Notes were subject to no offsets, claims, encumbrances and other interests liens, mortgage, pledge, charge, security interest, defenses or counterclaims.
(b) To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of a representation or warranty of the full Seller under the Sale Agreement, the only right or remedy of the Trustee, the NIM Insurer or of any Certificateholder shall be the Trustee's right to transfer enforce the obligations of the Seller under any applicable representation or warranty made by it. The Trustee acknowledges that the Depositor shall have no obligation or liability with respect to any breach of any representation or warranty with respect to the Mortgage Loans to the Trust and the Mortgage Loans have been validly transferred to the Trust. The representations, warranties and covenants of the Depositor (except as set forth in this Section 2.04 shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. 2.03(a)(v)) under any circumstances.
(c) Upon discovery by any party hereto of any the Depositor, the Servicer, the NIM Insurer, or the Trustee of a breach of any of such representationsrepresentations and warranties set forth in the Sale Agreement that adversely and materially affects the value of the related Mortgage Loan, warranties and covenantsprepayment charges or the interests of the Certificateholders, the party discovering such breach shall give prompt written notice thereof to the other parties. Within 90 days of the discovery of a breach of any representation or warranty given to the Trustee by the Depositor, the Seller and assigned to the Trustee, the Depositor, or the Seller shall either (a) cure such breach in all material respects, (b) repurchase such Mortgage Loan or any property acquired in respect thereof from the Trustee at the Purchase Price or (c) within the two year period following the Closing Date, substitute a Replacement Mortgage Loan for the affected Mortgage Loan. In the event of discovery of a breach of any representation and warranty of the Seller or the Depositor, the Trustee shall enforce its rights under the Sale Agreement or thereunder for the benefit of Certificateholders and the NIM Insurer. If a breach of the representations and warranties set forth in the Sale Agreement hereof exists solely due to the unenforceability of a prepayment charge, the Trustee shall notify the NIM Insurer thereof and not seek to enforce the repurchase remedy provided for herein unless directed in writing to do so by the NIM Insurer. In the event of a breach of the representations and warranties with respect to the Mortgage Loans set forth in a Sale Agreement, the Trustee shall at the request of the NIM Insurer enforce the right of the Trust Fund and the NIM Insurer to be indemnified for such breach of representation and warranty. In the event that such breach relates solely to the unenforceability of a prepayment charge, amounts received in respect of such indemnity up to the amount of such prepayment charge shall be distributed pursuant to Section 4.04(b)(i)(B). As provided in the Sale Agreement, if the Seller substitutes for a Mortgage Loan for which there is a breach of any representations and warranties which adversely and materially affects the value of such Mortgage Loan and such substitute mortgage loan is not a Replacement Mortgage Loan, under the terms of the Sale Agreement, the Seller will, in exchange for such substitute Mortgage Loan, (i) provide the applicable Purchase Price for the affected Mortgage Loan or (ii) within two years of the Closing Date, substitute such affected Mortgage Loan with a Replacement Mortgage Loan. Any such substitution shall not be effected prior to the additional delivery to the Trustee of a Request for Release substantially in the form of Exhibit I and shall not be effected unless it is within two years of the Startup Date. As provided in the Sale Agreement, the Seller indemnifies and holds the Trust Fund, the Trustee, the Depositor, the NIM Insurer, the Servicer and each Certificateholder harmless against any and all taxes, claims, losses, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, fees and expenses that the Trust Fund, the Trustee, the Depositor, the NIM Insurer, the Servicer and any Certificateholder may sustain in connection with any actions of the Seller relating to a repurchase of a Mortgage Loan other than in compliance with the terms of this Section 2.03 and the Sale Agreement, to the extent that any such action causes (i) any federal or state tax to be imposed on the Trust Fund or any REMIC provided for herein, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup date" under Section 860(d)(1) of the Code, or (ii) any REMIC created hereunder to fail to qualify as a REMIC at any time that any Certificate is outstanding. With respect to any Mortgage Loan repurchased by the Depositor pursuant to this Agreement or by the Seller pursuant to the Sale Agreement, the principal portion of the funds received by the Servicer in respect of such repurchase of a Mortgage Loan will be considered a Principal Prepayment and shall be deposited by the Servicer in the Certificate Account pursuant to Section 3.05. The Trustee, upon receipt of the full amount of the Purchase Price for a Deleted Mortgage Loan, or upon receipt of the Mortgage File for a Replacement Mortgage Loan substituted for a Deleted Mortgage Loan, shall release or cause to be released and reassign to the Depositor or the Seller, as applicable, the related Mortgage File for the Deleted Mortgage Loan and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation or warranty, as shall be necessary to vest in such party or its designee or assignee title to any Deleted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Trustee, and the Trustee shall not have any further responsibility with respect to the Mortgage File relating to such Deleted Mortgage Loan. With respect to each Replacement Mortgage Loan to be delivered to the Trustee pursuant to the terms of this Article II in exchange for a Deleted Mortgage Loan: (i) the Depositor or the Seller, as applicable, must deliver to the Trustee the Mortgage File for the Replacement Mortgage Loan containing the documents set forth in Section 2.01 along with a written certification certifying as to the delivery of such Mortgage File and containing the granting language set forth in the first sentence of Section 2.01; and (ii) the Depositor will be deemed to have made, with respect to such Replacement Mortgage Loan, each of the representations and warranties made by it with respect to the related Deleted Mortgage Loan. The Trustee shall review the Mortgage File with respect to each Replacement Mortgage Loan and certify to the NIM Insurer and the Depositor that all documents required by Section 2.01 have been executed and received. For any month in which the Seller substitutes one or more Replacement Mortgage Loans for one or more Deleted Mortgage Loans, the Seller will determine the amount (if any) by which the aggregate principal balance of all such Replacement Mortgage Loans as of the date of substitution and the aggregate prepayment penalties with respect to such Replacement Mortgage Loans is less than the aggregate Stated Principal Balance (after application of the principal portion of the Scheduled Payment due in the month of substitution) and aggregate prepayment penalties of all such Deleted Mortgage Loans. An amount equal to the aggregate of the deficiencies described in the preceding sentence (such amount, the "Substitution Adjustment Amount") shall be delivered by the Seller to the Servicer for deposit into the Collection Account on the Determination Date for the Distribution Date relating to the Prepayment Period during which the related Mortgage Loan became required to be purchased or replaced hereunder. The Seller shall give or cause to be given written notice to the Certificateholders and the NIM Insurer that such substitution has taken place, shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Replacement Mortgage Loan or Replacement Mortgage Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the NIM Insurer and the Trustee. Upon such substitution by the Seller, such Replacement Mortgage Loan or Replacement Mortgage Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and the Sale Agreement, including all applicable representations and warranties thereof included in the Sale Agreement as of the date of substitution. In addition, the Seller shall obtain at its own expense and deliver to the Trustee and the NIM Insurer an Opinion of Counsel addressed to the Trustee and the NIM Insurer to the effect that such substitution will not (a) cause any federal tax to be imposed on the Trust Fund or any REMIC provided for herein, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup date" under Section 860G(d)(1) of the Code or (b) adversely affect the status of any REMIC provided for herein as a REMIC. If any such Opinion of Counsel can not be delivered, then such substitution may only be effected at such time as the required Opinion of Counsel can be given.
(d) It is understood and agreed that the representations, warranties and indemnification (i) set forth in this Section 2.03 and (ii) of the Seller and the Depositor set forth in the Sale Agreement and assigned to the Trustee by the Depositor hereunder shall each survive delivery of the Mortgage Files and the Assignment of Mortgage of each Mortgage Loan to the Trustee and shall continue throughout the term of this Agreement.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Inc)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, represents and warrants and covenants to the TrusteeServicer, for its own benefit Trustee and the benefit of the Certificateholders, and to the Fiscal Agent, the Master Servicer and the Special ServicerNIMs Insurer as follows, as of the Closing Date, thatdate hereof:
(i) The Depositor is duly organized and is validly existing as a corporation duly organized, validly existing and in good standing under the laws of the State of DelawareDelaware and has full power and authority (corporate and other) necessary to own or hold its properties and to conduct its business as now conducted by it and to enter into and perform its obligations under this Agreement and the Sale Agreement.
(ii) The Depositor has the full corporate power and authority to execute, deliver and perform, and to enter into and consummate the Depositor transactions contemplated by this Agreement and the Sale Agreement and has taken duly authorized, by all necessary corporate action to authorize on its part, the execution, delivery and performance of this Agreement by it, and has the power Sale Agreement; and authority to execute, deliver and perform this Agreement and all the transactions contemplated herebySale Agreement, including, but not limited to, the power and authority to sell, assign and transfer the Mortgage Loans in accordance with this Agreement;
(ii) Assuming assuming the due authorization, execution and delivery of this Agreement hereof by each the other party parties hereto, this Agreement and all of the obligations of the Depositor hereunder are the constitutes a legal, valid and binding obligations obligation of the Depositor, enforceable against the Depositor in accordance with the terms of this Agreementits terms, except subject, as such enforcement may be limited by to enforceability, to (i) bankruptcy, insolvency, reorganization or reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally, generally and by (ii) general principles of equity (equity, regardless of whether such enforceability enforcement is considered sought in a proceeding in equity or at law);.
(iii) The execution and delivery of this Agreement and the performance of its obligations hereunder Sale Agreement by the Depositor, the consummation of the transactions contemplated by this Agreement and the Sale Agreement, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Depositor and will not conflict with any provisions of any law or regulations to which the Depositor is subject, or conflict with, (A) result in a material breach of any term or constitute a default under any provision of the terms, conditions charter or provisions of the certificate of incorporation or the by-laws of the Depositor or (B) materially conflict with, result in a violation or acceleration of, or result in a material default under, the terms of any indenture, other material agreement or instrument to which the Depositor is a party or by which it is boundmay be bound or (C) constitute a material violation of any statute, or any order or decree regulation applicable to the Depositor of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Depositor; and the Depositor is not in breach or violation of any material indenture or other material agreement or instrument, or result in the creation or imposition violation of any lien on statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Depositor's ability to perform or meet any of its obligations under this Agreement.
(iv) No litigation is pending, or, to the best of the Depositor's assets or propertyknowledge, which threatened, against the Depositor that would materially and adversely affect the execution, delivery or enforceability of this Agreement and the Sale Agreement or the ability of the Depositor to carry out perform its obligations under this Agreement and the transactions contemplated by this Agreement; Sale Agreement in accordance with the Depositor has obtained any terms hereof.
(v) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Depositor of, or compliance by the Depositor with, this Agreement and the Sale Agreement or the consummation of this Agreement;
(iv) There the transactions contemplated hereby, or if any such consent, approval, authorization or order is no actionrequired, suit or proceeding pending or, the Depositor has obtained the same. The Depositor hereby represents and warrants to the Depositor's knowledgeTrustee with respect to each Mortgage Loan as of the Closing Date, threatened against and following the Depositor in any court or by or before any other governmental agency or instrumentality which would materially and adversely affect the validity transfer of the Mortgage Loans or to it by the ability of Seller, the Depositor had good title to carry out the transactions contemplated by this Agreement; and
(v) The Depositor is the lawful owner of the Mortgage Loans free and clear of all liensthe Mortgage Notes were subject to no offsets, claims, encumbrances liens, mortgage, pledge, charge, security interest, defenses or counterclaims.
(b) The representations and other interests warranties of each Transferor with respect to the full right related Mortgage Loans in the applicable Transfer Agreement, which have been assigned to transfer the Trustee hereunder, were made as of the date specified in the applicable Transfer Agreement and brought forward to the Closing Date pursuant to the related Bring Down Letter. The representations and warranties of each Transferor with respect to the Mortgage Loans contained in the Bring Down Letter were made as of the Closing Date. The representations and warranties of the Seller with respect to the Trust and the Mortgage Loans contained in the Sale Agreement were made as of the Closing Date. To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of both (i) a representation or warranty of the applicable Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under the Sale Agreement, the only right or remedy of the Trustee, the NIMs Insurer or of any Certificateholder shall be the Trustee's right to enforce the obligations of the applicable Transferor under any applicable representation or warranty made by it. Unless otherwise stated in the Sale Agreement, the Trustee acknowledges that the Seller shall have been validly transferred no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the TrustMortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in the related Transfer Agreement, without regard to whether the Transferors fulfills its contractual obligations in respect of such representation or warranty. The representationsTrustee also acknowledges that the Seller shall have no obligation or liability with respect to any breach of a representation or warranty made solely by the Transferors with respect to the Mortgage Loans, warranties and covenants without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty. The Trustee further acknowledges that the Depositor shall have no obligation or liability with respect to any breach of any representation or warranty with respect to the Mortgage Loans (except as set forth in Section 2.03(a)(v)) under any circumstances. In addition to the representations and warranties of the Transferors in the Transfer Agreements that were brought forward to the Closing Date pursuant to the Bring Down Letter, with respect to each Mortgage Loan, each Transferor made certain additional covenants regarding such Mortgage Loan, as set forth in the related Transfer Agreement. With respect to any breach of such additional covenants that materially and adversely affects the interests of the Certificateholders in such Mortgage Loan, the Seller shall (1) use reasonable efforts to enforce such covenant against the related Transferor and (2) if the Seller successfully enforces any obligation of the related Transferor to repurchase such Mortgage Loan, the Seller shall repurchase such Mortgage Loan in accordance with this Section 2.04 shall survive 2.03. If the execution and delivery of this Agreement and shall inure to Seller does not successfully enforce the benefit obligation, if any, of the Persons for whose benefit they were made for so long as Transferor to repurchase a Mortgage Loan with respect to any breach of any such additional covenants, the Trust Fund remains in existence. Seller shall have no obligation or right to repurchase or cure such Mortgage Loan.
(c) Upon discovery by any party hereto of any the Depositor, the Servicer, the NIMs Insurer or the Trustee of a breach of any of such representationsrepresentations and warranties that adversely and materially affects the value of the related Mortgage Loan, warranties and covenantsPrepayment Charges or the interests of the Certificateholders, the party discovering such breach shall give prompt written notice thereof to the other parties.. Within 90 days of the discovery of such breach of any representation or warranty, the applicable Transferor or the Seller, as applicable, shall either (a) cure such breach in all material respects, (b) repurchase such Mortgage Loan or any property acquired in respect thereof from the Trustee at the Purchase Price or (c) within the two year period following the Closing Date, substitute a Replacement Mortgage Loan for the affected Mortgage Loan. In the event of discovery of a breach of any representation and warranty of any Transferor, the Depositor or the Seller, the Trustee shall enforce its rights under the applicable Transfer Agreement and the Sale Agreement for the benefit of Certificateholders and the NIMs Insurer. If a breach of the representations and warranties set forth in the Transfer Agreement hereof exists solely due to the unenforceability of a Prepayment Charge, the Trustee shall notify the NIMs Insurer thereof and not seek to enforce the repurchase remedy provided for herein unless directed in writing to do so by the NIMs Insurer. In the event of a breach of the representations and warranties with respect to the Mortgage Loans set forth in a Transfer Agreement, the Trustee shall at the request of the NIMs Insurer enforce the right of the Trust Fund and the NIMs Insurer to be indemnified for such breach of representation and warranty. In the event that such breach relates solely to the unenforceability of a Prepayment Charge, amounts received in respect of such indemnity up to the amount of such Prepayment Charge shall be distributed pursuant to Section 4.04(b)(i). As provided in the Sale Agreement, if the Transferor substitutes for a Mortgage Loan for which there is a breach of any representations and warranties in the related Transfer Agreement which adversely and materially affects the value of such Mortgage Loan and such substitute mortgage loan is not a Replacement Mortgage Loan, under the terms of the Sale Agreement, the Seller will, in exchange for such substitute Mortgage Loan, (i) provide the applicable Purchase Price for the affected Mortgage Loan or (ii) within two years of the Closing Date, substitute such affected Mortgage Loan with a Replacement Mortgage Loan. Any such substitution shall not be effected prior to the additional delivery to the Trustee of a Request for Release substantially in the form of Exhibit I and shall not be effected unless it is within two years of the Startup Day. As provided in the Sale Agreement, the Seller indemnifies and holds the Trust Fund, the Trustee, the Depositor, the NIMs Insurer, the Servicer and each Certificateholder harmless against any and all taxes, claims, losses, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, fees and expenses that the Trust Fund, the Trustee, the Depositor, the NIMs Insurer, the Servicer and any Certificateholder may sustain in connection with any actions of the Seller relating to a repurchase of a Mortgage Loan other than in compliance with the terms of this Section 2.03 and the Sale Agreement, to the extent that any such action causes (i) any federal or state tax to be imposed on the Trust Fund or any REMIC provided for herein, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup day" under Section 860(d)(1) of the Code, or (ii) any REMIC created hereunder to fail to qualify as a REMIC at any time that any Certificate is outstanding. With respect to any Mortgage Loan repurchased by the Depositor pursuant to this Agreement, by the Seller pursuant to the Sale Agreement or by any Transferor pursuant to the applicable Transfer Agreement, the principal portion of the funds received by the Servicer in respect of such repurchase of a Mortgage Loan will be considered a Principal Prepayment and shall be deposited by the Servicer in the Collection Account pursuant to Section 3.05 and the Servicer shall notify the Trustee of its receipt of the same. The Trustee, upon receipt of the full amount of the Purchase Price for a Deleted Mortgage Loan, or upon receipt of the Mortgage File for a Replacement Mortgage Loan substituted for a Deleted Mortgage Loan, shall release or cause to be released and reassign to the Depositor, the Seller or the applicable Transferor, as applicable, the related Mortgage File for the Deleted Mortgage Loan and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation or warranty, as shall be necessary to vest in such party or its designee or assignee title to any Deleted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Trustee, and the Trustee shall not have any further responsibility with respect to the Mortgage File relating to such Deleted Mortgage Loan. With respect to each Replacement Mortgage Loan to be delivered to the Trustee pursuant to the terms of this Article II in exchange for a Deleted Mortgage Loan: (i) the Depositor, the applicable Transferor or the Seller, as applicable, must deliver to the Trustee (or its custodian) the Mortgage File for the Replacement Mortgage Loan containing the documents set forth in Section 2.01 along with a written certification certifying as to the satisfaction by such Mortgage Loan of all requirements under the definition of Replacement Mortgage Loan and the delivery of such Mortgage File, and containing the granting language set forth in Section 2.01; and (ii) the Depositor will be deemed to have made, with respect to such Replacement Mortgage Loan, each of the representations and warranties made by it with respect to the related Deleted Mortgage Loan. The Trustee shall review the Mortgage File with respect to each Replacement Mortgage Loan and certify to the NIMs Insurer and the Depositor that all documents required by Section 2.01 have been executed and received. For any month in which the Seller substitutes one or more Replacement Mortgage Loans for one or more Deleted Mortgage Loans, the Seller will determine the amount (if any) by which the aggregate principal balance of all such Replacement Mortgage Loans as of the date of substitution and the aggregate Prepayment Charges with respect to such Replacement Mortgage Loans is less than the aggregate Stated Principal Balance (after application of the principal portion of the Scheduled Payment due in the month of substitution) and aggregate Prepayment Charges of all such Deleted Mortgage Loans. An amount equal to the aggregate of the deficiencies described in the preceding sentence (such amount, the "Substitution Adjustment Amount") plus an amount equal to any unreimbursed costs, penalties and/or damages incurred by the Trust Fund in connection with any violation relating to such Deleted Mortgage Loan of any predatory or abusive lending law shall be remitted by the Seller to the Servicer for deposit into the Collection Account on the Determination Date for the Distribution Date relating to the Prepayment Period during which the related Mortgage Loan became required to be purchased or replaced hereunder. Notwithstanding any other provision of this Agreement, the right to substitute Mortgage Loans pursuant to this Article II shall be subject to the additional limitations that no substitution of a Replacement Mortgage Loan for a Deleted Mortgage Loan shall be made unless the Trustee and the NIMs Insurer shall have received an Opinion of Counsel (at the expense of the party seeking to make the substitution) that, under current law, such substitution will not (A) affect adversely the status of any REMIC established hereunder as a REMIC, or of the related "regular interests" as "regular interests" in any such REMIC, or (B) cause any such REMIC to engage in a "prohibited transaction" or prohibited contribution pursuant to the REMIC Provisions. The Trustee shall cause the relevant Mortgage Loan Schedules to be amended in accordance with the terms of this Agreement. The Seller shall give or cause to be given written notice to the Certificateholders and the NIMs Insurer that such substitution has taken place, shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Replacement Mortgage Loan or Replacement Mortgage Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the NIMs Insurer, the Servicer and the Trustee. Upon such substitution by the Seller, such Replacement Mortgage Loan or Replacement Mortgage Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to th
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Inc)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, warrants and covenants to the Trustee, for its own benefit and the benefit of the Certificateholders, Certificateholders and to the Fiscal Agent, the Master Servicer and the Special Servicer, as of the Closing Date, that:
(i) The Depositor is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, and the Depositor has taken all necessary corporate action to authorize the execution, delivery and performance of this Agreement by it, and has the power and authority to execute, deliver and perform this Agreement and all the transactions contemplated hereby, including, but not limited to, the power and authority to sell, assign and transfer the Mortgage Loans in accordance with this Agreement;
(ii) Assuming the due authorization, execution and delivery of this Agreement by each other party hereto, this Agreement and all of the obligations of the Depositor hereunder are the legal, valid and binding obligations of the Depositor, enforceable against the Depositor in accordance with the terms of this Agreement, except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally, and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law);
(iii) The execution and delivery of this Agreement and the performance of its obligations hereunder by the Depositor will not conflict with any provisions of any law or regulations to which the Depositor is subject, or conflict with, result in a breach of or constitute a default under any of the terms, conditions or provisions of the certificate of incorporation or the by-laws of the Depositor or any indenture, agreement or instrument to which the Depositor is a party or by which it is bound, or any order or decree applicable to the Depositor, or result in the creation or imposition of any lien on any of the Depositor's assets or property, which would materially and adversely affect the ability of the Depositor to carry out the transactions contemplated by this Agreement; the Depositor has obtained any consent, approval, authorization or order of any court or governmental agency or body required for the execution, delivery and performance by the Depositor of this Agreement;
(iv) There is no action, suit or proceeding pending or, to the Depositor's knowledge, threatened against the Depositor in any court or by or before any other governmental agency or instrumentality which would materially and adversely affect the validity of the Mortgage Loans or the ability of the Depositor to carry out the transactions contemplated by this Agreement; and
(v) The Depositor is the lawful owner of the Mortgage Loans free and clear of all liens, claims, encumbrances and other interests with the full right to transfer the Mortgage Loans to the Trust and the Mortgage Loans have been validly transferred to the Trust. The representations, warranties and covenants of the Depositor set forth in this Section 2.04 shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any breach of any of such representations, warranties and covenants, the party discovering such breach shall give prompt written notice thereof to the other parties.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (CWCapital Commercial Funding Corp.)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, represents and warrants and covenants to the TrusteeServicer, for its own benefit the Trustee and the benefit of the Certificateholders, and to the Fiscal Agent, the Master Servicer and the Special ServicerNIMs Insurer as follows, as of the Closing Date, thatdate hereof:
(i) The Depositor is duly organized and is validly existing as a corporation duly organized, validly existing and in good standing under the laws of the State of DelawareDelaware and has full power and authority (corporate and other) necessary to own or hold its properties and to conduct its business as now conducted by it and to enter into and perform its obligations under this Agreement and the Sale Agreement.
(ii) The Depositor has the full corporate power and authority to execute, deliver and perform, and to enter into and consummate the Depositor transactions contemplated by, this Agreement and the Sale Agreement and has taken duly authorized, by all necessary corporate action to authorize on its part, the execution, delivery and performance of this Agreement by it, and has the power Sale Agreement; and authority to execute, deliver and perform this Agreement and all the transactions contemplated herebySale Agreement, including, but not limited to, the power and authority to sell, assign and transfer the Mortgage Loans in accordance with this Agreement;
(ii) Assuming assuming the due authorization, execution and delivery of this Agreement hereof by each the other party parties hereto, this Agreement and all of the obligations of the Depositor hereunder are the constitutes a legal, valid and binding obligations obligation of the Depositor, enforceable against the Depositor in accordance with the terms of this Agreementits terms, except subject, as such enforcement may be limited by to enforceability, to (i) bankruptcy, insolvency, reorganization or reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally, generally and by (ii) general principles of equity (equity, regardless of whether such enforceability enforcement is considered sought in a proceeding in equity or at law);.
(iii) The execution and delivery of this Agreement and the performance of its obligations hereunder Sale Agreement by the Depositor, the consummation of the transactions contemplated by this Agreement and the Sale Agreement, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Depositor and will not conflict with any provisions of any law or regulations to which the Depositor is subject, or conflict with, (A) result in a material breach of any term or constitute a default under any provision of the terms, conditions charter or provisions of the certificate of incorporation or the by-laws of the Depositor or (B) materially conflict with, result in a violation or acceleration of, or result in a material default under, the terms of any indenture, other material agreement or instrument to which the Depositor is a party or by which it is boundmay be bound or (C) constitute a material violation of any statute, or any order or decree regulation applicable to the Depositor of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Depositor; and the Depositor is not in breach or violation of any material indenture or other material agreement or instrument, or result in the creation or imposition violation of any lien on statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Depositor's ability to perform or meet any of its obligations under this Agreement.
(iv) No litigation is pending, or, to the best of the Depositor's assets or propertyknowledge, which threatened, against the Depositor that would materially and adversely affect the execution, delivery or enforceability of this Agreement and the Sale Agreement or the ability of the Depositor to carry out perform its obligations under this Agreement and the transactions contemplated by this Agreement; Sale Agreement in accordance with the Depositor has obtained any terms hereof.
(v) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Depositor of, or compliance by the Depositor with, this Agreement and the Sale Agreement or the consummation of this Agreement;
(iv) There the transactions contemplated hereby, or if any such consent, approval, authorization or order is no actionrequired, suit or proceeding pending or, the Depositor has obtained the same. The Depositor hereby represents and warrants to the Depositor's knowledgeTrustee with respect to each Mortgage Loan as of the Closing Date, threatened against and following the Depositor in any court or by or before any other governmental agency or instrumentality which would materially and adversely affect the validity transfer of the Mortgage Loans or to it by the ability of Sponsor, the Depositor had good title to carry out the transactions contemplated by this Agreement; and
(v) The Depositor is the lawful owner of the Mortgage Loans free and clear of all liensthe Mortgage Notes were subject to no offsets, claims, encumbrances liens, mortgage, pledge, charge, security interest, defenses or counterclaims.
(b) The representations and other interests warranties of the Seller with the full right respect to transfer the Mortgage Loans in the Sale Agreement, which have been assigned to the Trust and Trustee hereunder, were made as of the Closing Date as specified in the Sale Agreement. To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of a representation or warranty of the Seller under the Sale Agreement, the only right or remedy of the Trustee or any Certificateholder shall be the Trustee' right to enforce the obligations of the Seller under any applicable representation or warranty made by it. The Trustee acknowledges that the Depositor shall have no obligation or liability with respect to any breach of any representation or warranty with respect to the Mortgage Loans have been validly transferred to the Trust. The representations, warranties and covenants of the Depositor (except as set forth in this Section 2.04 shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. 2.03(a)(v)) under any circumstances.
(c) Upon discovery by any party hereto of any the Depositor, the Servicer, the Seller, the Trustee (or its custodian) or the NIMs Insurer of a breach of any of such representationsrepresentations and warranties set forth in the Sale Agreement that adversely and materially affects the value of the related Mortgage Loan, warranties and covenantsPrepayment Charges or the interests of the Certificateholders, the party discovering such breach shall give prompt written notice thereof to the other parties. Within ninety (90) days of the discovery of such breach of any representation or warranty, the Depositor shall cause the Seller to either (a) cure such breach in all material respects, (b) repurchase such Mortgage Loan or any property acquired in respect thereof from the Trustee at the Purchase Price or (c) within the two year period following the Closing Date, substitute a Replacement Mortgage Loan for the affected Mortgage Loan. If a breach of the representations and warranties set forth in the Purchase Agreement hereof exists solely due to the unenforceability of a Prepayment Charge, the Trustee or the other party having notice thereof shall notify the Servicer thereof and not seek to enforce the repurchase remedy provided for herein unless such Mortgage Loan is not current. In the event that such breach relates solely to the unenforceability of a Prepayment Charge, amounts received in respect of such indemnity up to the amount of such Prepayment Charge shall be distributed pursuant to Section 4.04(b)(i). As provided in the Sale Agreement, if the Seller substitutes for a Mortgage Loan for which there is a breach of any representation or warranty in the Sale Agreement, as applicable, which adversely and materially affects the value of such Mortgage Loan and such substitute mortgage loan is not a Replacement Mortgage Loan, under the terms of the Sale Agreement, the Seller will, in exchange for such substitute Mortgage Loan, (i) provide the applicable Purchase Price for the affected Mortgage Loan or (ii) within two years of the Closing Date, substitute such affected Mortgage Loan with a Replacement Mortgage Loan. Any such substitution shall not be effected prior to the additional delivery to the Trustee of a Request for Release substantially in the form of Exhibit I and shall not be effected unless it is within two years of the Startup Day. With respect to any Mortgage Loan repurchased by the Seller pursuant to the Sale Agreement, as applicable, the principal portion of the funds received by the Servicer in respect of such repurchase of a Mortgage Loan will be considered a Principal Prepayment and shall be deposited in the Certificate Account pursuant to Section 3.05. Upon receipt by the Trustee of notice from the Servicer of receipt by the Servicer of the full amount of the Purchase Price for a Deleted Mortgage Loan, and upon receipt by the Trustee of the Mortgage File for a Replacement Mortgage Loan substituted for a Deleted Mortgage Loan and a Request for Release, the Trustee shall release and reassign to the Seller the related Mortgage File for the Deleted Mortgage Loan and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation or warranty, as shall be necessary to vest in such party or its designee or assignee title to any Deleted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Depositor or the Seller, and the Trustee (and its custodian) shall have no further responsibility with respect to the Mortgage File relating to such Deleted Mortgage Loan. With respect to each Replacement Mortgage Loan to be delivered to the Trustee pursuant to the terms of this Article II in exchange for a Deleted Mortgage Loan: (i) the Seller must deliver to the Trustee the Mortgage File for the Replacement Mortgage Loan containing the documents set forth in Section 2.01 along with a written certification certifying as to the Mortgage Loan satisfying all requirements under the definition of Replacement Mortgage Loan and the delivery of such Mortgage File and containing the granting language set forth in Section 2.01; and (ii) the Depositor will be deemed to have made, with respect to such Replacement Mortgage Loan, each of the representations and warranties made by it with respect to the related Deleted Mortgage Loan. The Trustee shall review the Mortgage File with respect to each Replacement Mortgage Loan and certify to the Depositor that all documents required by Section 2.01(A)-(B), (C) (if applicable), and (D)-(E) have been executed and received. For any month in which a Seller substitutes one or more Replacement Mortgage Loans for one or more Deleted Mortgage Loans, the Seller will determine the amount (if any) by which the aggregate principal balance of all such Replacement Mortgage Loans as of the date of substitution and the aggregate Prepayment Charges with respect to such Replacement Mortgage Loans is less than the aggregate Stated Principal Balance (after application of the principal portion of the Scheduled Payment due in the month of substitution) and aggregate Prepayment Charges of all such Deleted Mortgage Loans. An amount equal to the aggregate of the deficiencies described in the preceding sentence (such amount, the "Substitution Adjustment Amount") plus an amount equal to any unreimbursed costs, penalties and/or damages incurred by the Trust Fund in connection with any violation relating to such Deleted Mortgage Loan of any predatory or abusive lending law shall be remitted by the Seller to the Trustee for deposit into the Certificate Account by the Seller on the Determination Date for the Distribution Date relating to the Prepayment Period during which the related Mortgage Loan became required to be purchased or replaced hereunder. Notwithstanding any other provision of this Agreement, the right to substitute Mortgage Loans pursuant to this Article II shall be subject to the additional limitations that no substitution of a Replacement Mortgage Loan for a Deleted Mortgage Loan shall be made unless the Trustee shall have received an Opinion of Counsel (at the expense of the party seeking to make the substitution) that, under current law, such substitution will not (A) affect adversely the status of any REMIC established hereunder as a REMIC, or of the related "regular interests" as "regular interests" in any such REMIC, or (B) cause any such REMIC to engage in a "prohibited transaction" or prohibited contribution pursuant to the REMIC Provisions. The Depositor shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Replacement Mortgage Loan or Replacement Mortgage Loans. Upon such substitution by the Seller, such Replacement Mortgage Loan or Replacement Mortgage Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and the Sale Agreement, as applicable, including all applicable representations and warranties thereof included in the Sale Agreement, as applicable, as of the date of substitution.
(d) It is understood and agreed that the representations, warranties and indemnification (i) set forth in this Section 2.03 and (ii) of the Seller set forth in the Sale Agreement and assigned to the Trustee by the Depositor hereunder shall each survive delivery of the Mortgage Files and the Assignment of Mortgage of each Mortgage Loan to the Trustee and shall continue throughout the term of this Agreement.
(e) The Depositor shall deliver a copy of the Mortgage Loan Schedule to the Servicer on the Closing Date.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Trust, Series 2007-Sd1)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, warrants and covenants to the Trustee, for its own benefit and the benefit of the Certificateholders, and to the Fiscal Agent, the Master Servicer and the Special Servicer, as of the Closing Date, that:
(i) The Depositor is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, and the Depositor has taken all necessary corporate action to authorize the execution, delivery and performance of this Agreement by it, and has the power and authority to execute, deliver and perform this Agreement and all the transactions contemplated hereby, including, but not limited to, the power and authority to sell, assign and transfer the Mortgage Loans in accordance with this Agreement;
(ii) Assuming the due authorization, execution and delivery of this Agreement by each other party hereto, this Agreement and all of the obligations of the Depositor hereunder are the legal, valid and binding obligations of the Depositor, enforceable against the Depositor in accordance with the terms of this Agreement, except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally, and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law);
(iii) The execution and delivery of this Agreement and the performance of its obligations hereunder by the Depositor will not conflict with any provisions of any law or regulations to which the Depositor is subject, or conflict with, result in a breach of or constitute a default under any of the terms, conditions or provisions of the certificate of incorporation or the by-laws of the Depositor or any indenture, agreement or instrument to which the Depositor is a party or by which it is bound, or any order or decree applicable to the Depositor, or result in the creation or imposition of any lien on any of the Depositor's assets or property, which would materially and adversely affect the ability of the Depositor to carry out the transactions contemplated by this Agreement; the Depositor has obtained any consent, approval, authorization or order of any court or governmental agency or body required for the execution, delivery and performance by the Depositor of this Agreement;
(iv) There is no action, suit or proceeding pending or, to the Depositor's knowledge, threatened against the Depositor in any court or by or before any other governmental agency or instrumentality which would materially and adversely affect the validity of the Mortgage Loans or the ability of the Depositor to carry out the transactions contemplated by this Agreement; and
(v) The Depositor is the lawful owner of the Mortgage Loans (other than the Oakmonte Senior Portion) and the Oakmonte Apartment Homes Whole Loan free and clear of all liens, claims, encumbrances and other interests with the full right to transfer the Mortgage Loans (other than the Oakmonte Senior Portion) and the Oakmonte Apartment Homes Whole Loan to the Trust and the Mortgage Loans (other than the Oakmonte Senior Portion) and the Oakmonte Apartment Homes Whole Loan have been validly transferred to the Trust. The representations, warranties and covenants of the Depositor set forth in this Section 2.04 shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of any breach of any of such representations, warranties and covenants, the party discovering such breach shall give prompt written notice thereof to the other parties.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Greenwich Capital Commercial Fund Corp Comm Mort Tr 2003-C1)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, represents and warrants and covenants to the Trustee, for its own benefit and the benefit of the Certificateholders, and to the Fiscal Agent, the Master Servicer and the Special ServicerTrustee as follows, as of the Closing Date, thatdate hereof:
(i) The Depositor is duly organized and is validly existing as a corporation duly organized, validly existing and in good standing under the laws of the State of DelawareDelaware and has full power and authority (corporate and other) necessary to own or hold its properties and to conduct its business as now conducted by it and to enter into and perform its obligations under this Agreement and the Sale Agreement.
(ii) The Depositor has the full corporate power and authority to execute, deliver and perform, and to enter into and consummate the Depositor transactions contemplated by, this Agreement and the Sale Agreements and has taken duly authorized, by all necessary corporate action to authorize on its part, the execution, delivery and performance of this Agreement by it, and has the power Sale Agreements; and authority to execute, deliver and perform this Agreement and all the transactions contemplated herebySale Agreements, including, but not limited to, the power and authority to sell, assign and transfer the Mortgage Loans in accordance with this Agreement;
(ii) Assuming assuming the due authorization, execution and delivery of this Agreement hereof by each the other party parties hereto, this Agreement and all of the obligations of the Depositor hereunder are the constitutes a legal, valid and binding obligations obligation of the Depositor, enforceable against the Depositor in accordance with the terms of this Agreementits terms, except subject, as such enforcement may be limited by to enforceability, to (i) bankruptcy, insolvency, reorganization or reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally, generally and by (ii) general principles of equity (equity, regardless of whether such enforceability enforcement is considered sought in a proceeding in equity or at law);.
(iii) The execution and delivery of this Agreement and the performance of its obligations hereunder Sale Agreements by the Depositor, the consummation of the transactions contemplated by this Agreement and the Sale Agreements, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Depositor and will not conflict with any provisions of any law or regulations to which the Depositor is subject, or conflict with, (A) result in a material breach of any term or constitute a default under any provision of the terms, conditions charter or provisions of the certificate of incorporation or the by-laws of the Depositor or (B) materially conflict with, result in a violation or acceleration of, or result in a material default under, the terms of any indenture, other material agreement or instrument to which the Depositor is a party or by which it is boundmay be bound or (C) constitute a material violation of any statute, or any order or decree regulation applicable to the Depositor of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Depositor; and the Depositor is not in breach or violation of any material indenture or other material agreement or instrument, or result in the creation or imposition violation of any lien on statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Depositor's ability to perform or meet any of its obligations under this Agreement.
(iv) No litigation is pending, or, to the best of the Depositor's assets or propertyknowledge, which threatened, against the Depositor that would materially and adversely affect the execution, delivery or enforceability of this Agreement and the Sale Agreements or the ability of the Depositor to carry out perform its obligations under this Agreement and the transactions contemplated by this Agreement; Sale Agreements in accordance with the Depositor has obtained any terms hereof.
(v) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Depositor of, or compliance by the Depositor with, this Agreement and the Sale Agreements or the consummation of this Agreement;
(iv) There the transactions contemplated hereby, or if any such consent, approval, authorization or order is no actionrequired, suit or proceeding pending or, the Depositor has obtained the same. The Depositor hereby represents and warrants to the Depositor's knowledgeTrustee with respect to each Mortgage Loan as of the Closing Date, threatened against and following the Depositor in any court or by or before any other governmental agency or instrumentality which would materially and adversely affect the validity transfer of the Mortgage Loans or to it by the ability of related Seller, the Depositor had good title to carry out the transactions contemplated by this Agreement; and
(v) The Depositor is the lawful owner of the Mortgage Loans free and clear of all liensthe Mortgage Notes were subject to no offsets, claims, encumbrances liens, mortgage, pledge, charge, security interest, defenses or counterclaims.
(b) The representations and other interests warranties of each Transferor with respect to the full right related Mortgage Loans in the applicable Transfer Agreement, which have been assigned to transfer the Trustee hereunder, were made as of the date specified in the applicable Transfer Agreement and brought forward to the Closing Date pursuant to the related Bring Down Letter, except as otherwise noted on Exhibit J-1 or Exhibit J-2. The representations and warranties of each Transferor with respect to the Mortgage Loans contained in the Bring Down Letter were made as of the Closing Date, except as otherwise noted on Exhibit J-1 or Exhibit J-2. The representations and warranties of the related Seller with respect to the Trust and the Mortgage Loans have been validly transferred to contained in the Trust. The representations, warranties and covenants related Sale Agreement were made as of the Depositor Closing Date. To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of both (i) a representation or warranty of the applicable Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the related Seller under the related Sale Agreement, the obligations of the related Seller under the related Sale Agreement shall be enforced against the Transferor or such Seller, as applicable, as set forth in this Section 2.04 such Sale Agreement. The Trustee acknowledges that the related Seller shall survive have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to any related Mortgage Loans, except as otherwise set forth in the execution and delivery related Sale Agreement, if the fact, condition or event constituting such breach also constitutes a breach of this Agreement and a representation or warranty made by the related Transferor in the related Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty. The Trustee also acknowledges that the related Seller shall inure have no obligation or liability with respect to any breach of a representation or warranty made solely by the Transferors with respect to the benefit Mortgage Loans, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty. The Trustee further acknowledges that the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. Upon discovery by any party hereto of Depositor shall have no obligation or liability with respect to any breach of any of such representations, warranties and covenants, the party discovering such breach shall give prompt written notice thereof representation or warranty with respect to the other partiesMortgage Loans (except as set forth in Section 2.03(a)(v)) under any circumstances.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Trust Series 2005-He2)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, represents and warrants and covenants to the Trustee, for its own benefit and the benefit of the Certificateholders, and to the Fiscal AgentServicer, the Master Servicer Servicer, the Securities Administrator and the Special ServicerTrustee as follows, as of the Closing Date, thatdate hereof:
(i) The Depositor is duly organized and is validly existing as a corporation duly organized, validly existing and in good standing under the laws of the State of DelawareDelaware and has full power and authority (corporate and other) necessary to own or hold its properties and to conduct its business as now conducted by it and to enter into and perform its obligations under this Agreement and the Sale Agreement.
(ii) The Depositor has the full corporate power and authority to execute, deliver and perform, and to enter into and consummate the Depositor transactions contemplated by, this Agreement and the Sale Agreement and has taken duly authorized, by all necessary corporate action to authorize on its part, the execution, delivery and performance of this Agreement by it, and has the power Sale Agreement; and authority to execute, deliver and perform this Agreement and all the transactions contemplated herebySale Agreement, including, but not limited to, the power and authority to sell, assign and transfer the Mortgage Loans in accordance with this Agreement;
(ii) Assuming assuming the due authorization, execution and delivery of this Agreement hereof by each the other party parties hereto, this Agreement and all of the obligations of the Depositor hereunder are the constitutes a legal, valid and binding obligations obligation of the Depositor, enforceable against the Depositor in accordance with the terms of this Agreementits terms, except subject, as such enforcement may be limited by to enforceability, to (i) bankruptcy, insolvency, reorganization or reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally, generally and by (ii) general principles of equity (equity, regardless of whether such enforceability enforcement is considered sought in a proceeding in equity or at law);.
(iii) The execution and delivery of this Agreement and the performance of its obligations hereunder Sale Agreement by the Depositor, the consummation of the transactions contemplated by this Agreement and the Sale Agreement, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Depositor and will not conflict with any provisions of any law or regulations to which the Depositor is subject, or conflict with, (A) result in a material breach of any term or constitute a default under any provision of the terms, conditions charter or provisions of the certificate of incorporation or the by-laws of the Depositor or (B) materially conflict with, result in a violation or acceleration of, or result in a material default under, the terms of any indenture, other material agreement or instrument to which the Depositor is a party or by which it is boundmay be bound or (C) constitute a material violation of any statute, or any order or decree regulation applicable to the Depositor of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Depositor; and the Depositor is not in breach or violation of any material indenture or other material agreement or instrument, or result in the creation or imposition violation of any lien on statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Depositor's ability to perform or meet any of its obligations under this Agreement.
(iv) No litigation is pending, or, to the best of the Depositor's assets or propertyknowledge, which threatened, against the Depositor that would materially and adversely affect the execution, delivery or enforceability of this Agreement and the Sale Agreement or the ability of the Depositor to carry out perform its obligations under this Agreement and the transactions contemplated by this Agreement; Sale Agreement in accordance with the Depositor has obtained any terms hereof.
(v) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Depositor of, or compliance by the Depositor with, this Agreement and the Sale Agreement or the consummation of this Agreement;
(iv) There the transactions contemplated hereby, or if any such consent, approval, authorization or order is no actionrequired, suit or proceeding pending or, the Depositor has obtained the same. The Depositor hereby represents and warrants to the Depositor's knowledgeTrustee with respect to each Mortgage Loan as of the Closing Date, threatened against and following the Depositor in any court or by or before any other governmental agency or instrumentality which would materially and adversely affect the validity transfer of the Mortgage Loans or to it by the ability of Seller, the Depositor had good title to carry out the transactions contemplated by this Agreement; and
(v) The Depositor is the lawful owner of the Mortgage Loans free and clear of all liensthe Mortgage Notes were subject to no offsets, claims, encumbrances liens, mortgage, pledge, charge, security interest, defenses or counterclaims.
(b) The representations and other interests warranties of each Transferor with respect to the full right related Mortgage Loans in the applicable Transfer Agreement, which have been assigned to transfer the Trustee hereunder, were made as of the date specified in the applicable Transfer Agreement and brought forward to the Closing Date pursuant to the related Bring Down Letter. The representations and warranties of each Transferor with respect to the Mortgage Loans contained in the Bring Down Letter were made as of the Closing Date. The representations and warranties of the Seller with respect to the Trust and the Mortgage Loans have been validly transferred to contained in the Trust. The representations, warranties and covenants Sale Agreement were made as of the Depositor Closing Date. To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of both (i) a representation or warranty of the applicable Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under the Sale Agreement, the obligations of the Seller under the Sale Agreement shall be enforced against the Transferor or the Seller, as applicable, as set forth in this Section 2.04 the Sale Agreement. The Trustee acknowledges that the Seller shall survive the execution and delivery have no obligation or liability with respect to any breach of this Agreement and shall inure a representation or warranty made by it with respect to the benefit Mortgage Loans, except as otherwise set forth in the Sale Agreement, if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the Persons for whose benefit they were related Transferor in the related Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty. The Trustee also acknowledges that the Seller shall have no obligation or liability with respect to any breach of a representation or warranty made for so long as solely by the Trust Fund remains Transferors with respect to the Mortgage Loans, without regard to whether the related Transferor fulfills its contractual obligations in existencerespect of such representation or warranty. Upon discovery by any party hereto of The Trustee further acknowledges that the Depositor shall have no obligation or liability with respect to any breach of any representation or warranty with respect to the Mortgage Loans (except as set forth in Section 2.03(a)(v)) under any circumstances. In addition to the representations and warranties of the Transferors in the Transfer Agreements that were brought forward to the Closing Date pursuant to the Bring Down Letter, with respect to each Mortgage Loan, each Transferor made certain additional covenants regarding such Mortgage Loan, as set forth in the related Transfer Agreement. With respect to any breach of such representations, warranties additional covenants that materially and covenantsadversely affects the interests of the Certificateholders in such Mortgage Loan, the party discovering Seller shall (1) use reasonable efforts to enforce such breach shall give prompt written notice thereof to covenant against the other parties.related Transferor and (2) if the Seller successfully enforces any
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Trust Series 2005-Sl1)
Representations, Warranties and Covenants of the Depositor. (a) The Depositor hereby represents, represents and warrants and covenants to the TrusteeServicer, for its own benefit the Trustee and the benefit of the Certificateholders, and to the Fiscal Agent, the Master Servicer and the Special ServicerNIMs Insurer as follows, as of the Closing Date, thatdate hereof:
(i) The Depositor is duly organized and is validly existing as a corporation duly organized, validly existing and in good standing under the laws of the State of DelawareDelaware and has full power and authority (corporate and other) necessary to own or hold its properties and to conduct its business as now conducted by it and to enter into and perform its obligations under this Agreement and the Sale Agreement.
(ii) The Depositor has the full corporate power and authority to execute, deliver and perform, and to enter into and consummate the Depositor transactions contemplated by, this Agreement and the Sale Agreement and has taken duly authorized, by all necessary corporate action to authorize on its part, the execution, delivery and performance of this Agreement by it, and has the power Sale Agreement; and authority to execute, deliver and perform this Agreement and all the transactions contemplated herebySale Agreement, including, but not limited to, the power and authority to sell, assign and transfer the Mortgage Loans in accordance with this Agreement;
(ii) Assuming assuming the due authorization, execution and delivery of this Agreement hereof by each the other party parties hereto, this Agreement and all of the obligations of the Depositor hereunder are the constitutes a legal, valid and binding obligations obligation of the Depositor, enforceable against the Depositor in accordance with the terms of this Agreementits terms, except subject, as such enforcement may be limited by to enforceability, to (i) bankruptcy, insolvency, reorganization or reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally, generally and by (ii) general principles of equity (equity, regardless of whether such enforceability enforcement is considered sought in a proceeding in equity or at law);.
(iii) The execution and delivery of this Agreement and the performance of its obligations hereunder Sale Agreement by the Depositor, the consummation of the transactions contemplated by this Agreement and the Sale Agreement, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Depositor and will not conflict with any provisions of any law or regulations to which the Depositor is subject, or conflict with, (A) result in a material breach of any term or constitute a default under any provision of the terms, conditions charter or provisions of the certificate of incorporation or the by-laws of the Depositor or (B) materially conflict with, result in a violation or acceleration of, or result in a material default under, the terms of any indenture, other material agreement or instrument to which the Depositor is a party or by which it is boundmay be bound or (C) constitute a material violation of any statute, or any order or decree regulation applicable to the Depositor of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Depositor; and the Depositor is not in breach or violation of any material indenture or other material agreement or instrument, or result in the creation or imposition violation of any lien on statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Depositor's ability to perform or meet any of its obligations under this Agreement.
(iv) No litigation is pending, or, to the best of the Depositor's assets or propertyknowledge, which threatened, against the Depositor that would materially and adversely affect the execution, delivery or enforceability of this Agreement and the Sale Agreement or the ability of the Depositor to carry out perform its obligations under this Agreement and the transactions contemplated by this Agreement; Sale Agreement in accordance with the Depositor has obtained any terms hereof.
(v) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Depositor of, or compliance by the Depositor with, this Agreement and the Sale Agreement or the consummation of this Agreement;
(iv) There the transactions contemplated hereby, or if any such consent, approval, authorization or order is no actionrequired, suit or proceeding pending or, the Depositor has obtained the same. The Depositor hereby represents and warrants to the Depositor's knowledgeTrustee with respect to each Mortgage Loan as of the Closing Date, threatened against and following the Depositor in any court or by or before any other governmental agency or instrumentality which would materially and adversely affect the validity transfer of the Mortgage Loans or to it by the ability of Seller, the Depositor had good title to carry out the transactions contemplated by this Agreement; and
(v) The Depositor is the lawful owner of the Mortgage Loans free and clear of all liensthe Mortgage Notes were subject to no offsets, claims, encumbrances liens, mortgage, pledge, charge, security interest, defenses or counterclaims.
(b) The representations and other interests warranties of each Transferor with respect to the full right related Mortgage Loans in the applicable Transfer Agreement, which have been assigned to transfer the Trustee hereunder, were made as of the date specified in the applicable Transfer Agreement (or underlying agreement, if such Transfer Agreement is in the form of an assignment of a prior agreement). To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of both (i) a representation or warranty of the applicable Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under the Sale Agreement, the Trustee shall enforce the obligations of the Seller under the Sale Agreement and to the extent the Seller does not fulfill its contracted obligations then the Trustee shall enforce the obligations of the applicable Transferor under any applicable representation or warranty made by it. The Trustee further acknowledges that the Depositor shall have no obligation or liability with respect to any breach of any representation or warranty with respect to the Mortgage Loans to the Trust and the Mortgage Loans have been validly transferred to the Trust. The representations, warranties and covenants of the Depositor set forth in this Section 2.04 shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust Fund remains in existence. under any circumstances.
(c) Upon discovery by any party hereto of any the Depositor, the Servicer, the NIMs Insurer, or the Trustee of a breach of any of such representationsrepresentations and warranties that adversely and materially affects the value of the related Mortgage Loan, warranties and covenantsprepayment charges or the interests of the Certificateholders, the party discovering such breach shall give prompt written notice thereof to the other parties. Within 90 days of the discovery of a breach of any representation or warranty given to the Trustee by the Depositor, any Transferor, the Seller and assigned to the Trustee, the Depositor, such Transferor or the Seller, as applicable, shall either (a) cure such breach in all material respects, (b) repurchase such Mortgage Loan or any property acquired in respect thereof from the Trustee at the Purchase Price or (c) within the two year period following the Closing Date, substitute a Replacement Mortgage Loan for the affected Mortgage Loan. In the event of discovery of a breach of any representation and warranty of any Transferor or the Depositor, the Trustee shall enforce its rights under the applicable Transfer Agreement and the Sale Agreement for the benefit of Certificateholders and the NIMs Insurer. If a breach of the representations and warranties set forth in the Transfer Agreement hereof exists solely due to the unenforceability of a prepayment charge, the Trustee shall notify the NIMs Insurer and the Servicer thereof and not seek to enforce the repurchase remedy provided for herein unless directed in writing to do so by the NIMs Insurer or the Servicer. In the event of a breach of the representations and warranties with respect to the Mortgage Loans set forth in a Transfer Agreement, the Trustee shall at the request of the NIMs Insurer enforce the right of the Trust Fund and the NIMs Insurer to be indemnified for such breach of representation and warranty. In the event that such breach relates solely to the unenforceability of a prepayment charge, amounts received in respect of such indemnity up to the amount of such prepayment charge shall be distributed pursuant to Section 4.04(g). As provided in the Sale Agreement, if the Transferor substitutes for a Mortgage Loan for which there is a breach of any representations and warranties in the related Transfer Agreement which adversely and materially affects the value of such Mortgage Loan and such substitute mortgage loan is not a Replacement Mortgage Loan, under the terms of the Sale Agreement, the Seller will, in exchange for such substitute Mortgage Loan, (i) provide the applicable Purchase Price for the affected Mortgage Loan or (ii) within two years of the Closing Date, substitute such affected Mortgage Loan with a Replacement Mortgage Loan. Any such substitution shall not be effected prior to the additional delivery to the Trustee of a Request for Release substantially in the form of Exhibit I and shall not be effected unless it is within two years of the Startup Date. The Seller indemnifies and holds the Trust Fund, the Trustee, the Depositor, the Servicer, the NIMs Insurer and each Certificateholder harmless against any and all taxes, claims, losses, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, fees and expenses that the Trust Fund, the Trustee, the Depositor, the Servicer, the NIMs Insurer and any Certificateholder may sustain in connection with any actions of the Seller relating to a repurchase of a Mortgage Loan other than in compliance with the terms of this Section 2.03 and the Sale Agreement, to the extent that any such action causes (i) any federal or state tax to be imposed on the Trust Fund or any REMIC provided for herein, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup date" under Section 860(d)(1) of the Code, or (ii) any REMIC created hereunder to fail to qualify as a REMIC at any time that any Certificate is outstanding. In furtherance of the foregoing, if the Transferor or the Seller, as applicable, is not a member of MERS and repurchases a Mortgage Loan which is registered on the MERS System, the Transferor or the Seller, as applicable, at its own expense and without any right of reimbursement, shall cause MERS to execute and deliver an assignment of the Mortgage in recordable form to transfer the Mortgage from MERS to the Transferor or the Seller, as applicable, and shall cause such Mortgage to be removed from registration on the MERS System in accordance with MERS' rules and regulations. With respect to any Mortgage Loan repurchased by the Depositor pursuant to this Agreement, by the Seller pursuant to the Sale Agreement or by any Transferor pursuant to the applicable Transfer Agreement, the principal portion of the funds received by the Servicer in respect of such repurchase of a Mortgage Loan will be considered a Principal Prepayment and shall be deposited by the Servicer in the Collection Account pursuant to Section 3.05. The Trustee, upon receipt of the full amount of the Purchase Price for a Deleted Mortgage Loan, or upon receipt of the Mortgage File for a Replacement Mortgage Loan substituted for a Deleted Mortgage Loan, shall release or cause to be released and reassign to the Depositor, the Seller or the applicable Transferor, as applicable, the related Mortgage File for the Deleted Mortgage Loan and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation or warranty, as shall be necessary to vest in such party or its designee or assignee title to any Deleted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Trustee, and the Trustee shall not have any further responsibility with respect to the Mortgage File relating to such Deleted Mortgage Loan. With respect to each Replacement Mortgage Loan to be delivered to the Trustee pursuant to the terms of this Article II in exchange for a Deleted Mortgage Loan: (i) the Depositor, the applicable Transferor or the Seller, as applicable, must deliver to the Trustee the Mortgage File for the Replacement Mortgage Loan containing the documents set forth in Section 2.01 along with a written certification certifying as to the delivery of such Mortgage File and containing the granting language set forth in Section 2.01; and (ii) the Depositor will be deemed to have made, with respect to such Replacement Mortgage Loan, each of the representations and warranties made by it with respect to the related Deleted Mortgage Loan. The Trustee shall review the Mortgage File with respect to each Replacement Mortgage Loan and certify to the NIMs Insurer and the Depositor that all documents required by Section 2.01 have been executed and received. For any month in which the Seller substitutes one or more Replacement Mortgage Loans for one or more Deleted Mortgage Loans, the Seller will determine the amount (if any) by which the aggregate principal balance of all such Replacement Mortgage Loans as of the date of substitution and the aggregate prepayment penalties with respect to such Replacement Mortgage Loans is less than the aggregate Stated Principal Balance (after application of the principal portion of the Scheduled Payment due in the month of substitution) and aggregate prepayment penalties of all such Deleted Mortgage Loans. An amount equal to the aggregate of the deficiencies described in the preceding sentence (such amount, the "Substitution Adjustment Amount") shall be delivered by the Seller to the Servicer for deposit into the Collection Account on the Determination Date for the Distribution Date relating to the Prepayment Period during which the related Mortgage Loan became required to be purchased or replaced hereunder. Notwithstanding any other provision of this Agreement, the right to substitute Mortgage Loans pursuant to this Article II shall be subject to the additional limitations that no substitution of a Replacement Mortgage Loan for a Deleted Mortgage Loan shall be made unless the Trustee and the NIMs Insurer have received an Opinion of Counsel (at the expense of the party seeking to make the substitution) that, under current law, such substitution will not (A) affect adversely the status of any REMIC established hereunder as a REMIC, or of the related "regular interests" as "regular interests" in any such REMIC, or (B) cause any such REMIC to engage in a "prohibited transaction" or prohibited contribution pursuant to the REMIC Provisions. The Seller shall give or cause to be given written notice to the Certificateholders and the NIMs Insurer that such substitution has taken place, shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Replacement Mortgage Loan or Replacement Mortgage Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the NIMs Insurer and the Trustee. Upon such substitution by the Seller, such Replacement Mortgage Loan or Replacement Mortgage Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and the Sale Agreement, including all applicable representations and warranties thereof included in the Sale Agreement as of the date of substitution.
(d) It is understood and agreed that the representations, warranties and indemnification (i) set forth in Section 2.03, (ii) of the Seller and the Depositor set forth in the Sale Agreement and assigned to the Trustee by the Depositor hereunder and (iii) of each Transferor, assigned by the Seller to the Depositor pursuant to the Sale Agreement and assigned to the Trustee by the Depositor hereunder shall each survive delivery of the Mortgage Files and the Assignment of Mortgage of each Mortgage Loan to the Trustee and shall continue throughout the term of this Agreement.
(e) The Depositor shall deliver a copy of the Mortgage Loan Schedule to the Servicer on the Closing Date.
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Sources: Pooling and Servicing Agreement (Merrill Lynch Mortgage Asst Back Certs Ser 2003-4he)